(Being an appeal from the Ruling and Order of Hon. Dorothy S. Aswani (R.M.) delivered on 22nd December 2023 in Milimani Small Claims Court Claim No. E6199 of 2023)
1. This appeal through the memorandum dated 28th December 2023 seeks to set aside the order arising from a ruling of the trial court dated 22nd December 2023.
2. By way of background, the appellant was a judgment debtor in Milimani Small Claims Court (SCC) Cause No. E1019 of 2023 for a sum of KShs 110,970/= and costs of KShs 40,600/=. The 1st respondent was the decree holder in that case and in execution of the decretal sum it instructed the 2nd respondent to execute against the appellant herein. The 2nd respondent proceeded to execute the instructions and proclaimed and subsequently attached the appellant’s said motor vehicle registration number KAL 506Z Mitsubishi lorry on 23rd November 2023.
3. The appellant paid the decretal sum and the costs as above amounting to KShs 160,363/= on 28th November 2023 through the claimant’s advocates Ngulli & Company. He then went to the 2nd respondent to negotiate for the release of his motor vehicle whereupon the 2nd respondent informed him that he had to settle their costs of KShs 100,000/=. The appellant requested the 2nd respondent to release the vehicle to him upon settlement of the storage charges and have their bill of costs subjected to taxation whereupon he would pay. The 2nd respondent declined the request, insisting that they could only release the vehicle upon instructions from the 1st respondent and upon payment of their costs of KShs 100,000/= in full.
4. The appellant therefore filed a claim dated 30th November 2023 before the Small Claims Court (SCC) seeking a declaration against the respondents to stop holding his motor vehicle registration number KAL 506Z Mitsubishi lorry in execution of the auctioneer’s costs which were yet to be taxed, a declaration that the claimant was only liable to pay storage charges up to the 28th November 2023 when he paid the decretal sum and loss of use at KShs 15,000/= per day from 28th November 2023 until the time of release of the vehicle.
5. Alongside the claim, the appellant also filed a notice of motion dated 30th November 2023 seeking for orders that pending the hearing and determination of the application (there was no prayer for a similar order to issue pending the hearing and determination of the claim) the 2nd respondent be ordered to release his said motor vehicle unconditionally and secondly that the appellant be ordered liable to only pay the storage charges from the date of attachment on 28th November 2023 when the decretal amount was paid.
6. The grounds in support of the application were expounded in the supporting affidavit sworn on 30th November 2023 by Jonah Njoroge Ngonyo, the appellant herein which are a replica of the grounds in support of the claim above.
7. In response, the 2nd respondent filed a replying affidavit sworn on 8th December 2023 in which he has deposed to the history of having received instructions from the 1st respondent then proceeded with obtaing warrants of attachment from the SCC through proclamation, to attachment to eventually advertising for sale the attached lorry in the Standard newspaper on 25th November 2023. He set out in the replying affidavit what is in all respects his Bill of Costs amounting to KShs 152,753.20.
8. The 2nd respondent deposed that the Judgment Debtor (the appellant herein) seemed not to recognize the role of auctioneers in the court process and particularly in the execution process and so should be forced to settle his fees otherwise he stood to lose irreparably.
9. The 2nd respondent filed a notice of preliminary objection dated 7th December 2023 on the ground that the orders sought for in the Claimant's Notice of Motion application dated 30th November 2023 and the orders sought for in the Statement of Claim filed in this suit all flow from the final judgment of the court rendered in Milimani SCCC/E1019/2023: Soi Lions Investment Limited-Vs-Jonah Njoroge Ngonyo by Hon. Judith Omollo on 17th July, 2023. Therefore, the Claimant herein being aggrieved by the execution process in the aforesaid suit ought to have instituted the post judgment proceedings in the said decided suit other than instituting a fresh suit.
10. When the matter came up for directions before the trial court, the parties were directed to proceed for hearing on the application by way of written submissions (emphasis by underlining and bold supplied). Parties filed submissions.
11. In a ruling dated 22nd December 2023, the learned Adjudicator dismissed both the application and the claim with an order that each party to bear its own costs. She dismissed the preliminary objection finding that the claim was properly filed even as the appellant could as well have proceeded in the primary claim.
12. She found that the application and the claim raised the same issue of release of the appellant’s motor vehicle. She also found that the 2nd respondent’s fee was disputed and that the appellant was asking that the same be taxed before settlement but in the meantime, he wanted vehicle to be released.
13. The learned Adjudicator held correctly that auctioneer’s charges should be paid by the debtor. She then went on to consider the itemized schedule of the 2nd respondent/auctioneer’s fees as filed in the replying affidavit and held that the court had the jurisdiction to assess the fees payable based on the provisions of the law.
14. She found that the proclamation and attachment were legally conducted and there was no evidence to the contrary and therefore the appellant’s claim for loss of user could not be granted. She then held that the sum of KShs 152,753.00 was due to the 2nd respondent and the same ought to be paid before release of the vehicle.
15. Arising out of that decision, the appellant filed the present appeal through a memorandum dated 28th December 2023 which contains some ten grounds. All the grounds bear the standard phrase that the trial court “misdirected or erred in law and fact,” and thereby arrived at a wrong decision. The grounds are:
a. The court misdirected itself in law and fact by proceeding to dismiss the appellant’s suit on loss of use of Motor Vehicle Registration Number KAL 506Z Mitsubishi Lorry, when the same was not defended.
b. The court misdirected itself in law and fact by arriving at the conclusion that the 2nd respondent was justified in continuing to hold Motor Vehicle Registration Number KAL 506Z Mitsubishi Lorry, even after the decretal amount had been paid in full;
c. The court misdirected itself in law and fact by arriving at the conclusion that the 2nd respondent was justified in refusing to release Motor Vehicle Registration KAL 506Z Mitsubishi Lorry, even after the decretal amount had been paid in full, pending payment for his cost, which had not been taxed.
d. The court misdirected itself in law and fact by conferring Jurisdiction upon itself to assess the fees payable to the 2nd respondent in the absence of any bill of costs having been filed and served upon the appellant for it to be disputed fast, before the jurisdiction of the court could be invoked pursuant to the provisions of Rule 55 (3) of the Auctioneers Rules.
e. The court misdirected itself in law and fact by disregarding the provisions of part 2 of the Fourth schedule of the Auctioneers Act, which deals with Auctioneers charges and proceeded to award the 2nd respondent KShs. 31,843.20 as service and labour of proclamation which is not provided for under the schedule.
f. The court misdirected itself in law and fact by proceeding to award the 2nd respondent Kshs 5,000/- as disbursements in the absence of any evidence which ought to have been confined to what was actually spent or expenses incurred, which was not the case.
g. The court misdirected itself in law and fact by proceeding to award the 2nd respondent Kshs 15,000/- as breakdown charges, yet the inventory indicated the vehicle was driven to the yard.
h. The court misdirected itself in law and fact by proceeding to award the 2nd respondent, even on the items allowable in the schedule, amounts claimed but are not pegged on any known law, solely based on petty cash vouchers, prepared by the 2nd respondent.
i. The court erred in law and fact by failing to consider the appellant’s submissions and authorities on rulings made in similar cases.
j. The court misdirected itself in law and in fact by delivering a Ruling without addressing the facts and the issues and also failing to give the ratio decidendi.
16. The appeal was disposed of by way of written submissions filed by counsels for the appellant and the 2nd respondent. The 1st respondent did not participate in the proceedings in the lower court and in this appeal.
17. In the submissions, the grounds of appeal were condensed into three being;
a. Whether the trial court misdirected itself in law and fact by dismissing an undefended suit on the loss of use of vehicle
b. Whether the trial court misdirected itself in law and fact by ruling that the 2nd respondent was justified in continuing to hold motor vehicle registration number KAL 506Z Mitsubishi lorry, even after the decretal amount had been paid in full.
c. Whether the trial court misdirected itself in law and fact by conferring jurisdiction upon itself in assessing fees payable to the 2nd respondent in the absence of any bill of cost.
18. The respondent adopted the issues set out by the appellant and submitted on them. The submissions are considered in the analysis that follows.
19. I have considered the grounds of appeal and the submissions by learned counsels for the parties. The court adopts the three issues set out by the appellant for determination herein.
20. Under section 38 of the SCC Act appeals from the SCC to this court are only on points of law and not on issues of fact. Therefore, use of the standard byline of “… erred on matters of law and fact…” can only mean that either the learned counsel for the appellant has not fully acquainted himself with the provisions of the SCCA or did not take time to go through the memorandum of appeal if it was prepared for him by an assistant.
21. Learned counsel would do well to refer and be guided by the Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR that:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
22. Looking at the grounds of appeal as set out above, the proceedings before the trial court and the ruling of the learned trial Adjudicator, I find that the fundamental issue of law that arises for determination is whether or not in arriving at her ruling the learned Adjudicator was guided by the rules of natural justice.
23. On an appeal based on points of law only, the Court of Appeal in M’Riungu v. Republic [1983] KLR 455, stated thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
24. The appellate court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR.
25. Another important feature to bear in mind while considering the appeal is that the SCC Act exempts court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. It is upon the Adjudicator to determine the material to rely upon. Section 32 of the Act provides that the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It further, provides that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence. This means the Adjudicator has the discretion to admit all evidence which may be helpful in establishing whether or not the claim is proved. This provision further limits the province of the appellate court to issues of law only as the appellate court would have no means to overturn the findings of fact by the trial court and substitute them with its own findings.
26. The issue of considering the facts before the trial court is further limited by the procedure before the court which is unlike the procedure before the magistrates’ courts. Section 3 of the SCC Act on the guding principles of the court provides inter alia that the Court shall be guided by the principles of judicial authority prescribed under Article 159(2) of the Constitution and without prejudice to the same, the Court shall adopt such procedures as the Court deems appropriate to ensure fairness of process and simplicity of procedure. The fairness of process is further reinforced under Part IV which is the substantive part that deals with procedure. Section 17 of the Act which falls under Part IV, it provides that:
S. 17. Subject to this Act and Rules, the Court shall have control of its own procedure in the determination of claims before it and, in the exercise of that control, the Court shall have regard to the principles of natural justice.
27. Therefore, the principles of natural justice rather than the technical procedural rules under the CPR take centre stage in a SCC hearing.
28. These principles are as enunciated in the case of Justice Amraphael Mbogholi Msagha v. Chief Justice of the Republic of Kenya & 7 Others Nairobi HCMCA No. 1062 of 2004; [2006] 2 KLR 553; [2006] eKLR, where the Court, in discussing the rules of natural justice, cited De Smith and Brazier, Constitutional and Administrative Law 6th Edition (Penguin United Kingdom: 1989) (pages 557-558) which states:
“The content of natural justice is therefore flexible and variable. All that is fundamentally demanded of the decision maker is that his decision in its own context be made with due regard for the affected parties’ interests and accordingly be reached without bias and after giving the party or parties a chance to put his or their case....”
29. The court went on to hold that:
“The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material.”
30. Indeed, technicality of procedure and evidence as apply in the magistrates’ court are excluded in proceedings under the SCC so that the Adjudicator can achieve one of the main objectives of the court which is provided under section 34 of the Act on expeditious disposal of cases with quite onerous provisions that:
S. 34 (1) All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day to day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.
(2) Judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing.
(3) The Court may only adjourn the hearing of any matter under exceptional and unforeseen circumstances which shall be recorded and be limited to a maximum of three adjournments.
31. I have set out at length some of the provisions of the SCC Act in order to address the submissions by learned counsel for the appellant this court has to a duty to reanalyze and reassess afresh the evidence on record and reach its own findings as held in the case of Selle and another v Associated Motor Boat Company Ltd & others (1968) EA, 123. From the provisions of the SCC Act, it follows that this court cannot proceed with an appeal by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters emanating from the magistrates’ courts as required under provisions of the CPA.
32. My thinking therefore is that the responsibility of this court when considering an appeal from the SCC is to consider the legality and reasonableness of the decision of the learned Adjudicator. If this court is satisfied that the law was properly considered and applied and a reasonable evaluation of the facts had, then it will not interfere with the findings and determination of the trial court. The converse is true. That where the law was not properly considered and/or applied or where the decision does not seem reasonable from the facts before the court, then this court will interfere.
33. It is the appellant’s contention that the trial court went beyond what it was required to do to confine itself to the application at hand but extended its decision to the claim when in fact no response had yet been filed to the claim. I find that charge to be correct because not the main but the application was before the learned trial Adjudicator for determination. When the court dismissed the preliminary objection, which if successful would have brought the claim and consequently the application to an end, it meant that the application and main claim had to go on. The next step was to consider the claim alone and consider the main claim afterwards. She had given express directions to the parties during pre-trial to file submissions for hearing of the application and not the main claim.
34. However, as indicated above, the application suffered from one major deficiency, that is, failure to pray for an order for the release of the vehicle pending the hearing and determination of the claim. The only prayer was for release of the vehicle pending hearing and determination of the application. When the court failed to issue the order prayed for at the certificate of urgency stage, the same became spent. The second order prayed for was the same one in prayer No. 2 of the reliefs in the main claim. Perhaps the learned trial Adjudicator found herself at a crossroads on what to do with such an application at that point. It became difficult for her because determining the issue in the application would inevitably also determine the same issue in the main claim.
35. However, in doing so, the learned trial Adjudicator denied both parties an opportunity to present their cases on the claim and therefore acted in breach of the principle of natural justice that requires that no party should be condemned unheard. The violation cannot be justified on the basis of expedition of proceedings as submitted by learned counsel for the respondent. The proper way should have been for the trial court not to determine the issue at that stage but move it to the hearing of the main claim. The trial court did not base its decision on Rule 5(2)(c) of the SCCA as submitted by learned counsel for the respondent.
36. The other error was the assessment of the fees payable to the auctioneer without either of the parties making an application for the same contrary to Rule 55(3) of the Auctioneer’s Rules. Learned counsel for the respondent submits that the 2nd Respondent rightfully invoked the jurisdiction of the trial Court to assess the disputed Auctioneer’s fees in his Replying Affidavit of 8th December, 2023. Surely, that submission cannot be serious. A replying affidavit is not an application and in any case the applicant was not afforded an opportunity to respond to the same and therefore was condemned unheard.
37. In the circumstances, I am satisfied and find that on a point of law, that, the order of the trial court dismissing the main claim was made without hearing the parties and therefore in breach of the rules of natural justice which are a central feature of making a decision before the SCC as provided for under section 17 of the SCCA, the ruling of the learned Adjudicator has to be and is hereby set aside in part, and substituted with the following orders.
a. The order of the trial court dismissing the preliminary objection is upheld.
b. The prayer in the application for release of the lorry pending hearing and determination of the application having been spent, the same was not available to the trial court to consider.
c. The other order on how the appellant was to pay storage charges being the same order sought in the main claim was not to be granted on the application.
d. The order dismissing the main claim is hereby set aside and the matter is hereby remitted to the trial court for hearing of the main claim only before a different Adjudicator from the one who handled it previously.
e. The appellant shall deposit into the SCC at Milimani the sum of KShs 150,000/= as security for the auctioneer’s/2nd respondent’s fees within 30 days from today’s date in the event that the vehicle is still being held by the auctioneer. Immediately upon the deposit being made the 2nd respondent shall forthwith release the subject lorry to the appellant and at the same time the statutory period for hearing and determination of a small claim before the SCC shall start running and to proceed as per the Act.
f. Mention before the head of the Small Claims Court or in her absence the duty court on 18th February 2026 for directions on the hearing.
38. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 26th day of January 2026 in the presence of:
Buluma for the Appellant.
Grace for the 2nd Respondent.
N/A for 1st Respondent
Ummu h/b for Amina: Court assistant.
ANDAYI W. FRANCIS
JUDGE
Note: Order (e) above has was deleted by this court upon learned counsels for the parties informing the court that the lorry had since been released upon settlement of the auctioneer’s fees by the appellant. However, learned counsels were not agreed on whether the fees so paid was correct or not. That issue will be determined by the trial court.
The timelines for hearing and determination of a claim under the SCCA shall start running from 18th February 2026 when the matter is mentioned for directions before the SCC.
1. This appeal through the memorandum dated 28th December 2023 seeks to set aside the order arising from a ruling of the trial court dated 22nd December 2023.
2. By way of background, the appellant was a judgment debtor in Milimani Small Claims Court (SCC) Cause No. E1019 of 2023 for a sum of KShs 110,970/= and costs of KShs 40,600/=. The 1st respondent was the decree holder in that case and in execution of the decretal sum it instructed the 2nd respondent to execute against the appellant herein. The 2nd respondent proceeded to execute the instructions and proclaimed and subsequently attached the appellant’s said motor vehicle registration number KAL 506Z Mitsubishi lorry on 23rd November 2023.
3. The appellant paid the decretal sum and the costs as above amounting to KShs 160,363/= on 28th November 2023 through the claimant’s advocates Ngulli & Company. He then went to the 2nd respondent to negotiate for the release of his motor vehicle whereupon the 2nd respondent informed him that he had to settle their costs of KShs 100,000/=. The appellant requested the 2nd respondent to release the vehicle to him upon settlement of the storage charges and have their bill of costs subjected to taxation whereupon he would pay. The 2nd respondent declined the request, insisting that they could only release the vehicle upon instructions from the 1st respondent and upon payment of their costs of KShs 100,000/= in full.
4. The appellant therefore filed a claim dated 30th November 2023 before the Small Claims Court (SCC) seeking a declaration against the respondents to stop holding his motor vehicle registration number KAL 506Z Mitsubishi lorry in execution of the auctioneer’s costs which were yet to be taxed, a declaration that the claimant was only liable to pay storage charges up to the 28th November 2023 when he paid the decretal sum and loss of use at KShs 15,000/= per day from 28th November 2023 until the time of release of the vehicle.
5. Alongside the claim, the appellant also filed a notice of motion dated 30th November 2023 seeking for orders that pending the hearing and determination of the application (there was no prayer for a similar order to issue pending the hearing and determination of the claim) the 2nd respondent be ordered to release his said motor vehicle unconditionally and secondly that the appellant be ordered liable to only pay the storage charges from the date of attachment on 28th November 2023 when the decretal amount was paid.
6. The grounds in support of the application were expounded in the supporting affidavit sworn on 30th November 2023 by Jonah Njoroge Ngonyo, the appellant herein which are a replica of the grounds in support of the claim above.
7. In response, the 2nd respondent filed a replying affidavit sworn on 8th December 2023 in which he has deposed to the history of having received instructions from the 1st respondent then proceeded with obtaing warrants of attachment from the SCC through proclamation, to attachment to eventually advertising for sale the attached lorry in the Standard newspaper on 25th November 2023. He set out in the replying affidavit what is in all respects his Bill of Costs amounting to KShs 152,753.20.
8. The 2nd respondent deposed that the Judgment Debtor (the appellant herein) seemed not to recognize the role of auctioneers in the court process and particularly in the execution process and so should be forced to settle his fees otherwise he stood to lose irreparably.
9. The 2nd respondent filed a notice of preliminary objection dated 7th December 2023 on the ground that the orders sought for in the Claimant's Notice of Motion application dated 30th November 2023 and the orders sought for in the Statement of Claim filed in this suit all flow from the final judgment of the court rendered in Milimani SCCC/E1019/2023: Soi Lions Investment Limited-Vs-Jonah Njoroge Ngonyo by Hon. Judith Omollo on 17th July, 2023. Therefore, the Claimant herein being aggrieved by the execution process in the aforesaid suit ought to have instituted the post judgment proceedings in the said decided suit other than instituting a fresh suit.
10. When the matter came up for directions before the trial court, the parties were directed to proceed for hearing on the application by way of written submissions (emphasis by underlining and bold supplied). Parties filed submissions.
11. In a ruling dated 22nd December 2023, the learned Adjudicator dismissed both the application and the claim with an order that each party to bear its own costs. She dismissed the preliminary objection finding that the claim was properly filed even as the appellant could as well have proceeded in the primary claim.
12. She found that the application and the claim raised the same issue of release of the appellant’s motor vehicle. She also found that the 2nd respondent’s fee was disputed and that the appellant was asking that the same be taxed before settlement but in the meantime, he wanted vehicle to be released.
13. The learned Adjudicator held correctly that auctioneer’s charges should be paid by the debtor. She then went on to consider the itemized schedule of the 2nd respondent/auctioneer’s fees as filed in the replying affidavit and held that the court had the jurisdiction to assess the fees payable based on the provisions of the law.
14. She found that the proclamation and attachment were legally conducted and there was no evidence to the contrary and therefore the appellant’s claim for loss of user could not be granted. She then held that the sum of KShs 152,753.00 was due to the 2nd respondent and the same ought to be paid before release of the vehicle.
15. Arising out of that decision, the appellant filed the present appeal through a memorandum dated 28th December 2023 which contains some ten grounds. All the grounds bear the standard phrase that the trial court “misdirected or erred in law and fact,” and thereby arrived at a wrong decision. The grounds are:
a. The court misdirected itself in law and fact by proceeding to dismiss the appellant’s suit on loss of use of Motor Vehicle Registration Number KAL 506Z Mitsubishi Lorry, when the same was not defended.
b. The court misdirected itself in law and fact by arriving at the conclusion that the 2nd respondent was justified in continuing to hold Motor Vehicle Registration Number KAL 506Z Mitsubishi Lorry, even after the decretal amount had been paid in full;
c. The court misdirected itself in law and fact by arriving at the conclusion that the 2nd respondent was justified in refusing to release Motor Vehicle Registration KAL 506Z Mitsubishi Lorry, even after the decretal amount had been paid in full, pending payment for his cost, which had not been taxed.
d. The court misdirected itself in law and fact by conferring Jurisdiction upon itself to assess the fees payable to the 2nd respondent in the absence of any bill of costs having been filed and served upon the appellant for it to be disputed fast, before the jurisdiction of the court could be invoked pursuant to the provisions of Rule 55 (3) of the Auctioneers Rules.
e. The court misdirected itself in law and fact by disregarding the provisions of part 2 of the Fourth schedule of the Auctioneers Act, which deals with Auctioneers charges and proceeded to award the 2nd respondent KShs. 31,843.20 as service and labour of proclamation which is not provided for under the schedule.
f. The court misdirected itself in law and fact by proceeding to award the 2nd respondent Kshs 5,000/- as disbursements in the absence of any evidence which ought to have been confined to what was actually spent or expenses incurred, which was not the case.
g. The court misdirected itself in law and fact by proceeding to award the 2nd respondent Kshs 15,000/- as breakdown charges, yet the inventory indicated the vehicle was driven to the yard.
h. The court misdirected itself in law and fact by proceeding to award the 2nd respondent, even on the items allowable in the schedule, amounts claimed but are not pegged on any known law, solely based on petty cash vouchers, prepared by the 2nd respondent.
i. The court erred in law and fact by failing to consider the appellant’s submissions and authorities on rulings made in similar cases.
j. The court misdirected itself in law and in fact by delivering a Ruling without addressing the facts and the issues and also failing to give the ratio decidendi.
16. The appeal was disposed of by way of written submissions filed by counsels for the appellant and the 2nd respondent. The 1st respondent did not participate in the proceedings in the lower court and in this appeal.
17. In the submissions, the grounds of appeal were condensed into three being;
a. Whether the trial court misdirected itself in law and fact by dismissing an undefended suit on the loss of use of vehicle
b. Whether the trial court misdirected itself in law and fact by ruling that the 2nd respondent was justified in continuing to hold motor vehicle registration number KAL 506Z Mitsubishi lorry, even after the decretal amount had been paid in full.
c. Whether the trial court misdirected itself in law and fact by conferring jurisdiction upon itself in assessing fees payable to the 2nd respondent in the absence of any bill of cost.
18. The respondent adopted the issues set out by the appellant and submitted on them. The submissions are considered in the analysis that follows.
19. I have considered the grounds of appeal and the submissions by learned counsels for the parties. The court adopts the three issues set out by the appellant for determination herein.
20. Under section 38 of the SCC Act appeals from the SCC to this court are only on points of law and not on issues of fact. Therefore, use of the standard byline of “… erred on matters of law and fact…” can only mean that either the learned counsel for the appellant has not fully acquainted himself with the provisions of the SCCA or did not take time to go through the memorandum of appeal if it was prepared for him by an assistant.
21. Learned counsel would do well to refer and be guided by the Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR that:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
22. Looking at the grounds of appeal as set out above, the proceedings before the trial court and the ruling of the learned trial Adjudicator, I find that the fundamental issue of law that arises for determination is whether or not in arriving at her ruling the learned Adjudicator was guided by the rules of natural justice.
23. On an appeal based on points of law only, the Court of Appeal in M’Riungu v. Republic [1983] KLR 455, stated thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
24. The appellate court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR.
25. Another important feature to bear in mind while considering the appeal is that the SCC Act exempts court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. It is upon the Adjudicator to determine the material to rely upon. Section 32 of the Act provides that the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It further, provides that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence. This means the Adjudicator has the discretion to admit all evidence which may be helpful in establishing whether or not the claim is proved. This provision further limits the province of the appellate court to issues of law only as the appellate court would have no means to overturn the findings of fact by the trial court and substitute them with its own findings.
26. The issue of considering the facts before the trial court is further limited by the procedure before the court which is unlike the procedure before the magistrates’ courts. Section 3 of the SCC Act on the guding principles of the court provides inter alia that the Court shall be guided by the principles of judicial authority prescribed under Article 159(2) of the Constitution and without prejudice to the same, the Court shall adopt such procedures as the Court deems appropriate to ensure fairness of process and simplicity of procedure. The fairness of process is further reinforced under Part IV which is the substantive part that deals with procedure. Section 17 of the Act which falls under Part IV, it provides that:
S. 17. Subject to this Act and Rules, the Court shall have control of its own procedure in the determination of claims before it and, in the exercise of that control, the Court shall have regard to the principles of natural justice.
27. Therefore, the principles of natural justice rather than the technical procedural rules under the CPR take centre stage in a SCC hearing.
28. These principles are as enunciated in the case of Justice Amraphael Mbogholi Msagha v. Chief Justice of the Republic of Kenya & 7 Others Nairobi HCMCA No. 1062 of 2004; [2006] 2 KLR 553; [2006] eKLR, where the Court, in discussing the rules of natural justice, cited De Smith and Brazier, Constitutional and Administrative Law 6th Edition (Penguin United Kingdom: 1989) (pages 557-558) which states:
“The content of natural justice is therefore flexible and variable. All that is fundamentally demanded of the decision maker is that his decision in its own context be made with due regard for the affected parties’ interests and accordingly be reached without bias and after giving the party or parties a chance to put his or their case....”
29. The court went on to hold that:
“The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material.”
30. Indeed, technicality of procedure and evidence as apply in the magistrates’ court are excluded in proceedings under the SCC so that the Adjudicator can achieve one of the main objectives of the court which is provided under section 34 of the Act on expeditious disposal of cases with quite onerous provisions that:
S. 34 (1) All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day to day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.
(2) Judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing.
(3) The Court may only adjourn the hearing of any matter under exceptional and unforeseen circumstances which shall be recorded and be limited to a maximum of three adjournments.
31. I have set out at length some of the provisions of the SCC Act in order to address the submissions by learned counsel for the appellant this court has to a duty to reanalyze and reassess afresh the evidence on record and reach its own findings as held in the case of Selle and another v Associated Motor Boat Company Ltd & others (1968) EA, 123. From the provisions of the SCC Act, it follows that this court cannot proceed with an appeal by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters emanating from the magistrates’ courts as required under provisions of the CPA.
32. My thinking therefore is that the responsibility of this court when considering an appeal from the SCC is to consider the legality and reasonableness of the decision of the learned Adjudicator. If this court is satisfied that the law was properly considered and applied and a reasonable evaluation of the facts had, then it will not interfere with the findings and determination of the trial court. The converse is true. That where the law was not properly considered and/or applied or where the decision does not seem reasonable from the facts before the court, then this court will interfere.
33. It is the appellant’s contention that the trial court went beyond what it was required to do to confine itself to the application at hand but extended its decision to the claim when in fact no response had yet been filed to the claim. I find that charge to be correct because not the main but the application was before the learned trial Adjudicator for determination. When the court dismissed the preliminary objection, which if successful would have brought the claim and consequently the application to an end, it meant that the application and main claim had to go on. The next step was to consider the claim alone and consider the main claim afterwards. She had given express directions to the parties during pre-trial to file submissions for hearing of the application and not the main claim.
34. However, as indicated above, the application suffered from one major deficiency, that is, failure to pray for an order for the release of the vehicle pending the hearing and determination of the claim. The only prayer was for release of the vehicle pending hearing and determination of the application. When the court failed to issue the order prayed for at the certificate of urgency stage, the same became spent. The second order prayed for was the same one in prayer No. 2 of the reliefs in the main claim. Perhaps the learned trial Adjudicator found herself at a crossroads on what to do with such an application at that point. It became difficult for her because determining the issue in the application would inevitably also determine the same issue in the main claim.
35. However, in doing so, the learned trial Adjudicator denied both parties an opportunity to present their cases on the claim and therefore acted in breach of the principle of natural justice that requires that no party should be condemned unheard. The violation cannot be justified on the basis of expedition of proceedings as submitted by learned counsel for the respondent. The proper way should have been for the trial court not to determine the issue at that stage but move it to the hearing of the main claim. The trial court did not base its decision on Rule 5(2)(c) of the SCCA as submitted by learned counsel for the respondent.
36. The other error was the assessment of the fees payable to the auctioneer without either of the parties making an application for the same contrary to Rule 55(3) of the Auctioneer’s Rules. Learned counsel for the respondent submits that the 2nd Respondent rightfully invoked the jurisdiction of the trial Court to assess the disputed Auctioneer’s fees in his Replying Affidavit of 8th December, 2023. Surely, that submission cannot be serious. A replying affidavit is not an application and in any case the applicant was not afforded an opportunity to respond to the same and therefore was condemned unheard.
37. In the circumstances, I am satisfied and find that on a point of law, that, the order of the trial court dismissing the main claim was made without hearing the parties and therefore in breach of the rules of natural justice which are a central feature of making a decision before the SCC as provided for under section 17 of the SCCA, the ruling of the learned Adjudicator has to be and is hereby set aside in part, and substituted with the following orders.
a. The order of the trial court dismissing the preliminary objection is upheld.
b. The prayer in the application for release of the lorry pending hearing and determination of the application having been spent, the same was not available to the trial court to consider.
c. The other order on how the appellant was to pay storage charges being the same order sought in the main claim was not to be granted on the application.
d. The order dismissing the main claim is hereby set aside and the matter is hereby remitted to the trial court for hearing of the main claim only before a different Adjudicator from the one who handled it previously.
e. The appellant shall deposit into the SCC at Milimani the sum of KShs 150,000/= as security for the auctioneer’s/2nd respondent’s fees within 30 days from today’s date in the event that the vehicle is still being held by the auctioneer. Immediately upon the deposit being made the 2nd respondent shall forthwith release the subject lorry to the appellant and at the same time the statutory period for hearing and determination of a small claim before the SCC shall start running and to proceed as per the Act.
f. Mention before the head of the Small Claims Court or in her absence the duty court on 18th February 2026 for directions on the hearing.
38. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 26th day of January 2026 in the presence of:
Buluma for the Appellant.
Grace for the 2nd Respondent.
N/A for 1st Respondent
Ummu h/b for Amina: Court assistant.
ANDAYI W. FRANCIS
JUDGE
Note: Order (e) above has was deleted by this court upon learned counsels for the parties informing the court that the lorry had since been released upon settlement of the auctioneer’s fees by the appellant. However, learned counsels were not agreed on whether the fees so paid was correct or not. That issue will be determined by the trial court.
The timelines for hearing and determination of a claim under the SCCA shall start running from 18th February 2026 when the matter is mentioned for directions before the SCC.