Background
1. This appeal arises from the ruling of the Small Claims Court at Kisumu in Civil Suit No. E059 of 2022, delivered on 5th March 2024, in which Hon. G. C. Serem, Adjudicator, dismissed the Appellant’s application dated 20th February 2024 for review of the trial court’s judgment of 30th January 2022.
2. The main ground of the application for review was that there was an error apparent on the face of the record as to the actual date when the Judgment was delivered. According to the Appellant (Applicant), while it is indicated on record that judgment was delivered on 30th January 2022, the Appellant was aware that the date of delivery of the Judgment was actually 1st February 2024.
3. The other ground for the application by the Appellant for review of the trial court’s judgment was that the court, in its judgment, had not factored certain payments which had been made by the Appellant towards the debt.
4. The trial court, in its ruling delivered on 5th March 2024, dismissed the review application on the basis that it was filed more than a year after judgment and thus outside the 30-day statutory period under Section 41 of the Small Claims Court Act. The court further stated that the judgment had been delivered on 30th January 2023, despite there being no record existing of such.
5. Dissatisfied with this ruling, the Appellant filed the present appeal on several grounds, including:
i. That the learned trial Adjudicator erred in Law and fact in failing to find that there are serious errors on the face of the record which warrants a review of the Judgment of the Honourable Court in that the claim was filed on 4/8/2022, proceedings commenced on 18/8/2022 but Judgment Signed and delivered on 30th day of January, 2022 even before the suit was filed.
ii. The learned Adjudicator erred in Law and fact in failing to evaluate and analyze the record the record thus reaching a wrong decision.
iii. That the learned trial Adjudicator erred in Law and fact in finding that the application for review had been filed after one (1) year when in actual sense it was filed within thirty (30) days statutory period, Judgment having been delivered on 1/2/2024 and not 30/1/2022.
iv. That learned trial Adjudicator erred in Law and fact in failing to review the Judgment despite the glaring errors on the face of the record and the testimonies of the claimant.
v. That the learned trial Adjudicator erred in Law and fact in issuing another ruling delivered on 5/3/2024 full of errors despite having been informed of the blatant mistake and errors of the face of the record as to the date of Judgment now changed from 30/1/2022 to 30/1/2023 when no such Judgment dated 30/1/2023 is on record.
vi. That the learned trial Adjudicator erred in Law and fact in misconstruing the import of section 41 of the Small Claims Court Act.
vii. That the learned trial Adjudicator erred in Law and fact in dismissing the appellant's application for review dated 20/2/2024 despite the application being meritorious.
6. The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 30th August 2024, while the Respondent did not file any submissions.
Appellant’s Submission
7. The Appellant submitted that the trial court erred in dismissing the application for review despite the serious errors on the face of the record. The Appellant argued that the discrepancies in the judgment date appearing as 30th January 2022, 30th January 2023, and 1st February 2024 demonstrated a clear mistake apparent on the record, which warranted a review under Section 41 of the Small Claims Court Act. The Appellant contended that ignoring such a glaring anomaly amounted to a miscarriage of justice.
8. The Appellant further argued that the trial court erred in finding that the application for review was time-barred, stating that the judgment was actually delivered on 1st February 2024, not 30th January 2022 or 2023, as erroneously indicated. The Appellant maintained that the review application was filed on 20th February 2024, within the statutory 30-day period under Section 41 of the Small Claims Court Act. The Appellant submitted that the trial court's reasoning was misguided and based on incorrect dates, which prejudiced her right to seek redress.
9. The Appellant also faulted the trial magistrate for failing to consider the payments made towards the decretal sum. The Appellant argued that she had paid Kshs. 34,000/= towards the debt, yet the trial court did not capture or acknowledge these payments in its judgment. The Appellant submitted that this omission materially affected the outcome of the case, as it led to an inflated decretal sum.
10. The Appellant also submitted that the trial magistrate misapplied Section 41 of the Small Claims Court Act, which provides for review based on errors apparent on the face of the record. The Appellant argued that the conflicting judgment dates and failure to account for payments were sufficient grounds for review, and the trial court's failure to correct these mistakes amounted to an error of law.
11. In conclusion, the Appellant prays that the appeal be allowed, the ruling delivered on 5th March 2024 be set aside, and the judgment be reviewed to rectify the errors on record, specifically the conflicting judgment dates and the omission of payments made by the Appellant. The Appellant further seeks an order that the costs of this appeal be borne by the Respondent.
Analysis And Determination
12. This appeal challenges the trial court’s ruling dismissing the Appellant’s application for review on grounds that it was filed out of time and that there were no sufficient grounds to warrant a review.
13. In determining this appeal, this court is guided by the principle that an appellate court must not merely substitute its own decision for that of the trial court but must be satisfied that the trial court either misdirected itself in law or fact or that its decision was plainly wrong. This was emphasized in Mbogo & Another v Shah [1968] EA 93, where the court stated:
“A court of appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”
14. The trial court dismissed the application for review, holding that it was filed beyond the 30-day statutory period provided under Section 41(2) of the Small Claims Court Act. The trial court stated that the judgment was delivered on 30th January 2023, and thus, by the time the Appellant filed the review application on 20th February 2024, over one year had lapsed.
15. The Appellant, on the other hand, argued that the judgment was actually delivered on 1st February 2024 and that the review application was therefore filed within time.
16. The law on review applications is clear. Section 41(2) of the Small Claims Court Act states that a party to proceedings may apply for review of a decision of the Court within thirty days from the date of the decision. It provides that:
‘’ The application referred to under subsection (1) shall be made within thirty days of the order or award sought to be reviewed or such other period as the court may allow.’’
17. The correctness of the trial court’s decision rests entirely on the accuracy of the judgment date by the trial court. In this case, I have carefully perused and considered the proceedings and find the position presented by the Appellant in this appeal to be incorrect.
18. From the record of appeal, it is evident that Judgment in this case was delivered on 30th January 2023, as rightfully pointed out by the trial court.
19. The decision that was delivered on 1st February 2024 by the trial court was not a judgment but a ruling on the Notice to Show Cause (NTSC) why execution could not issue against the Appellant (then a Respondent) after she failed to pay the decretal sum.
20. The Judgment having been delivered on 30th January 2023, then, this Court finds, as the trial Court did, that the application for review was made outside the thirty (30) day period provided under Section 41(2) of the Small Claims Court Act and was therefore incompetent for being time-barred.
21. Accordingly, I find this appeal to be without merit, and the same is hereby dismissed with no orders as to costs, the Respondent having not participated in these proceedings.
22. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 13TH DAY OF MARCH 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
………………for the Appellant
…………………for the Respondent