' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
APPELLATE DIVISION
CIVIL APPEAL NO. E1156 OF 2024
JAMES KANYI…………………..…….………………………APPELLANT
VERSUS
OMONDI PETER ORONDO……………………………. RESPONDENT
( BEING AN APPEAL FROM THE JUDGMENT AND DECREE DATED 7 th DECEMBER 2023 OF HON NELLIANNE NG’ANG’A (RM) SITTING AT SMALL CLAIMS COURT AT MILLIMANI CLAIM NO E3668 OF 2023 )
BETWEEN
OMONDI PETER ORONDO……………………………..PLAINTIFF
VERSUS
JAMES KANYI……………….……………………………DEFENDANT
J U D G M E N T
INTRODUCTION
The Appellant was sued by the respondent before the small claims court for breach of contract arising out of his failure to complete building a septic tank at the respondent''s residence situated at Karen, despite being paid the full contractual amount. As a result, the respondent had to go an extra mile to hire other contractors and expended an additional sum of KShs.1,000,000/= to complete the civil works, which the Appellant was to undertake, and as a result, sued him seeking a refund of the said amount.
At the trial, the respondent did testify, produced his bundle of supporting documents, and called one witness to support his case, and in response, the appellant also testified and closed his case. The trial magistrate did consider the evidence tendered, submission made by the parties, and did find in favour of the respondent by entering judgment in his favour in the sum claimed; Kshs.1,000,000/= plus cost and interest.
The Appellant, being dissatisfied with the quantum awarded, (with leave of the court) filed their memorandum of Appeal on 2 nd October, 2024, raising five (5) grounds of appeal, namely: -
That the learned trial magistrate erred in law and fact by dismissing the Applicant''s response to the memorandum of claim merely on the grounds of improper representation.
That the learned magistrate erred in law and in fact by failing to address the issues raised in the response to the claim and instead focusing on irrelevant factors that were not at the heart of the dispute. Yet the appellant had done substantial part of the contract using his own money.
That the learned trial Magistrate erred in law and in fact by failing to read and consider the substance of the applicants'' application and submission’s but instead dismissed the applicants'' application on preliminary and flimsy grounds.
That the learned trial Magistrate failed to consider the amount used by the appellant in discharging extra work on the contract, of which the same had to be set off in her judgment.
That the learned trial Magistrate ruling was arrived at in cursory and perfunctory manner without any legal justification and the entire ruling is against the provisions of Article 159(2) of the Constitution of Kenya.
That the learned trial Magistrate erred in law and fact by considering irrelevant factors and leaving out relevant ones in arriving at her judgment.
The Appellant thus prayed that the appeal be allowed and the judgment/ decree of the trial court be set aside.
ANALYSIS AND DETERMINATION
5. I have considered the grounds of appeal, the submissions by both parties, and the cited authorities. This being an appeal from the Small Claims Court, it is important to point out that Section 38 of the Small Claims Court Act provides for the jurisdiction of this court in determining appeals from the Small Claims Court. It provides thus:
A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
An appeal from any decision or order referred to in subsection (1) shall be final.”
6. It is clear from the aforementioned provision that the jurisdiction of this Court from the Small Claims Court will only lie on matters of law and not on factual issues. An appeal limited to matters of law does not permit the appellate court to substitute the tribunal''s decision with its own conclusions based on its own analysis and appreciation of the facts. In John Munuve Mati Vr The returning officer, Mwingi North Constituency & 2 others (2018) eKLR , what amounts to “matters of law” was described as;
(38) The interpretation or construction of the constitution, statute, or regulations made thereunder or their application to the sets of facts established by the trial court. As far as facts are concerned, our engagement with them is limited to background and context, and to satisfy ourselves, when the issue is raised, whether the conclusions of the trial judge are based on the evidence on record or whether they are so perverse that no reasonable tribunal would have arrived at them. We cannot be drawn into consideration of the credibility of witnesses or which witnesses are more believable than others; by law, that is the province of the trial court.
The Appellant alleged the following procedural errors on the part of the trial magistrate: holding that the Appellant was personally responsible for failure to execute this contract, instead of Euna Brothers & Excavators Co Ltd, awarding excessive damages without setting off the works undertaken by the Appellant, and failure to consider the defence offered by the Appellant.
The respondent did prove through documentation filed and admitted into evidence that he had a contract with the Appellant, who offered to construct/install a bio digester tank and fix the septic tank at his residence in Karen. As a result, the respondent directly sent a sum of Kshs.1,250,000/= to the Appellant to execute these works, but he failed to undertake the contractual works agreed upon. The respondent had to incur extra expenses to salvage the situation. The Court notes that all sums were sent directly to the appellant''s personal bank account, and all communication was with him directly. His quest to transfer liability to Euna Brothers & Excavators Limited is a red herring, which has no basis.
Secondly, the evidence presented did prove that the appellant hired incompetent subcontractors who damaged the piping system, hence necessitating the respondent to repair the damage created and incur further costs in completing the civic works initially contracted out to the appellant.
The burden of proof then shifted to the Appellant under Section 109 & 112 of the Evidence Act to rebut the evidence presented. Unfortunately, he never claimed set off in his pleadings, nor did he sufficiently prove to the court''s satisfaction that he discharged his obligation and thus was not liable for the defects that occurred. In light of the overwhelming evidence presented, the trial Magistrate cannot be faulted for finding that it was the Appellant who breached the contract and was liable to refund sums used to make good the same.
Finally, the Appellant also claimed that the trial court did not consider his defence and that the judgment was arrived at in a cursory and perfunctory manner. Having reviewed the said judgment, I do find that this ground of appeal has no merit as the appellant''s pleadings, evidence, and submissions were considered in the impugned judgment, and an appropriate finding was arrived at
C . DISPOSITION
I do therefore find and hold that this Appeal has no merit and dismiss the same with costs to the respondent.
I further exercise my discretion and hereby assess the said costs at Kshs.150,000/= all inclusive.
Stay of execution 45 days.
It is so ordered.
Dated, signed, and delivered in open court at MARSABIT this 21st day of OCTOBER , 2025.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this 21st day of OCTOBER,2025.
In the presence of : -
………………………N/A………………………………..Appellant
………………………N/A………………………………. Respondent
……………………………Mr JARSO………………………….Court Assistant
'
IN THE HIGH COURT OF KENYA AT NAIROBI
APPELLATE DIVISION
CIVIL APPEAL NO. E1156 OF 2024
JAMES KANYI…………………..…….………………………APPELLANT
VERSUS
OMONDI PETER ORONDO……………………………. RESPONDENT
( BEING AN APPEAL FROM THE JUDGMENT AND DECREE DATED 7 th DECEMBER 2023 OF HON NELLIANNE NG’ANG’A (RM) SITTING AT SMALL CLAIMS COURT AT MILLIMANI CLAIM NO E3668 OF 2023 )
BETWEEN
OMONDI PETER ORONDO……………………………..PLAINTIFF
VERSUS
JAMES KANYI……………….……………………………DEFENDANT
J U D G M E N T
INTRODUCTION
The Appellant was sued by the respondent before the small claims court for breach of contract arising out of his failure to complete building a septic tank at the respondent''s residence situated at Karen, despite being paid the full contractual amount. As a result, the respondent had to go an extra mile to hire other contractors and expended an additional sum of KShs.1,000,000/= to complete the civil works, which the Appellant was to undertake, and as a result, sued him seeking a refund of the said amount.
At the trial, the respondent did testify, produced his bundle of supporting documents, and called one witness to support his case, and in response, the appellant also testified and closed his case. The trial magistrate did consider the evidence tendered, submission made by the parties, and did find in favour of the respondent by entering judgment in his favour in the sum claimed; Kshs.1,000,000/= plus cost and interest.
The Appellant, being dissatisfied with the quantum awarded, (with leave of the court) filed their memorandum of Appeal on 2 nd October, 2024, raising five (5) grounds of appeal, namely: -
That the learned trial magistrate erred in law and fact by dismissing the Applicant''s response to the memorandum of claim merely on the grounds of improper representation.
That the learned magistrate erred in law and in fact by failing to address the issues raised in the response to the claim and instead focusing on irrelevant factors that were not at the heart of the dispute. Yet the appellant had done substantial part of the contract using his own money.
That the learned trial Magistrate erred in law and in fact by failing to read and consider the substance of the applicants'' application and submission’s but instead dismissed the applicants'' application on preliminary and flimsy grounds.
That the learned trial Magistrate failed to consider the amount used by the appellant in discharging extra work on the contract, of which the same had to be set off in her judgment.
That the learned trial Magistrate ruling was arrived at in cursory and perfunctory manner without any legal justification and the entire ruling is against the provisions of Article 159(2) of the Constitution of Kenya.
That the learned trial Magistrate erred in law and fact by considering irrelevant factors and leaving out relevant ones in arriving at her judgment.
The Appellant thus prayed that the appeal be allowed and the judgment/ decree of the trial court be set aside.
ANALYSIS AND DETERMINATION
5. I have considered the grounds of appeal, the submissions by both parties, and the cited authorities. This being an appeal from the Small Claims Court, it is important to point out that Section 38 of the Small Claims Court Act provides for the jurisdiction of this court in determining appeals from the Small Claims Court. It provides thus:
A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
An appeal from any decision or order referred to in subsection (1) shall be final.”
6. It is clear from the aforementioned provision that the jurisdiction of this Court from the Small Claims Court will only lie on matters of law and not on factual issues. An appeal limited to matters of law does not permit the appellate court to substitute the tribunal''s decision with its own conclusions based on its own analysis and appreciation of the facts. In John Munuve Mati Vr The returning officer, Mwingi North Constituency & 2 others (2018) eKLR , what amounts to “matters of law” was described as;
(38) The interpretation or construction of the constitution, statute, or regulations made thereunder or their application to the sets of facts established by the trial court. As far as facts are concerned, our engagement with them is limited to background and context, and to satisfy ourselves, when the issue is raised, whether the conclusions of the trial judge are based on the evidence on record or whether they are so perverse that no reasonable tribunal would have arrived at them. We cannot be drawn into consideration of the credibility of witnesses or which witnesses are more believable than others; by law, that is the province of the trial court.
The Appellant alleged the following procedural errors on the part of the trial magistrate: holding that the Appellant was personally responsible for failure to execute this contract, instead of Euna Brothers & Excavators Co Ltd, awarding excessive damages without setting off the works undertaken by the Appellant, and failure to consider the defence offered by the Appellant.
The respondent did prove through documentation filed and admitted into evidence that he had a contract with the Appellant, who offered to construct/install a bio digester tank and fix the septic tank at his residence in Karen. As a result, the respondent directly sent a sum of Kshs.1,250,000/= to the Appellant to execute these works, but he failed to undertake the contractual works agreed upon. The respondent had to incur extra expenses to salvage the situation. The Court notes that all sums were sent directly to the appellant''s personal bank account, and all communication was with him directly. His quest to transfer liability to Euna Brothers & Excavators Limited is a red herring, which has no basis.
Secondly, the evidence presented did prove that the appellant hired incompetent subcontractors who damaged the piping system, hence necessitating the respondent to repair the damage created and incur further costs in completing the civic works initially contracted out to the appellant.
The burden of proof then shifted to the Appellant under Section 109 & 112 of the Evidence Act to rebut the evidence presented. Unfortunately, he never claimed set off in his pleadings, nor did he sufficiently prove to the court''s satisfaction that he discharged his obligation and thus was not liable for the defects that occurred. In light of the overwhelming evidence presented, the trial Magistrate cannot be faulted for finding that it was the Appellant who breached the contract and was liable to refund sums used to make good the same.
Finally, the Appellant also claimed that the trial court did not consider his defence and that the judgment was arrived at in a cursory and perfunctory manner. Having reviewed the said judgment, I do find that this ground of appeal has no merit as the appellant''s pleadings, evidence, and submissions were considered in the impugned judgment, and an appropriate finding was arrived at
C . DISPOSITION
I do therefore find and hold that this Appeal has no merit and dismiss the same with costs to the respondent.
I further exercise my discretion and hereby assess the said costs at Kshs.150,000/= all inclusive.
Stay of execution 45 days.
It is so ordered.
Dated, signed, and delivered in open court at MARSABIT this 21st day of OCTOBER , 2025.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this 21st day of OCTOBER,2025.
In the presence of : -
………………………N/A………………………………..Appellant
………………………N/A………………………………. Respondent
……………………………Mr JARSO………………………….Court Assistant
'