(Being an Appeal against the Ruling and Order of Small Claims Court by Hon. Sylvia Wayodi in Thika SCCC No. E1569/2023 delivered on 4th July, 2024-Alkisa Limited Vs Lee Githinji Warui).
1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together.
2. Hereunder, I submit toward the most eloquent jurisprudential decisions, so often repeated, and yet bear repetition from the same family, on the duties of an appellate Court.
3. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
4. In Rook Vs Rairrie [1941] 1 ALL E.R. 297, the principles which guide an appellate court, were echoed with approval by the Court of Appeal in Butt Vs Khan [1981] KLR 349 when it held as per Law, J.A that an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
5. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the 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.
6. In the primary suit, the Appellant in its Notice of Motion dated 29th January 2024, sought for the application to be certified as urgent and that the firm of E.S. Ochieng’& Co Advocates be granted leave to come on record for the Appellant. Further, the appellant sought stay of execution of Judgement dated 9th October 2023 and decree pending inter-parte hearing of the application, that ex parte judgement entered against the appellant on the 9th October, 2023 together with and all consequential orders arising therefrom be set aside and leave was also sought to appear and file its response to the Respondent’s Claim.
7. Upon the application being heard on merit, the trial magistrate issued the following orders pursuant to a ruling delivered on 4th July 2024; “ t hat the ex-parte judgement entered on 9th October 2023 is hereby set aside on the following conditions; that the applicant shall within 30 days from the date of this ruling, deposit the decretal sum in court until determination of the case, that the Applicant shall serve the Response within 7 days from the date of this ruling, the Claimant/Respondent shave have thrown away costs of Kshs10,000/ to be paid within 14 days from this date, in default of comp0liance with order given(a)(b) and (c) hereinabove, the Order vacating the interlocutory judgement shall automatically lapse without further refernce to the court, in which case, the Respondent herein will be at liberty to proceed with the execution, that the appellant shall pay the auctioneers fees if any the same to be agreed upon failure of which to be taxed in the manner as provided by the law”
8. In the Ruling delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and filed a Notice of Motion dated 16th August 2024 which was abandoned and parties agreed to canvass the appeal by way of written submissions. The grounds of appeal are;
a. That the Learned Adjudicator in law and in failing to adhere to the holding in Kenya Power& Lighting Company Limited Vs Benzene Holdings Limited t/a Wyco Paints (2016) eKLR regarding lack of locus standi of the Respondent to maintain an action in law for being a non-existent legal entity thus leading to the court arriving at unjust ruling.
b. That the Learned Adjudicator in law and in entering default judgement and upholding it vide its ruling despite there being no authority of representation before the honourable court pursuant to section 20 of the small Claims Court Act considering that the respondent is incapable of appearing or giving witness testimony in person.
c. That the Learned Adjudicator in law and in finding that it entered a regular Judgement based on incurably defective certificates of service drawn contrary to Rules 7(1) and 35 of the small Claims Courts Rules and other provisions of law relating to making of affidavits of service.
d. That the Learned Adjudicator in law and in failing to consider all the evidence/annexures tendered in line with sections 30 and 32 of the Small Claims Court Act and submissions filed by the appellant to prove his case against the respondent.
e. That the Learned Adjudicator in law and in failing to exercise her discretion judiciously in terms of salient provisions of Small Claims Court Act under section 3 of the Act thereby imposing harsh terms for setting aside default judgement in favour of a non-existent legal entity (the Respondent).
9. The Respondent and the Appellants filed written submissions and relied on them in the determination of this ruling.
Analysis and Determination:
10. Section 38 of the Small Claims Court Act provides for the jurisdiction of this court in determining appeals from the Small Claims Court. It provides thus; -1. A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. 2.An appeal from any decision or order referred to in subsection (1) shall be final.”
11. In the English case of Martin Versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 it was held inter alia that, “…where a right of appeal is confined to questions of law only, 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 and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.”
12. Consequently, the only issue for determination is whether or not the Respondent had locus standi to sue.
13. In Amlers Precedents of Pleadings LexisNexis LTC Harms et al 2018 on page 248 it is recorded : “The question of locus standi is in a sense procedural, but it is also a matter of substance. It concerns the sufficiency and directness of a person’s interest in the litigation to be accepted as a litigating party. It is also related to the capacity of a person to conclude a jural act. Sufficiency of interest depends on the facts of each case and there are no fixed rules. Equally, the Black’s Law Dictionary, 9th Edition (page 1026) defines locus standi as “the right to bring an action or to be heard in a given forum”
14. In Kihanya & 4 others v Gichuri & another [2024] KECA 852 (KLR), this Court held that: “Locus standi is so cardinal in civil proceedings. This is because without locus standi, a party lacks the right to institute and/or maintain the suit even where a valid cause of action subsists. It can be equated to a court acting without jurisdiction…”
15. Remarkably, superior courts have held and continue to hold, that Courts don’t exist just to go through the motions, instead each case is decided on its own circumstances, context and touch. In addition, courts consider the pith and marrow of a matter as opposed to excusable mistakes and procedural lapses. The solemn duty of court is not to drive away litigants from the seat of mercy and at the same time, the courts are not obligated to retain litigants who indirectly, retreat from the seat of mercy on their own volition. They are left loose. Let them go.
16. Intriguingly, it is submitted by the Appellant, that a search at the Registrar of Companies revealed that Alkisa Limited does not exist and as such, the Respondent in this Appeal lacks locus standi. This was brought to the attention of the trial court vide an application dated 29th January 2024. A replying affidavit was filed by the Respondent in which a copy of the loan agreement was attached at pages 32 to 35 of the Record of Appeal. The exhibit shows a loan agreement between the Claimant and Respondent at the trial court. Upon service of the summons to enter appearance, the Respondent in the trial court did not enter appearance and consequently, judgement was entered in default. An application was proffered date 29th January 2024 to set aside the ex-parte judgement and it was allowed on conditions. However, the Appellant herein did not meet the conditions and instead abandoned the application.
17. The impugned ruling was then delivered reinstating the ex-parte judgement that had earlier on been set aside on conditions. Differently put, the Appellant neither satisfied the conditions set by the trial court nor did he apply to review or set them aside. Instead, thereof, the record show that the application as a whole, was withdrawn thereby reinstating the default judgement. In expansive reading of the ruling of the trial court, the Appellant was accorded a chance to ventilate his issues and especially on locus standi, but instead, he elected to ignore the orders of the court.
18. Therefore, it is clear that parties knew each other well and entered into a mutual agreement and so they are bound by their agreement. The explanation given by the Respondent was that the word Trade was left out in error. The whole name ought to read Alkisa Trade Limited. Why raise the issue of locus standi after you have expended the money? The appellant must be estopped from pleading locus standi in the circumstances. He should have raised it earlier on at the pre-trial stage or in the alternative, he should have complied with the trial court’s order setting aside ex-parte judgement and raise it there. This, he did not do.
19. Putting all these together, I make the following findings;
a. The appeal is dismissed with costs to the Respondent.
Judgement delivered in Court virtually in the absence of the parties and in the presence of the Court Assistant- Mr Sagasi, this 10th September, 2026.
1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together.
2. Hereunder, I submit toward the most eloquent jurisprudential decisions, so often repeated, and yet bear repetition from the same family, on the duties of an appellate Court.
3. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
4. In Rook Vs Rairrie [1941] 1 ALL E.R. 297, the principles which guide an appellate court, were echoed with approval by the Court of Appeal in Butt Vs Khan [1981] KLR 349 when it held as per Law, J.A that an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
5. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the 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.
6. In the primary suit, the Appellant in its Notice of Motion dated 29th January 2024, sought for the application to be certified as urgent and that the firm of E.S. Ochieng’& Co Advocates be granted leave to come on record for the Appellant. Further, the appellant sought stay of execution of Judgement dated 9th October 2023 and decree pending inter-parte hearing of the application, that ex parte judgement entered against the appellant on the 9th October, 2023 together with and all consequential orders arising therefrom be set aside and leave was also sought to appear and file its response to the Respondent’s Claim.
7. Upon the application being heard on merit, the trial magistrate issued the following orders pursuant to a ruling delivered on 4th July 2024; “ t hat the ex-parte judgement entered on 9th October 2023 is hereby set aside on the following conditions; that the applicant shall within 30 days from the date of this ruling, deposit the decretal sum in court until determination of the case, that the Applicant shall serve the Response within 7 days from the date of this ruling, the Claimant/Respondent shave have thrown away costs of Kshs10,000/ to be paid within 14 days from this date, in default of comp0liance with order given(a)(b) and (c) hereinabove, the Order vacating the interlocutory judgement shall automatically lapse without further refernce to the court, in which case, the Respondent herein will be at liberty to proceed with the execution, that the appellant shall pay the auctioneers fees if any the same to be agreed upon failure of which to be taxed in the manner as provided by the law”
8. In the Ruling delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and filed a Notice of Motion dated 16th August 2024 which was abandoned and parties agreed to canvass the appeal by way of written submissions. The grounds of appeal are;
a. That the Learned Adjudicator in law and in failing to adhere to the holding in Kenya Power& Lighting Company Limited Vs Benzene Holdings Limited t/a Wyco Paints (2016) eKLR regarding lack of locus standi of the Respondent to maintain an action in law for being a non-existent legal entity thus leading to the court arriving at unjust ruling.
b. That the Learned Adjudicator in law and in entering default judgement and upholding it vide its ruling despite there being no authority of representation before the honourable court pursuant to section 20 of the small Claims Court Act considering that the respondent is incapable of appearing or giving witness testimony in person.
c. That the Learned Adjudicator in law and in finding that it entered a regular Judgement based on incurably defective certificates of service drawn contrary to Rules 7(1) and 35 of the small Claims Courts Rules and other provisions of law relating to making of affidavits of service.
d. That the Learned Adjudicator in law and in failing to consider all the evidence/annexures tendered in line with sections 30 and 32 of the Small Claims Court Act and submissions filed by the appellant to prove his case against the respondent.
e. That the Learned Adjudicator in law and in failing to exercise her discretion judiciously in terms of salient provisions of Small Claims Court Act under section 3 of the Act thereby imposing harsh terms for setting aside default judgement in favour of a non-existent legal entity (the Respondent).
9. The Respondent and the Appellants filed written submissions and relied on them in the determination of this ruling.
Analysis and Determination:
10. Section 38 of the Small Claims Court Act provides for the jurisdiction of this court in determining appeals from the Small Claims Court. It provides thus; -1. A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. 2.An appeal from any decision or order referred to in subsection (1) shall be final.”
11. In the English case of Martin Versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 it was held inter alia that, “…where a right of appeal is confined to questions of law only, 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 and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.”
12. Consequently, the only issue for determination is whether or not the Respondent had locus standi to sue.
13. In Amlers Precedents of Pleadings LexisNexis LTC Harms et al 2018 on page 248 it is recorded : “The question of locus standi is in a sense procedural, but it is also a matter of substance. It concerns the sufficiency and directness of a person’s interest in the litigation to be accepted as a litigating party. It is also related to the capacity of a person to conclude a jural act. Sufficiency of interest depends on the facts of each case and there are no fixed rules. Equally, the Black’s Law Dictionary, 9th Edition (page 1026) defines locus standi as “the right to bring an action or to be heard in a given forum”
14. In Kihanya & 4 others v Gichuri & another [2024] KECA 852 (KLR), this Court held that: “Locus standi is so cardinal in civil proceedings. This is because without locus standi, a party lacks the right to institute and/or maintain the suit even where a valid cause of action subsists. It can be equated to a court acting without jurisdiction…”
15. Remarkably, superior courts have held and continue to hold, that Courts don’t exist just to go through the motions, instead each case is decided on its own circumstances, context and touch. In addition, courts consider the pith and marrow of a matter as opposed to excusable mistakes and procedural lapses. The solemn duty of court is not to drive away litigants from the seat of mercy and at the same time, the courts are not obligated to retain litigants who indirectly, retreat from the seat of mercy on their own volition. They are left loose. Let them go.
16. Intriguingly, it is submitted by the Appellant, that a search at the Registrar of Companies revealed that Alkisa Limited does not exist and as such, the Respondent in this Appeal lacks locus standi. This was brought to the attention of the trial court vide an application dated 29th January 2024. A replying affidavit was filed by the Respondent in which a copy of the loan agreement was attached at pages 32 to 35 of the Record of Appeal. The exhibit shows a loan agreement between the Claimant and Respondent at the trial court. Upon service of the summons to enter appearance, the Respondent in the trial court did not enter appearance and consequently, judgement was entered in default. An application was proffered date 29th January 2024 to set aside the ex-parte judgement and it was allowed on conditions. However, the Appellant herein did not meet the conditions and instead abandoned the application.
17. The impugned ruling was then delivered reinstating the ex-parte judgement that had earlier on been set aside on conditions. Differently put, the Appellant neither satisfied the conditions set by the trial court nor did he apply to review or set them aside. Instead, thereof, the record show that the application as a whole, was withdrawn thereby reinstating the default judgement. In expansive reading of the ruling of the trial court, the Appellant was accorded a chance to ventilate his issues and especially on locus standi, but instead, he elected to ignore the orders of the court.
18. Therefore, it is clear that parties knew each other well and entered into a mutual agreement and so they are bound by their agreement. The explanation given by the Respondent was that the word Trade was left out in error. The whole name ought to read Alkisa Trade Limited. Why raise the issue of locus standi after you have expended the money? The appellant must be estopped from pleading locus standi in the circumstances. He should have raised it earlier on at the pre-trial stage or in the alternative, he should have complied with the trial court’s order setting aside ex-parte judgement and raise it there. This, he did not do.
19. Putting all these together, I make the following findings;
a. The appeal is dismissed with costs to the Respondent.
Judgement delivered in Court virtually in the absence of the parties and in the presence of the Court Assistant- Mr Sagasi, this 10th September, 2026.