1. This is an Appeal from the Judgment and Decree of the Honourable B. J Ofisi made on 28/7/2023 in Nairobi SCC COMM No. E 1564 of 2023. The Appellant was the Respondent in the Small Claims Court.
2. In a claim dated 3/3/2023, the Respondent raised a claim against the Respondents who were it customers for supply of hardware material. The Respondent is a manufacturer of PVC pipes and supply pipes. For the unschooled, PVC is a synthetic thermoplastic material made by polymerizing vinyl chloride through plasticizing it. The total amount due was said to be 1,005,550. However, the Respondent had to forego the extra amount for it to fit in the Small Claims Court.
3. The Appellant filed a classic evasive defence. The Appellant stated that he did do not owe any money. They said the claim was filed without company authorization. He said the claim is strange to them. They said they sought delivery notes but were not furnished. I am unable to understand why they were seeking delivery notes for a strange claim.
4. When the matter came up for hearing the Claimant was granted 7 days to file further documents. In the next hearing date the response was amended to state the claim was strange to the Appellant. The witness produced 3 documents and was stood down on application by Mr Gatundu for the Applicant. The parties admitted documents in evidence by consent and proceeded to cross examination.
5. Subsequently the Appellant testified. He said he was not served with invoices. He stated that he was paying by cash or cheque. The Appellant indicated that the last time he bought goods was in June 2022.
6. Upon hearing the parties, the court entered judgment for a sum of Ksh 1,000,000/= and costs.
7. As a result, the Appellant Appealed to this court and set out 7 grounds of Appeal. All the grounds are on evidence. Only two aspects of evidence raise a question of law. That documents relied on did not comply with certain sections of the evidence Act and section 30 of the Small Claims Court Act as read with rule 23(3) (b) of the Small Claims Rules.
8. Parties filed submissions which I have painstakingly considered. They are detailed, albeit both are on questions of fact.
9. The Appellants submitted that the Learned Adjudicator erred in law in failing to reject and disregard evidence by and/or for the Respondent that was at variance with the Respondent’s pleadings It is trite law that parties are bound by their pleadings. They relied on the case of Daniel Otieno Migore Vs South Nyanza Sugar Co. Ltd (2018) eKLR and Raila Amolo Odinga & Another Vs. Iebc & 2 Others (2017) eKLR.
10. They submitted further that the Adjudicator in her Judgment at 158 of the Record of Appeal expressed herself, in regards to Delivery Notes numbered S01661, S01660 and S01680 as follows; -
“The Respondent alleges that he did not execute the said delivery notes yet he failed to avail the document examiner, an expert witness herein to corroborate this position.”,
11. They relied on Rule 23 (3) of the Small Claims Courts Rules stipulates thus: -
“(3) Nothing in this rule prohibits a party from introducing a report containing an expert opinion without calling the maker where —
(a) the party seeking to introduce the report in support of their claim or response has filed and served a copy of the report to the other parties at least fourteen days prior to the date set for hearing;
(b) the parties consent to the introduction of the report; or
(c) on hearing the parties, the Court directs that the report be admitted in evidence at the without calling the maker.”
12. The Respondent submitted that once the document examiner’s report was admitted in evidence the Adjudicator was obligated to consider the same and by failing to consider the same, she abdicated her legal obligation by failing to consider the said report hence fell into legal error.
13. It was their further case that the claim was admitted as paid. They stated that on Re-examination the Respondent conceded to having been paid by the Appellant the Ksh 714,000/= alluded to in the WhatsApp conversation in regards to the delivery of 16.4.2022 at pages 150 and 151 of the Record of Appeal. They posited that the Adjudicator did not consider or say anything about this admission by the Respondent to the effect that he was paid Ksh 714,000/= in respect of the goods purportedly delivered on 16.4.2022 which would in effect leave an outstanding claim of Ksh 286,000/= and not the Ksh 1,000,000/= awarded to the Claimant by the Court.
14. The Respondent submitted, wrongly that the duty of the Court was set out in the case of peters versus Sunday Post (1958 E4) At P 429, E Sir Kenneth O'Connor P opined on the need to exercise caution while reviewing evidence so as to appreciate its weight and reach the right to conclusion;
"“It is a strong thing for an Appellate Court to differ from the findings on a question of fact, of the Judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the Appellate Court might have come to a different conclusion…”
15. They stated that they were relying on a decision by Justice Majanja in West Media Limited Vs Catherine Naliaka T/A Ever Excelling Ventures (Commercial Appeal E037 of 2022) [2023] KEHC 24701(KLR) Commercial and Taxl (31 October 2023) where he posited as doth: -
“7. This court’s jurisdiction on appeals from the Small Claims Court is limited to matters of law as provided for under section 38(1) of the Small Claims Court Act, 2016. A court limited to matters of law is not permitted to substitute the Subordinate Court’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the findings are so perverse that no reasonable tribunal would have arrived at them (John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others [2018] eKLR).”
16. They submitted further that in the case of Stanley Maira Kaguongo versus Isaac Kibiru Kahuthia [20221 eKLR quoted the principle as was well set out by Justice Mativo where he stated that: -
“24. The first issue is on the burden of proof. Justice Mativo in Hellen Wangari Wangechi v Carumera Muthini Gathua 2005] eKLR, which was cited by the learned Counsel for the Respondent quoted with approval Lord Brandon in Rheir Shpping Co. SA. v Edmunds [1955] IWLR 948 at 955 as follows:
“No Judge likes to decide case on the burden of proof if he can legitimately avoid having to do so. There are cases, however in which owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just cause to take.”
25. Justice Mativo, in the above decision, went on to state as follows:
“Whether one likes it or not, the legal burden of proof is consciously, or unconsciously the………..test applied when coming to a decision in any particular case. The fact was succinctly put forth by Rajah JA in Britestone PTE Ltd v Smith & Associates Far East Ltd [2007] 4SLR (R) 855 at 59: ‘The Court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him.”
17. They thus stated that the Appellant's assertion that the Respondent sought to or deviated from its pleading just because the dates of default and non-payment of invoices were on16.4.2022 and 20-4.2022, does not negate the fact that the invoices remained unpaid and unsettled. The variance of dates pleaded needless to say were from when the transaction between the Appellant and the Respondents started transacting and the said transactions involved the dates of the unpaid invoices. They relied on the locus classicus case of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR,.
18. They stated that Appellant's assertion that the Learned Adjudicator erred in law in holding and finding that he failed to avail the document examiner to corroborate the Appellant's position that he did not execute the delivery notes relied upon by the Respondent notwithstanding the introduction in evidence, by consent of the parties of a document examiner's report pursuant to rule 23(3) (b) of the Smal1 Claims Courts Rules, 2419.
19. The Respondent stated that production of documents by their makers was for the invoices and documents that had been taken to the document examiner. The subject of production of documents without calling their makers and especially the delivery notes which were in contention did not form part of the documents at the pre- stage. It was their case that the documents were photocopies and not original copies as the Respondent had availed a copy of the original delivery notes to the Court. They relied on the decision of CA NO. 583 OF 2019 China Road & Bridge Corporation (K)-Versus- Caroline Kavutha Mailu
20. They stated the Appeal lacked merit and should be dismissed.
Analysis
21. This being an Appeal from the Small Claims Court, the duty of the court is circumscribed under 38 of the Small Claims Court Act which provides as doth: -
(1) A person aggrieved by the decision or an order Appeals. of the Court may appeal against that decision or order to the High Court on matters of law.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.
22. The duty of the Court is to defer to the findings of fact of the Adjudicator and analyse the matter for issues of law. The issues of law are either due to the subject matter or the finding of law by the Court. In the case of Mbogo and Another vs. Shah [1968] EA 93, the court of Appeal stated as doth:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior Court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
23. However, an Appeal of this nature should be on points of law. It can be pure points of law or mixed points of law but points of law it is. The court will not deal with points of fact. As a result, the question of breach of evidence Act is moot. Breach of the evidence act for Small Claims Court is a question of fact. It is not a matter for this Court. Compliance with strict rules of evidence is already precluded. Indeed, the Small Claims Court allow admission of otherwise inadmissible evidence.
24. As a corollary it is questionable whether the Evidence Act can be applied to the Small Claims Court. Therefore, breach of those rules is irrelevant. The second aspect is the disregard of the totality of evidence. This is usually a technical point to state that the Court made a decision on no evidence at all.
25. This brings me to the question of what an appeal on points of law entails. It is succinct to state that an appeal on points of law is akin to a second appeal to the court of Appeal. The duty of a second Appeal was set out in the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR: -
“This is a second appeal. I am alive to my duty as a second Appellate Court to determine matters of law only unless it is shown that the courts below-considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. (See: Stanley N. Muriithi & Another versus Bernard Munene Ithiga (2016) eKLR).”
26. The Court of Appeal in an election dispute involving what a point of law had this to say in Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR as doth: -
“4. Although the phrase ‘a matter of law’ has not been defined by the Elections Act, it has been held in Timamy Issa Abdalla Vs Swaleh Salim Swaleh Imu & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, Makhandia & Sichale, JJA) of 13.01.2014 that a decision is erroneous in law if it is one to which no court could reasonably come to, citing Bracegirdle vs Oxney (1947) 1 All ER 126. See also Khatib Abdalla Mwashetani Vs Gedion Mwangangi Wambua & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, M'inoti & Sichale, JJA) of 23.01.2014 following AG vs David Marakaru (1960) EA 484.”
27. In a differently constituted court of Appeal, in the case of Peter Gichuki King'ara Vs Iebc & 2 Others, Nyeri Civil Appeal No. 31 Of 2013 (Court Of Appeal) (Visram, Koome & Odek, JJA) Of 13.02.2014, it was held as follows: -
“.. the exercise of judicial discretion is a point of law.”
28. The main issue for determination in this case is whether the leaned adjudicator allowing the Appellant’s suit. To be able to do this the court must find an error of law in the decision or conduct of the case. A point of law is similar to a preliminary point of law but has a broader meaning. Justice prof J.B. Ojwang J (as he then was) succinctly addressed the issue of preliminary objection in the case of Oraro vs Mbaja [2005] eKLR:
“I think the principle is abundantly clear. A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.
29. To be able to address this aspect it is important to understand the cases laid out by parties. It is only these cases that will determine whether or not the court failed to take into consideration some point of law. The starting point is the pleadings. Pleadings are therefore paramount. They are like palm wines with which cases are digested.
30. The cases set parameters within which the court decides. Any party seeking to prove otherwise, remains non suited. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [supra] Justice A C Mrima stated as follows:-
“ It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -
“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……
…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”
31. The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (Supra) eKLR held as follows in respect to the essence of pleadings in an election petition: -
“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”
32. Before I depart, I need to address one issue that capital was made on. This was in relation to dates and the expert report. The court was not necessarily correct to hold that makers were necessary. However, the report was not proving any point in the claim or response.
33. Document examination is necessary when fraud is alleged. Fraud must be specifically pleaded and proved. Whether the report was admitted it could not change the fact that there were no particulars of fraud or challenge to each of the documents.
34. The burden of proof on the Respondent was the normal civil one. Without fraud being pleaded, the Adjudicator was correct to find that there was credible evidence. Even the witness statement filed by the Appellant did not touch on the discrepancies. Whichever decision the Court made on the report, it was no germane in absence of pleadings to that effect.
35. In the case of Eviline Karigu (Suing as Administratix of Estate of Late Muriungi M’Chuka alias Miriungu M’Gichuga) v M’Chabari Kinoro[2022] eKLR, justice C K Yano stated as doth: -
“To succeed in claiming fraud, the Plaintiff not only need to plead but also particularize it by laying out water tight evidence upon which the court would make such finding. It is therefore trite law that any allegations of fraud must be pleaded and strictly proved. I am guided by the Court of Appeal in case of Kuria Kiarie & 2 Others –vs- Sammy Magera [2018] eKLR where it was held:
“The next and only other issue is fraud. The law is clear and we take it from the case of Vijay Morjaria –vs- Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA (as he then was) states as follows:
“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” [Emphasis added].
The same procedure goes for allegations of misrepresentation and illegality. See Order 2 Rule 4 of the Civil Procedure Rules. As regards the standard of proof, this court in the case of Kinyanjui Kamau –vs George Kamau [2015] eKLR expressed itself as follows;-
“…it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo –vs- Ndolo [2008]1 KLR (G & F) 742 wherein the court stated that: “…we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in Criminal Cases…”
In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.”
36. What was he purpose of the examination of the documents? The court cannot be engaged in fact finding on facts that do not aid in solving a case before court.
37. On discrepancy in dates, the same are no material as they cover indebtedness at a point in time as set out in the claim. It is not one of the issues that was pleaded for determination. The invoices referred as the same ones used in E=evidence.
38. In any case there is no prejudice as at the said date a debt was said to be due. The dates do not make it time barred.
39. On the allegation that the balance was less, I am actually surprised that the Appellants has the audacity to state that the balance should be 286,000/=. A balance from what? They did not prove to be strangers to the Respondent. They had denied the claim and did not plead part payment. They offered no defence to the entire 1,000,000/=. Upon discharging their burden of proof, the Respondents completed their legal and evidentially burden. The Respondent on the other hand sought to proof that the parties are strangers. This was disproved. Their goose was then cooked and eaten.
40. Any other standard could have been beyond the normal standard. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:
“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
41. In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR, the judges of Appeal held that:
“Denning J. in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will loose, because the requisite standard will not have been attained.”
42. The pleadings by the Appellant sought to prove that the they are strangers to the Respondents. However, at the hearing they sought to prove some kind of fraud. They stated that they were paying cash for the supplies. Strangers never pay each other. By stating that they paid cash, they moved out of their pleadings. They then needed to show how these payments were made. They needed to plead that this was a cash transaction. By pleading that they were strangers, they did not help themselves. There were no pleadings related to the signatures, employees and cash payment. They cannot seek to prove unpleaded issues.
43. In the case of Christopher Orina Kenyariri T/A Kenyariri & Associates Advocates vs. Salama Beach Hotel Limited & 3 Others [2017] eKLR the court stated as doth: -
“Those therefore were the crisp and only issues before the learned judge. As has been stated time without number, a court will not determine or base its decision on unpleaded issues. However, if it appears from the cause followed at trial that an unpleaded issue has been left to the court to decide, the trial court may validly determine the unpleaded issue. (See Odd Jobs v. Mubea [1970] 476, and Baber Alibhai Mawji v. Sultan Hashim Lalji & Another, CA No 296 of 2001).”
44. The issue of part payment was not left to the adjudicator. It was neither pleaded nor an issue in dispute. The case involved only 3 invoices and their respective deliveries.
45. The court of Appeal had settled the issue of payment long time ago. It is not enough to say that you do not owe. In the case of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR, where the court of Appeal stated as doth: -
“The main object of this rule and r.14 is to bring the parties by their pleadings to an issue, and indeed to narrow them down to definite issues, and so diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing (per Jessel M. R. in Thorp v Holdworth (1876) 3 Ch. D. 637). This object is secured by requiring that each party in turn should fully admit or clearly deny every material allegation made against him. Thus, in an action for a debt or liquidated demand in money, a mere denial of the debt is wholly inadmissible”, (underling supplied).
I will also add that the crucial deficiency of a general denial which I have already described, also applies to the evasive, inconsistent and contradictory alternative general traverse in the appellant’s defence. This was that if the respondent had extended any overdraft facilities without stating the amount involved, to the appellant which was moreover, denied, then the same and here again, without stating how and when, had been paid. Such a spurious pleading in the alternative cannot give any merit to the defence and so also makes it one which discloses no reasonable defence for all purposes including that of 0 6 r 13(1)(a).”
46. The last aspects are rules of Evidence, the Appellant seems to be under mistaken impression that rules that are applicable in litigation are applicable in adjudication. The Adjudicator is not bound to analyze evidence with a tiny tooth comb. The job of the Adjudicator is to find if the case has been proven though some credible evidence. This is provided under Section 32 of the Small Claims Act as doth: -
“32. Exclusion of strict Rules of evidence
(1) The Court shall not be bound wholly by the Rules of evidence.
(2) Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trust worthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence.
(3) Evidence tendered to the Court by or on behalf of a party to any proceedings may not be given on oath but that Court may, at any stage of the proceedings, require that such evidence or any part thereof be given on oath whether orally or in writing.
(4) The Court may, on its own initiative, seek and receive such other evidence and make such other investigations and inquiries as it may require.
(5) All evidence and information received and ascertained by the Court under subsection (3) shall be disclosed to every party.
(6) For the purposes of subsection (2), an Adjudicator is empowered to administer an oath.
(7) An Adjudicator may require any written evidence given in the proceedings before the Court to be verified by statutory declaration.
47. The law of evidence referred above is the Evidence Act. As such, the court cannot impugn evidence on grounds only that it was inadmissible under certain sections of the Evidence Act. I am unable to find any error of law in the decision by the court.
48. Section 33 provides for costs of proceedings to be awarded to a successful party. The court was correct in awarding costs to the Respondent.
13. What is then the fate of this Appeal. I find no merit in the Appeal. It is consequently dismissed. Costs follow the events. In this case the Appeal was unmeritorious and as such the Respondent is entitled to costs. Award of costs in this court are governed by section 27 of the civil procedure act. They are discretionally. The Supreme Court has set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -
“[18] It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.
49. Since costs follow the event, the Respondents are entitled to costs of the Appeal. A sum of Ksh 85,000/= will be sufficient.
Determination
50. In the upshot, I make the following Orders:
a. The Appeal lacks merit and is accordingly dismissed with costs of Ksh. 85,000/=.
b. 30 days stay of execution.
c. The file is closed.
DELIVERED, DATED and SIGNED at MOMBASA on this 11th day of April, 2024. Judgement delivered through Microsoft Teams Online Platform.
In the presence of:
M/s Joe N Mwathi Company Advocates for the Appellant
M/s Wollace Maina & Company Advocates for the Respondent
Court Assistant – Norah/Michael