This is an appeal against the judgement and decree issued on the 25th August 2025 by Honorable Thibaru, adjudicator, Small Claims Court case number E055 of 2025 Machakos.
The memorandum of appeal is dated 9th September 2025.
It is indicated that the appellant Jamii Booksellers were aggrieved and dissatisfied by the judgement and decree of the Honorable Court issued on the 25th August 2025 on the following grounds;
1. The learned adjudicator failed in law in finding that none of the delivery notes was signed and or stamped by the respondent despite the fact that almost all the delivery notes were either signed or stamped or both by the respondent.
2. That there was an invoice on top of every delivery note, the invoice or the delivery note or both was signed or stamped by the respondent and no contradictory evidence was led thus the learned adjudicator failed into a non monumental error in arriving at verdict.
3. The learned adjudicator terribly failed in law in disregarding the invoices, inventory and the statements of accounts while concentrating only on the delivery notes.
4. The learned adjudicator misdirected herself in failing to find that all the documents, delivery notes, invoices, inventory and statements of accounts were supporting each other in the fact of supply of goods by the appellant to the respondent school thus the court went astray in finding otherwise.
5. The respondent did not oppose any of the documents indeed they were produced by consent under section 30 of the Small Claims Act and the court was wrong in raising issues of the documents when the respondent had not.
6. The matter was straightforward in that the court failed in introducing issues which the respondent had not raised.
Their prayers were:
1. That the appeal be allowed.
2. The judgement and decree made on the 25th August 2025 be set aside, discharged and substituted with the order allowing the claim as sought in the lower court.
3. That the respondent bears the cost of the appeal and the lower court.
Parties then filed written submissions.
APPELLANT SUBMISSIONS.
They are dated 26th March 2026. They submitted that the background of the matter is that between the years 2021 and 2024 the appellant supplied the stationeries, laboratory equipment, building materials, stop watches, toner kits, executive call bell among others to the respondent. Their records show a balance of Kenya shillings 369,590 as at 2nd October 2024 which remain due and payable for a while despite demand. The matter proceeded under section 30 of the Small Claims Act where all documents were admitted as evidence without calling the makers and parties then filed written submissions. The suit was dismissed by the adjudicator on the ground that there was no sufficient evidence to prove that the goods were delivered to the respondent as the delivery notes were not stamped by the respondent (appellant here).
The appeal here has been brought under section 38 of the Small Claims Court Act and rule 30 of the Small Claims Rules.
They submitted that the lower court failed to consider matters which should have been considered and or looked at and the entire decision is perverse. It further failed to evaluate the evidence tendered before it and as a result reached a wrong conclusion.
They submitted that the appellant produced delivery notes, invoices, ledger and statements of account which were admitted by consent pursuant to section 30 of the Small Claims Act. They relied on the case of Ratanlal & Dhirajlal; the Law of Evidence 26th edition at page 1075 which stated:
“regarding proof of a document the objection has to be raised at the time when the document was tendered in evidence. It cannot be allowed to be raised at any subsequent stage or appellant stage.”
This means that since the documents were produced by consent the learned adjudicator cannot say that the delivery notes were not stamped or signed yet they were produced by consent. The respondent did not object to any of the documents produced by the appellant so the court cannot depart from their contents.
They implored the court to exercise its duty to delve into the factual details and revisit the facts as presented in the trial court, analyze and evaluate them and then find the appellant was entitled to a judgement in its favor. This is because the relationship between the parties was contractual as one party supplied goods in return for the other's payment of consideration. Once goods were delivered and accepted, payment became a legal obligation.
They submitted that the appellant's evidence is coherent, firm and convincing depending on the peculiar circumstances of this matter and judgement ought to have been entered on its strength.
Their prayer was that the judgement rendered should be set aside and replaced with a judgement in favor of the appellant as sought in the lower court.
RESPONDENT'S SUBMISSIONS.
They are dated 7th April 2026.
They stated that since this is a first appeal and the court should reconsider the evidence on record, reevaluate as well as examine afresh the evidence to arrive at its own conclusion. They indicated the issues for determination to be:
1. Whether the said documents were produced by consent and therefore issues of their authentication could not be raised for determination?
2. Whether the issue of a contractual relationship between the parties is a new issue.
On the first issue of documents produced by consent they submitted that the parties agreed to canvas the suit by way of section 30 of the Small Claims Court Act. This section gives powers to the court to dispose matters by way of relying on the documents, statements and written submissions filed on record. It is wrong for a party to infer that the agreement to proceed by section 30 amounted to a consent order that barred parties from challenging the authenticity or veracity of the documents that they relied upon.
The documents here were disputed on the basis that no stamp or signature was present and as such could not be relied upon as proof of delivery.
They relied on the case of Mutwol vs Mutwol & 4 others (2024) KEELC 7352 (KLR) where are the court upheld the role of a court discretion to admit the admissibility or not of documentary evidence only where it has been tested and followed the steps for admission as a document for consideration.
They distinguished the case of Ali Ahmed Naji versus Lutheran World Federation (2010) KECA 40 (KLR) in that the contention that documents produced by consent of the parties cannot be questioned on their authenticity is misinterpretation of the Court of Appeal decision.
They urged the court to find that the trial court had a duty to test the veracity and probative value of the document to ascertain their case and thus find that this head was not proved to the required standard.
On the second issue of whether a contractual relationship between the parties is an issue here it was submitted that this court being a first appeal court is bound to limit itself through the issues that were before the trial court only. The appellant has introduced this issue of a contractual relationship between them which is a totally new issue that was neither raised by the respondent nor the appellant in the lower court. They urged the court to find that the appellant has introduced new issues that were not raised before the record and therefore cannot form a basis of proving merits of the appeal.
I have carefully considered this memorandum of appeal, the record of proceedings before the lower court as well as the detailed submissions filed by both the parties.
This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court on both points of law and fact and come up with its own findings and conclusions. (See Peters versus Sunday Post Limited 1958 EA 424 and Sele and another versus Associated Motor Boat Company Limited and others (1968) 1 EA 123.)
Likewise, in Gitobu Imanyara and two others versus Attorney General (2016) eKLR the Court of Appeal stated this:
“An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
In the lower court this matter proceeded pursuant to section 30 of the Small Claims Court Act which states that:
“Subject to agreement of all the parties to the proceedings, the court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the court.”
To my mind, section 30 only provides the manner in which the proceedings were to be conducted and in such a case, they were to be conducted by the parties relying on their documents without calling any witness. The court would then analyze the documents and determine whether the claim has been proved. There is nothing to suggest that once the documents have been produced under this section they were not to be analyzed for their authenticity and veracity.
I will now analyze the documents that the appellant had relied on in the lower court.
1. Document which has a mark 101 which is an invoice dated 30th November 2021 for Ksh 3,700 being for 1. gross dustless chalk omega. It shows it was received by Kaindi FL. It does not have the school's stamp so it is difficult to connect this invoice with the respondent.
2. Document marked 102 which is a delivery note dated 30th November 2021 for 1 gross dustless chalk omega. There is no signature or stamp on the receiving part. The value of the items said to have been delivered is not indicated. It is therefore difficult to connect this delivery note to the claim by the appellant.
3. Documents marked 103 and 104 which is a delivery note dated 14th March 2022 which shows it was received by Kaindi and has the school's stamp. It is for delivery of an assortment of items whose value is not indicated. Similarly it is difficult to connect this delivery note to the claim here because one cannot rule out a possibility that the value of the items could have been very low. There is no link of this delivery note to the claim here.
4. Document marked 105 which is a Delivery note dated 24th March 2022 for 25 wooden blocks and 25 variable resistors. The same is not signed nor stamped by the school and there is no value of these items. One cannot link it to the claim here.
5. Document marked 106 which is a statement with a stamp dated 27th September 2023 by the appellant. The same was not received nor signed by the respondent.
6. Document marked 107 which is a Statement with a date of 2nd October 2024 on the appellant's stamp and was also not received by the school.
The two statements cannot be linked to the claim by the appellant.
After analyzing the above documents which were relied on by the appellant, I am in full agreement with the finding and conclusion of the trial magistrate. The appellant failed dismally to prove their claim on a balance of probabilities. The suit was rightly dismissed.
In conclusion I find no merit in this appeal. The same is dismissed with costs to the respondents.
READ AND PUBLISHED ON 6TH JULY 2026 IN THE PRESENCE OF:
NO APPEARANCE BY EITHER PARTY BEFORE HON JUSTICE JOYCE GANDANI
The memorandum of appeal is dated 9th September 2025.
It is indicated that the appellant Jamii Booksellers were aggrieved and dissatisfied by the judgement and decree of the Honorable Court issued on the 25th August 2025 on the following grounds;
1. The learned adjudicator failed in law in finding that none of the delivery notes was signed and or stamped by the respondent despite the fact that almost all the delivery notes were either signed or stamped or both by the respondent.
2. That there was an invoice on top of every delivery note, the invoice or the delivery note or both was signed or stamped by the respondent and no contradictory evidence was led thus the learned adjudicator failed into a non monumental error in arriving at verdict.
3. The learned adjudicator terribly failed in law in disregarding the invoices, inventory and the statements of accounts while concentrating only on the delivery notes.
4. The learned adjudicator misdirected herself in failing to find that all the documents, delivery notes, invoices, inventory and statements of accounts were supporting each other in the fact of supply of goods by the appellant to the respondent school thus the court went astray in finding otherwise.
5. The respondent did not oppose any of the documents indeed they were produced by consent under section 30 of the Small Claims Act and the court was wrong in raising issues of the documents when the respondent had not.
6. The matter was straightforward in that the court failed in introducing issues which the respondent had not raised.
Their prayers were:
1. That the appeal be allowed.
2. The judgement and decree made on the 25th August 2025 be set aside, discharged and substituted with the order allowing the claim as sought in the lower court.
3. That the respondent bears the cost of the appeal and the lower court.
Parties then filed written submissions.
APPELLANT SUBMISSIONS.
They are dated 26th March 2026. They submitted that the background of the matter is that between the years 2021 and 2024 the appellant supplied the stationeries, laboratory equipment, building materials, stop watches, toner kits, executive call bell among others to the respondent. Their records show a balance of Kenya shillings 369,590 as at 2nd October 2024 which remain due and payable for a while despite demand. The matter proceeded under section 30 of the Small Claims Act where all documents were admitted as evidence without calling the makers and parties then filed written submissions. The suit was dismissed by the adjudicator on the ground that there was no sufficient evidence to prove that the goods were delivered to the respondent as the delivery notes were not stamped by the respondent (appellant here).
The appeal here has been brought under section 38 of the Small Claims Court Act and rule 30 of the Small Claims Rules.
They submitted that the lower court failed to consider matters which should have been considered and or looked at and the entire decision is perverse. It further failed to evaluate the evidence tendered before it and as a result reached a wrong conclusion.
They submitted that the appellant produced delivery notes, invoices, ledger and statements of account which were admitted by consent pursuant to section 30 of the Small Claims Act. They relied on the case of Ratanlal & Dhirajlal; the Law of Evidence 26th edition at page 1075 which stated:
“regarding proof of a document the objection has to be raised at the time when the document was tendered in evidence. It cannot be allowed to be raised at any subsequent stage or appellant stage.”
This means that since the documents were produced by consent the learned adjudicator cannot say that the delivery notes were not stamped or signed yet they were produced by consent. The respondent did not object to any of the documents produced by the appellant so the court cannot depart from their contents.
They implored the court to exercise its duty to delve into the factual details and revisit the facts as presented in the trial court, analyze and evaluate them and then find the appellant was entitled to a judgement in its favor. This is because the relationship between the parties was contractual as one party supplied goods in return for the other's payment of consideration. Once goods were delivered and accepted, payment became a legal obligation.
They submitted that the appellant's evidence is coherent, firm and convincing depending on the peculiar circumstances of this matter and judgement ought to have been entered on its strength.
Their prayer was that the judgement rendered should be set aside and replaced with a judgement in favor of the appellant as sought in the lower court.
RESPONDENT'S SUBMISSIONS.
They are dated 7th April 2026.
They stated that since this is a first appeal and the court should reconsider the evidence on record, reevaluate as well as examine afresh the evidence to arrive at its own conclusion. They indicated the issues for determination to be:
1. Whether the said documents were produced by consent and therefore issues of their authentication could not be raised for determination?
2. Whether the issue of a contractual relationship between the parties is a new issue.
On the first issue of documents produced by consent they submitted that the parties agreed to canvas the suit by way of section 30 of the Small Claims Court Act. This section gives powers to the court to dispose matters by way of relying on the documents, statements and written submissions filed on record. It is wrong for a party to infer that the agreement to proceed by section 30 amounted to a consent order that barred parties from challenging the authenticity or veracity of the documents that they relied upon.
The documents here were disputed on the basis that no stamp or signature was present and as such could not be relied upon as proof of delivery.
They relied on the case of Mutwol vs Mutwol & 4 others (2024) KEELC 7352 (KLR) where are the court upheld the role of a court discretion to admit the admissibility or not of documentary evidence only where it has been tested and followed the steps for admission as a document for consideration.
They distinguished the case of Ali Ahmed Naji versus Lutheran World Federation (2010) KECA 40 (KLR) in that the contention that documents produced by consent of the parties cannot be questioned on their authenticity is misinterpretation of the Court of Appeal decision.
They urged the court to find that the trial court had a duty to test the veracity and probative value of the document to ascertain their case and thus find that this head was not proved to the required standard.
On the second issue of whether a contractual relationship between the parties is an issue here it was submitted that this court being a first appeal court is bound to limit itself through the issues that were before the trial court only. The appellant has introduced this issue of a contractual relationship between them which is a totally new issue that was neither raised by the respondent nor the appellant in the lower court. They urged the court to find that the appellant has introduced new issues that were not raised before the record and therefore cannot form a basis of proving merits of the appeal.
I have carefully considered this memorandum of appeal, the record of proceedings before the lower court as well as the detailed submissions filed by both the parties.
This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court on both points of law and fact and come up with its own findings and conclusions. (See Peters versus Sunday Post Limited 1958 EA 424 and Sele and another versus Associated Motor Boat Company Limited and others (1968) 1 EA 123.)
Likewise, in Gitobu Imanyara and two others versus Attorney General (2016) eKLR the Court of Appeal stated this:
“An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
In the lower court this matter proceeded pursuant to section 30 of the Small Claims Court Act which states that:
“Subject to agreement of all the parties to the proceedings, the court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the court.”
To my mind, section 30 only provides the manner in which the proceedings were to be conducted and in such a case, they were to be conducted by the parties relying on their documents without calling any witness. The court would then analyze the documents and determine whether the claim has been proved. There is nothing to suggest that once the documents have been produced under this section they were not to be analyzed for their authenticity and veracity.
I will now analyze the documents that the appellant had relied on in the lower court.
1. Document which has a mark 101 which is an invoice dated 30th November 2021 for Ksh 3,700 being for 1. gross dustless chalk omega. It shows it was received by Kaindi FL. It does not have the school's stamp so it is difficult to connect this invoice with the respondent.
2. Document marked 102 which is a delivery note dated 30th November 2021 for 1 gross dustless chalk omega. There is no signature or stamp on the receiving part. The value of the items said to have been delivered is not indicated. It is therefore difficult to connect this delivery note to the claim by the appellant.
3. Documents marked 103 and 104 which is a delivery note dated 14th March 2022 which shows it was received by Kaindi and has the school's stamp. It is for delivery of an assortment of items whose value is not indicated. Similarly it is difficult to connect this delivery note to the claim here because one cannot rule out a possibility that the value of the items could have been very low. There is no link of this delivery note to the claim here.
4. Document marked 105 which is a Delivery note dated 24th March 2022 for 25 wooden blocks and 25 variable resistors. The same is not signed nor stamped by the school and there is no value of these items. One cannot link it to the claim here.
5. Document marked 106 which is a statement with a stamp dated 27th September 2023 by the appellant. The same was not received nor signed by the respondent.
6. Document marked 107 which is a Statement with a date of 2nd October 2024 on the appellant's stamp and was also not received by the school.
The two statements cannot be linked to the claim by the appellant.
After analyzing the above documents which were relied on by the appellant, I am in full agreement with the finding and conclusion of the trial magistrate. The appellant failed dismally to prove their claim on a balance of probabilities. The suit was rightly dismissed.
In conclusion I find no merit in this appeal. The same is dismissed with costs to the respondents.
READ AND PUBLISHED ON 6TH JULY 2026 IN THE PRESENCE OF:
NO APPEARANCE BY EITHER PARTY BEFORE HON JUSTICE JOYCE GANDANI