(Being an appeal against the judgment and decree of Hon. J. W. Munene, Adjudicator delivered on 21st December 2023 in Milimani Small Claims Court SCCCOMM. CLAIM NO. E4812 of 2023)
1. This appeal arises from a judgment of the Small Claims Court (SCC) dated 21st December 2023 in which the court dismissed the appellant’s claim for recovery of KShs 577,000/= as the outstanding purchase price for goods, namely motor vehicle spare parts sold and delivered by the appellant to the respondent between the period 31st December 2019 to 3rd February 2020.
2. The case proceeded by way of the pleadings and witness statements filed by the parties under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya. Section 30 of the SCCA provides that:
S. 30. Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.
3. Upon analyzing the evidence and considering the law and an authority, the learned Adjudicator concluded that the claim had not been proved and she dismissed the same with costs to the respondent for reasons that the respondent had adduced satisfactory evidence to disclaim the claim by the appellant.
4. The appellant was dissatisfied with the judgment and in the memorandum of appeal dated 10th January 2024 he raised the following grounds that:
a) the trial court erred in law and fact in failing to find and hold that the appellant proved his case against the respondent to the required standards.
b) the learned magistrate erred in fact and in law by failing to find and to hold that the respondent had an accrued debt of KShs. 577,000/= for goods sold and delivered by the appellant despite the appellant having tabled incontrovertible evidence to prove so.
c) the learned magistrate erred in law and fact in failing to consider the appellant's evidence on record and the submissions and it is only right, proper, just and fair that the appellant is given an opportunity to be heard on merit.
d) the learned magistrate erred in law and fact by misdirecting herself on the wrong principles of law applicable in all the circumstances of the case and thereby failed to exercise her discretion judiciously.
e) the trial magistrate totally misconstrued the law and misdirected herself by dismissing the appellant's claim by stating that the appellant had failed to produce evidence to support his case despite having produced several delivery notes and WhatsApp screenshots of the respondent acknowledging the debt.
f) the learned magistrate erred in law and in fact by delivering a Judgment in favour of the appellant on the 8th December 2024 (should be 2023) and recalling the same via e-mail six days later on the 14th December 2023 only to alter the same and deliver it again on 21st December 2023 thus proving the dubious nature of the judgement.
g) the learned magistrate erred in law and fact by totally disregarding and/or evaluating the evidence before her and she undoubtedly exhibited actual bias as against the appellant and against the rules of natural justice, and indeed she was financially compromised as was evident when she altered the judgement without any application for review.
5. The appellant therefore prays that the appeal be allowed and the the second judgment and/or decree of the trial court delivered on 6th December 2023 be set aside and substituted with the earlier judgment in favour of the appellant and costs of this appeal and those of the lower court be borne by the respondent.
6. The appeal was disposed of by way of written submissions filed by learned counsels for the parties. The same are considered in the analysis that follows.
7. The first issue to dispose of is an averment in the grounds of appeal and expounded in submissions by learned counsel for the appellant that there were two judgments delivered in this case. By the trial court. I have seen in the proceedings that indeed the trial court delivered a judgment on 8th December 2023 and then another one on 21st December 2023. However, learned counsel only provided one judgment in the record of appeal, the one dated 21st December 2023. The trial court file provided to this court also has only one judgment the same one delivered on 21st December 2023. Learned counsel has not even provided a print-out of the e-mail message that allegedly recalled the earlier judgment. I am therefore unable to determine the allegation that there were two different judgments in the case. I proceed on the position of the one judgment this court was able to see, the one dated 21st December 2023.
8. I have considered the grounds set out in the Memorandum of Appeal and the submissions by learned counsels for the parties. The appellant reduced the three grounds above into three issues for determination: The respondent on its part raised two issues for determination, that is, Whether the learned trial magistrate (sic) erred in law and in fact in failing to consider the appellant’s evidence on record and the submissions and whether the learned trial magistrate (sic) erred in law and in fact and undoubtedly exhibited actual bias against the appellant thereby going against the rules of natural justice when she delivered a judgment in favour of the appellant on 8th December 2024 and recalling the same via e-mail six days later only to alter the same. The respondent on his part raised three issues for determination: Whether the respondent owes the appellant KShs 577,000/=; whether the appellant proved its case on a balance of probabilities and whether the appellant is entitled to the reliefs sought.
9. As a preliminary issue for guidance to learned counsel for the appellant that the SCC is presided over by an Adjudicator and not a magistrate. It is important to bear in mind the vital provisions of the SCCA in order to appreciate and always have at the back of the mind the spirit behind the creation of this very distinguished court because, otherwise it gets meshed up with the operations of the magistrate’s court and there it loses meaning as a different court from the magistrates’ court. In the Kenyan context, an Adjudicator is indeed a magistrate, with full legal training and an admitted advocate of the High Court of Kenya. However, while presiding over the SCC she removes the robes of a magistrate and wears the ordinary garment of an Adjudicator who in the spirit of the SCCA should come down to the level of the ordinary man on the streets. The reasons are that the SCC is designed to be simple that is, without the strictures of formal procedure and strict evidentiary rules, fast and accessible. These reasons will come out clearer in the analysis and evaluation of the evidence that follows because the operations of the SCC must be distinguished from those of the magistrate’s court.
10. First, an appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. Therefore, the submission by learned counsel for the appellant that this court has to analyze and reassess the evidence on record and reach its own findings is misplaced. From the provisions of the Act, it follows that this court cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters as required under the Civil Procedure Act and Rules.
11. Learned counsel for the appellant 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 Mule & 3 others [2014] KECA 890 (KLR) 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.”
12. Further exposition on this issue of an appeal based on points of law only is found in the case of M’Riungu v. Republic [1983] KLR 455, where the Court of Appeal 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”.
13. Another important feature to bear in mind while considering the appeal is that the SCC Act exempts the court’s 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 (emphasis by underlining supplied). It follows from this provision that it is largely 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 (emphasis by underlining supplied). This means the Adjudicator has the discretion to admit any 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.
14. Therefore, the respondent’s submission that the appellant ought to have provided a certificate of electronic evidence under section 106B of the Evidence Act in order to have the WhatsApp screenshot messages admitted as evidence and also that the documents presented in the application for setting aside the default judgment could not be considered as evidence is mistaken. In that regard, I am satisfied that the trial court properly admitted and considered them as evidence in the claim.
15. Therefore, the submissions by learned counsels based on non-adherence by the trial court of the strict rules of evidence are also found to be misplaced.
16. The issue of considering the facts before the trial court is further limited by the procedure applicable before the SCC which is unlike the procedure before the magistrates’ courts. Section 3 of the SCC Act on the guiding 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 (emphasis in bold supplied). The fairness of process is however 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.
17. Therefore, the principles of natural justice rather than the technical procedural rules under the CPR take centre stage in a SCC hearing. In 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, 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....”
18. Indeed, technicality of procedure and strict rules of evidence as apply in the magistrates’ court were excluded so that the Adjudicator could be able to 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.
19. While proceeding under the CPR and applying the strict rules of evidence, before the magistrate’s court, it is practically impossible to hear and determine every case that comes before it in a day’s sitting. It is only through strict compliance with the provisions of the SCCA with the exclusion of the strict evidentiary rules and technicalities of procedure under the CPR through adoption of a flexible procedure by the learned Adjudicator that this can be achieved. For me, the provisions of the SCCA would best be applied with the court proceeding more through the alternative means of dispute resolution such as negotiation, and conciliation between parties with the court’s guidance as well as summary determinations rather than laborious taking of notes from witnesses, analyzing evidence, sifting through pages of lengthy submissions by learned counsels and rendering lengthy judgments. Provided that the rules of natural justice are adhered to in considering a claim, I do not think a judgment of the SCC should be more than two pages long.
20. Therefore the complaint by the appellant that the learned trialAdjudicator failed to evaluate the evidence in probably a lengthy judgment as the appellant would have wished has no basis. The learned Adjudicator stated that she had considered the pleadings, documents, witness statements and submissions by the parties.
21. 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 would also be 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. Given the provisions of the SCC Act excluding to a large extent the strict provisions of the law of evidence and the technicalities of procedure under the CPR, I would find that the standard of reasonableness would be that of ordinary man on the street.
22. The case before the SCC was that the claimant through a Statement of Claim dated 14th June 2023 sought for judgment against the respondent for KShs. 577,000/= plus interest and costs of the claim. It was the appellant’s case through its witness Michael Minai Njoroge’s statement dated 14th June 2023 that the appellant sold and delivered to the respondent assorted spare parts for sale for a total sum of KShs 867,500/= leaving a balance of KShs. 577,000/= the subject of the claim.
23. In support of the claim the appellant filed various delivery notes and a demand letter. The demand letter dated 26th November 2021 from Maina Gachihi & Partners Advocates indicated that the it was for goods supplied for the period 31st December 2019 to 3rd February 2020 all amounting to KShs 867,500/= and that the respondent had failed to pay for them.
24. In his witness statement, the appellant further stated that out of the KShs 867,000/= demanded in the letter, the respondent had paid some of it and left a balance of KShs 577,000/= outstanding. He was thus calaiming the same with interest.
25. The delivery notes were in the name of Mimky Auto Spares and addressed to the respondent simply as Deem. The delivery notes were as reduced into the table below:
Date Delivery Note No. Total amount (KShs)
08/01/2020 375 25,000
11/01/2020 380 81,000
15/01/2020 379 185,000
17/01/2020 374 101,000
23/01/2020 382 115,500
Total 507,500
26. In his response dated 24th August 2023 and witness statement of the same date, the respondent acknowledged having been supplied with goods by the appellant as claimed but averred that the total amount for the goods supplied was KShs 508,500/= yet he had paid KShs 748,000/= and therefore the goods supplied were fully paid for and he was in no way indebted to the appellant. In his contention that the goods supplied were worth only KShs 508,500/= he relied on the appellant’s delivery notes above which he erroneously referred to as invoices.
27. Initially, the respondent had failed to file a response to the claim and judgment was entered against him in default. He filed an application dated 24th August 2023 to set aside the default judgment. The appellant filed a replying affidavit sworn on 9th October 2023 opposing the application to set aside. The application was disposed of by compromise on 11th October 2023 by way of the respondent being required to pay throw awat costs of KShs 10,000/= and his response was allowed.
28. The application is relevant to the case because, it there were documents annexed to the parties’ respective affidavits that had not been filed alongside the pleadings which it appears were then relied upon by the trial court in its judgment.
29. In his supporting affidavit sworn on 24th August 2023, the respondent annexed various documents. Those relevant to the claim were:
a) a copy of a cheque dated 21st October 2022 Dee Em Auto Garage Limited to Michael Minai Njoroge in the sum of KShs 100,000/=.
b) Filtered M-pesa Statements for Daniel Maithima Rukunga dated 23rd August 2023 for the periods 1st January 2019 to 31st December 2019; 1st January 2020 to 31st December 2020; and 1st January 2021 to 31st December 2021.
30. The filtered M-Pesa statements bear the following payments from Daniel Maithima Rukunga, the respondent herin to Michael Njoroge, the appellant:
Date Amount
09/01/2019 40,000
21/06/2019 12,500
03/07/2019 29,000
08/08/2019 7,000
14/08/2019 40,000
04/09/2019 5,000
06/12/2019 28,000
11/12/2019 12,000
08/01/2020 29,000
04/05/2020 9,000
05/02/2021 13,000
Total 224,500
31. There is no M-Pesa statement for the year 2022. However, there is evidence of payment by cheque of KShs 100,000/=.
32. The appellant in his replying affidavit annexed the following documents:
a) Printed copies of screenshots of images from Whatsapp communications between himself and Daniel Maithima. Most of them are for parts of vehicles that were supposedly required by the respondent in some instances with quotations of the prices by the appellant. The earliest date of the images provided is 9th January 2019 and the latest is 1st December 2022. There are a few images for the year 2020, none for 2021 and the bulk are for the year 2022. The relevant images are:
a) 13 April 2022 at 13:12 showing the following message: 867500 – 50000 = 817500
b) 13 June 2022 at 10:27 showing the following message: “817500 – 100,000 = 717500 balance.”
c) 25 October 2022 at 10:59 showing the following message: 817500 – 100000 = 7175000 balance.
Cheque 100,000
Headlight premio 40000
Balance 577,500.
33. The respondent did not dispute any of these messages and the court must take them to be correct.
34. However, I note from the current submissions by learned counsel for the appellant in paragraph 4 he alleges that the appellant attached M-Pesa statements proving when the goods supplied to the respondent were paid for. That submission cannot be correct. Learned counsel did not submit as such before the SCC. The fact is that there is no M-Pesa statement filed by the appellant in the lower court. The M-Pesa statements filed were by the respondent and as pointed out above, they were not filed as documents in support of the claim but annexures to a supporting affidavit in an application to set aside the default judgment. All the same, given the flexible nature of the conduct of proceedings before the SCC where the strict rules of evidence are not to be followed, the same as the several other documents which would not be admissible in the magistrates’ courts were allowed.
35. So the only documents evidencing payment in this case are the filtered M-Pesa statements made available by the respondent and one copy of the cheque for KShs 100,000/=. Although filtered, the appellant did not raise any objection to their being relied upon and so again, in view of the flexible nature of proceedings before the SCC the same are admissible and can be relied upon.
36. When considered these documents, these are, the delivery notes, the screenshots, the M-Pesa statement and copy of cheque show and there is no dispute that the parties were in business as early as 9th January 2019 and as late as 1st December 2022. The business transaction was that the appellant was supplying the respondent with motor vehicle spare parts.
37. I find that the learned trial Adjudicator made an error of law to find that there were no signed delivery notes that had been produced to support the claim of KShs 577,000/=. The appellant indeed provided some delivery notes that were not signed. But as stated above, the same need not have been signed because strict rules of evidence are not to be applied in a SCC case. In any case, the respondent never objected to their being relied upon as evidence to prove that the good were supplied to him. He even relied upon them to assert that they were proof that he had paid more than the amount contained therein.
38. What the learned trial Adjudicator needed only to determine was whether in her estimation the delivery notes produced supported the claim or not. A reasonable person looking at the facts as presented herein should find that the delivery notes were good evidence to support the claim to a certain extent, even if not the whole of it.
39. The other error of law committed by the learned trial Adjudicator was to fail to take into account the WhatsApp screenshot messages produced by the appellant, after stating without exception that she had considered the documents made available by the parties to support their respective claims. She thus left out material evidence tendered by the appellant to support his claim and went ahead to find that the appellant had not adduced sufficient evidence to prove his claim. Yet the learned Adjudicator took into account the M-Pesa statements presented by the respondent. In doing so, she was open to the charge that she was selective in her consideration of the evidence tendered and the charge that she could have been biased cannot be easily shaken off.
40. As at 5th February 2021, the last date when payment was made by M-pesa as per the M-Pesa statements, my calculation shows that a sum of KShs 224,500/= had been paid by the respondent to the appellant. It is not KShs 748,000/= as alleged by the respondent. The parties continued carrying on business. This is evident from their further communication on WhatsApp through the year 2022.
41. On 13th April 2022 the message of “867500 – 50000 = 817500” in the WhatsApp messages is an indication that out of the balance of KShs 867,500/= an amount of KShs 50,000/= was paid leaving a balance of KShs 817,500/=.
42. On 13th June 2022, the message of “817,500 – 100,000 = 717,500 balance” can only be read to mean that out of KShs 817,500/= a sum of KShs 100,000/= was paid leaving a balance of KShs 717,000/=.
43. In the same breadth on 25th October 2022, KShs 100,000 + KShs 40,000/= on account of a Premio headlight was credited to the respondent’s account and the balance became KShs 577,500/=. This is the amount being claimed by the appellant. To that extent, there is evidence supporting it.
44. Juxtaposed against the respondent’s M-Pesa statements which are also not disputed, they show that the last payment was made on 5th February 2021 at 17:42:56. The other proof of payment after that is the cheque for KShs 100,000/= dated 21st October 2022. Yet the Whatsapp screenshots show that the transactions were going on until 1st December 2022.
45. There is the evidence of the delivery notes issued in January 2020 which go to support the fact that the parties were transacting. However, they are not for the entire period for which the parties were transacting and therefore cannot be relied upon to determine full the amount owed to the appellant by the respondent.
46. There is no further evidence of payment after 25th October 2022. It is therefore reasonable to conclude that the sum of KShs 577,500/= claimed by the appellant as owing from the respondent was never settled and so it was due as pleaded and shown in the evidence by the appellant.
47. From the foregoing analysis, I find that the appellant’s claim through his written statement was supported by the documents produced by both the appellant and the respondent. The appellant’s evidence was therefore consistent with the documentary evidence relied upon by both parties and I find that the evidence was reliable.
48. To the contrary, the respondent’s case through his pleadings and evidence that he had paid in excess of the amount owed is not supported by any evidence. Evidence of the payments he made through M-Pesa, the two cheques and the credit for the Premio headlights shows that it was KShs 224,500 + 100,000, + 100,000/= + 40,000 and the KShs 50,000/= acknowledged on 13th April 2022 as per the WhatsApp message makes a total of KShs = 514,500.
49. The first message of indebtedness is dated 13th April 2022 and is for KShs 867,500/=. The appellant’s claim runs all the way from January 2019 to December 2022. Therefore, all the above payments made by the respondent must be put to his credit so that KShs 867,500 - KShs 514,500 = KShs 353,000/=.
50. I am satisfied and I find that this is the amount proved by the appellant as due to him from the respondent.
51. Consequently, I find that the appeal has merit and the same is allowed to the extent explained above. The judgment of the trial court was erroneous on points of law and must be and is hereby set aside and substituted with a judgment allowing the appellant’s claim against the respondent in the sum of KShs 353,000/= with interest from the date of filing the suit before the SCC.
52. Costs for both this appeal and before the SCC are awarded to the appellant.
53. Orders accordingly.
54. Delivered, dated and signed on the Virtual Platform, Teams this 5th day of February 2026 and uploaded on the CTS for access by parties.
ANDAYI W. F.
JUDGE
In the presence of:
Mburu h/b for Gachie for the Appellant.
N/A for the Respondent.
Ummu: Court Assistant.
1. This appeal arises from a judgment of the Small Claims Court (SCC) dated 21st December 2023 in which the court dismissed the appellant’s claim for recovery of KShs 577,000/= as the outstanding purchase price for goods, namely motor vehicle spare parts sold and delivered by the appellant to the respondent between the period 31st December 2019 to 3rd February 2020.
2. The case proceeded by way of the pleadings and witness statements filed by the parties under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya. Section 30 of the SCCA provides that:
S. 30. Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.
3. Upon analyzing the evidence and considering the law and an authority, the learned Adjudicator concluded that the claim had not been proved and she dismissed the same with costs to the respondent for reasons that the respondent had adduced satisfactory evidence to disclaim the claim by the appellant.
4. The appellant was dissatisfied with the judgment and in the memorandum of appeal dated 10th January 2024 he raised the following grounds that:
a) the trial court erred in law and fact in failing to find and hold that the appellant proved his case against the respondent to the required standards.
b) the learned magistrate erred in fact and in law by failing to find and to hold that the respondent had an accrued debt of KShs. 577,000/= for goods sold and delivered by the appellant despite the appellant having tabled incontrovertible evidence to prove so.
c) the learned magistrate erred in law and fact in failing to consider the appellant's evidence on record and the submissions and it is only right, proper, just and fair that the appellant is given an opportunity to be heard on merit.
d) the learned magistrate erred in law and fact by misdirecting herself on the wrong principles of law applicable in all the circumstances of the case and thereby failed to exercise her discretion judiciously.
e) the trial magistrate totally misconstrued the law and misdirected herself by dismissing the appellant's claim by stating that the appellant had failed to produce evidence to support his case despite having produced several delivery notes and WhatsApp screenshots of the respondent acknowledging the debt.
f) the learned magistrate erred in law and in fact by delivering a Judgment in favour of the appellant on the 8th December 2024 (should be 2023) and recalling the same via e-mail six days later on the 14th December 2023 only to alter the same and deliver it again on 21st December 2023 thus proving the dubious nature of the judgement.
g) the learned magistrate erred in law and fact by totally disregarding and/or evaluating the evidence before her and she undoubtedly exhibited actual bias as against the appellant and against the rules of natural justice, and indeed she was financially compromised as was evident when she altered the judgement without any application for review.
5. The appellant therefore prays that the appeal be allowed and the the second judgment and/or decree of the trial court delivered on 6th December 2023 be set aside and substituted with the earlier judgment in favour of the appellant and costs of this appeal and those of the lower court be borne by the respondent.
6. The appeal was disposed of by way of written submissions filed by learned counsels for the parties. The same are considered in the analysis that follows.
7. The first issue to dispose of is an averment in the grounds of appeal and expounded in submissions by learned counsel for the appellant that there were two judgments delivered in this case. By the trial court. I have seen in the proceedings that indeed the trial court delivered a judgment on 8th December 2023 and then another one on 21st December 2023. However, learned counsel only provided one judgment in the record of appeal, the one dated 21st December 2023. The trial court file provided to this court also has only one judgment the same one delivered on 21st December 2023. Learned counsel has not even provided a print-out of the e-mail message that allegedly recalled the earlier judgment. I am therefore unable to determine the allegation that there were two different judgments in the case. I proceed on the position of the one judgment this court was able to see, the one dated 21st December 2023.
8. I have considered the grounds set out in the Memorandum of Appeal and the submissions by learned counsels for the parties. The appellant reduced the three grounds above into three issues for determination: The respondent on its part raised two issues for determination, that is, Whether the learned trial magistrate (sic) erred in law and in fact in failing to consider the appellant’s evidence on record and the submissions and whether the learned trial magistrate (sic) erred in law and in fact and undoubtedly exhibited actual bias against the appellant thereby going against the rules of natural justice when she delivered a judgment in favour of the appellant on 8th December 2024 and recalling the same via e-mail six days later only to alter the same. The respondent on his part raised three issues for determination: Whether the respondent owes the appellant KShs 577,000/=; whether the appellant proved its case on a balance of probabilities and whether the appellant is entitled to the reliefs sought.
9. As a preliminary issue for guidance to learned counsel for the appellant that the SCC is presided over by an Adjudicator and not a magistrate. It is important to bear in mind the vital provisions of the SCCA in order to appreciate and always have at the back of the mind the spirit behind the creation of this very distinguished court because, otherwise it gets meshed up with the operations of the magistrate’s court and there it loses meaning as a different court from the magistrates’ court. In the Kenyan context, an Adjudicator is indeed a magistrate, with full legal training and an admitted advocate of the High Court of Kenya. However, while presiding over the SCC she removes the robes of a magistrate and wears the ordinary garment of an Adjudicator who in the spirit of the SCCA should come down to the level of the ordinary man on the streets. The reasons are that the SCC is designed to be simple that is, without the strictures of formal procedure and strict evidentiary rules, fast and accessible. These reasons will come out clearer in the analysis and evaluation of the evidence that follows because the operations of the SCC must be distinguished from those of the magistrate’s court.
10. First, an appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. Therefore, the submission by learned counsel for the appellant that this court has to analyze and reassess the evidence on record and reach its own findings is misplaced. From the provisions of the Act, it follows that this court cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters as required under the Civil Procedure Act and Rules.
11. Learned counsel for the appellant 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 Mule & 3 others [2014] KECA 890 (KLR) 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.”
12. Further exposition on this issue of an appeal based on points of law only is found in the case of M’Riungu v. Republic [1983] KLR 455, where the Court of Appeal 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”.
13. Another important feature to bear in mind while considering the appeal is that the SCC Act exempts the court’s 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 (emphasis by underlining supplied). It follows from this provision that it is largely 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 (emphasis by underlining supplied). This means the Adjudicator has the discretion to admit any 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.
14. Therefore, the respondent’s submission that the appellant ought to have provided a certificate of electronic evidence under section 106B of the Evidence Act in order to have the WhatsApp screenshot messages admitted as evidence and also that the documents presented in the application for setting aside the default judgment could not be considered as evidence is mistaken. In that regard, I am satisfied that the trial court properly admitted and considered them as evidence in the claim.
15. Therefore, the submissions by learned counsels based on non-adherence by the trial court of the strict rules of evidence are also found to be misplaced.
16. The issue of considering the facts before the trial court is further limited by the procedure applicable before the SCC which is unlike the procedure before the magistrates’ courts. Section 3 of the SCC Act on the guiding 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 (emphasis in bold supplied). The fairness of process is however 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.
17. Therefore, the principles of natural justice rather than the technical procedural rules under the CPR take centre stage in a SCC hearing. In 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, 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....”
18. Indeed, technicality of procedure and strict rules of evidence as apply in the magistrates’ court were excluded so that the Adjudicator could be able to 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.
19. While proceeding under the CPR and applying the strict rules of evidence, before the magistrate’s court, it is practically impossible to hear and determine every case that comes before it in a day’s sitting. It is only through strict compliance with the provisions of the SCCA with the exclusion of the strict evidentiary rules and technicalities of procedure under the CPR through adoption of a flexible procedure by the learned Adjudicator that this can be achieved. For me, the provisions of the SCCA would best be applied with the court proceeding more through the alternative means of dispute resolution such as negotiation, and conciliation between parties with the court’s guidance as well as summary determinations rather than laborious taking of notes from witnesses, analyzing evidence, sifting through pages of lengthy submissions by learned counsels and rendering lengthy judgments. Provided that the rules of natural justice are adhered to in considering a claim, I do not think a judgment of the SCC should be more than two pages long.
20. Therefore the complaint by the appellant that the learned trialAdjudicator failed to evaluate the evidence in probably a lengthy judgment as the appellant would have wished has no basis. The learned Adjudicator stated that she had considered the pleadings, documents, witness statements and submissions by the parties.
21. 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 would also be 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. Given the provisions of the SCC Act excluding to a large extent the strict provisions of the law of evidence and the technicalities of procedure under the CPR, I would find that the standard of reasonableness would be that of ordinary man on the street.
22. The case before the SCC was that the claimant through a Statement of Claim dated 14th June 2023 sought for judgment against the respondent for KShs. 577,000/= plus interest and costs of the claim. It was the appellant’s case through its witness Michael Minai Njoroge’s statement dated 14th June 2023 that the appellant sold and delivered to the respondent assorted spare parts for sale for a total sum of KShs 867,500/= leaving a balance of KShs. 577,000/= the subject of the claim.
23. In support of the claim the appellant filed various delivery notes and a demand letter. The demand letter dated 26th November 2021 from Maina Gachihi & Partners Advocates indicated that the it was for goods supplied for the period 31st December 2019 to 3rd February 2020 all amounting to KShs 867,500/= and that the respondent had failed to pay for them.
24. In his witness statement, the appellant further stated that out of the KShs 867,000/= demanded in the letter, the respondent had paid some of it and left a balance of KShs 577,000/= outstanding. He was thus calaiming the same with interest.
25. The delivery notes were in the name of Mimky Auto Spares and addressed to the respondent simply as Deem. The delivery notes were as reduced into the table below:
Date Delivery Note No. Total amount (KShs)
08/01/2020 375 25,000
11/01/2020 380 81,000
15/01/2020 379 185,000
17/01/2020 374 101,000
23/01/2020 382 115,500
Total 507,500
26. In his response dated 24th August 2023 and witness statement of the same date, the respondent acknowledged having been supplied with goods by the appellant as claimed but averred that the total amount for the goods supplied was KShs 508,500/= yet he had paid KShs 748,000/= and therefore the goods supplied were fully paid for and he was in no way indebted to the appellant. In his contention that the goods supplied were worth only KShs 508,500/= he relied on the appellant’s delivery notes above which he erroneously referred to as invoices.
27. Initially, the respondent had failed to file a response to the claim and judgment was entered against him in default. He filed an application dated 24th August 2023 to set aside the default judgment. The appellant filed a replying affidavit sworn on 9th October 2023 opposing the application to set aside. The application was disposed of by compromise on 11th October 2023 by way of the respondent being required to pay throw awat costs of KShs 10,000/= and his response was allowed.
28. The application is relevant to the case because, it there were documents annexed to the parties’ respective affidavits that had not been filed alongside the pleadings which it appears were then relied upon by the trial court in its judgment.
29. In his supporting affidavit sworn on 24th August 2023, the respondent annexed various documents. Those relevant to the claim were:
a) a copy of a cheque dated 21st October 2022 Dee Em Auto Garage Limited to Michael Minai Njoroge in the sum of KShs 100,000/=.
b) Filtered M-pesa Statements for Daniel Maithima Rukunga dated 23rd August 2023 for the periods 1st January 2019 to 31st December 2019; 1st January 2020 to 31st December 2020; and 1st January 2021 to 31st December 2021.
30. The filtered M-Pesa statements bear the following payments from Daniel Maithima Rukunga, the respondent herin to Michael Njoroge, the appellant:
Date Amount
09/01/2019 40,000
21/06/2019 12,500
03/07/2019 29,000
08/08/2019 7,000
14/08/2019 40,000
04/09/2019 5,000
06/12/2019 28,000
11/12/2019 12,000
08/01/2020 29,000
04/05/2020 9,000
05/02/2021 13,000
Total 224,500
31. There is no M-Pesa statement for the year 2022. However, there is evidence of payment by cheque of KShs 100,000/=.
32. The appellant in his replying affidavit annexed the following documents:
a) Printed copies of screenshots of images from Whatsapp communications between himself and Daniel Maithima. Most of them are for parts of vehicles that were supposedly required by the respondent in some instances with quotations of the prices by the appellant. The earliest date of the images provided is 9th January 2019 and the latest is 1st December 2022. There are a few images for the year 2020, none for 2021 and the bulk are for the year 2022. The relevant images are:
a) 13 April 2022 at 13:12 showing the following message: 867500 – 50000 = 817500
b) 13 June 2022 at 10:27 showing the following message: “817500 – 100,000 = 717500 balance.”
c) 25 October 2022 at 10:59 showing the following message: 817500 – 100000 = 7175000 balance.
Cheque 100,000
Headlight premio 40000
Balance 577,500.
33. The respondent did not dispute any of these messages and the court must take them to be correct.
34. However, I note from the current submissions by learned counsel for the appellant in paragraph 4 he alleges that the appellant attached M-Pesa statements proving when the goods supplied to the respondent were paid for. That submission cannot be correct. Learned counsel did not submit as such before the SCC. The fact is that there is no M-Pesa statement filed by the appellant in the lower court. The M-Pesa statements filed were by the respondent and as pointed out above, they were not filed as documents in support of the claim but annexures to a supporting affidavit in an application to set aside the default judgment. All the same, given the flexible nature of the conduct of proceedings before the SCC where the strict rules of evidence are not to be followed, the same as the several other documents which would not be admissible in the magistrates’ courts were allowed.
35. So the only documents evidencing payment in this case are the filtered M-Pesa statements made available by the respondent and one copy of the cheque for KShs 100,000/=. Although filtered, the appellant did not raise any objection to their being relied upon and so again, in view of the flexible nature of proceedings before the SCC the same are admissible and can be relied upon.
36. When considered these documents, these are, the delivery notes, the screenshots, the M-Pesa statement and copy of cheque show and there is no dispute that the parties were in business as early as 9th January 2019 and as late as 1st December 2022. The business transaction was that the appellant was supplying the respondent with motor vehicle spare parts.
37. I find that the learned trial Adjudicator made an error of law to find that there were no signed delivery notes that had been produced to support the claim of KShs 577,000/=. The appellant indeed provided some delivery notes that were not signed. But as stated above, the same need not have been signed because strict rules of evidence are not to be applied in a SCC case. In any case, the respondent never objected to their being relied upon as evidence to prove that the good were supplied to him. He even relied upon them to assert that they were proof that he had paid more than the amount contained therein.
38. What the learned trial Adjudicator needed only to determine was whether in her estimation the delivery notes produced supported the claim or not. A reasonable person looking at the facts as presented herein should find that the delivery notes were good evidence to support the claim to a certain extent, even if not the whole of it.
39. The other error of law committed by the learned trial Adjudicator was to fail to take into account the WhatsApp screenshot messages produced by the appellant, after stating without exception that she had considered the documents made available by the parties to support their respective claims. She thus left out material evidence tendered by the appellant to support his claim and went ahead to find that the appellant had not adduced sufficient evidence to prove his claim. Yet the learned Adjudicator took into account the M-Pesa statements presented by the respondent. In doing so, she was open to the charge that she was selective in her consideration of the evidence tendered and the charge that she could have been biased cannot be easily shaken off.
40. As at 5th February 2021, the last date when payment was made by M-pesa as per the M-Pesa statements, my calculation shows that a sum of KShs 224,500/= had been paid by the respondent to the appellant. It is not KShs 748,000/= as alleged by the respondent. The parties continued carrying on business. This is evident from their further communication on WhatsApp through the year 2022.
41. On 13th April 2022 the message of “867500 – 50000 = 817500” in the WhatsApp messages is an indication that out of the balance of KShs 867,500/= an amount of KShs 50,000/= was paid leaving a balance of KShs 817,500/=.
42. On 13th June 2022, the message of “817,500 – 100,000 = 717,500 balance” can only be read to mean that out of KShs 817,500/= a sum of KShs 100,000/= was paid leaving a balance of KShs 717,000/=.
43. In the same breadth on 25th October 2022, KShs 100,000 + KShs 40,000/= on account of a Premio headlight was credited to the respondent’s account and the balance became KShs 577,500/=. This is the amount being claimed by the appellant. To that extent, there is evidence supporting it.
44. Juxtaposed against the respondent’s M-Pesa statements which are also not disputed, they show that the last payment was made on 5th February 2021 at 17:42:56. The other proof of payment after that is the cheque for KShs 100,000/= dated 21st October 2022. Yet the Whatsapp screenshots show that the transactions were going on until 1st December 2022.
45. There is the evidence of the delivery notes issued in January 2020 which go to support the fact that the parties were transacting. However, they are not for the entire period for which the parties were transacting and therefore cannot be relied upon to determine full the amount owed to the appellant by the respondent.
46. There is no further evidence of payment after 25th October 2022. It is therefore reasonable to conclude that the sum of KShs 577,500/= claimed by the appellant as owing from the respondent was never settled and so it was due as pleaded and shown in the evidence by the appellant.
47. From the foregoing analysis, I find that the appellant’s claim through his written statement was supported by the documents produced by both the appellant and the respondent. The appellant’s evidence was therefore consistent with the documentary evidence relied upon by both parties and I find that the evidence was reliable.
48. To the contrary, the respondent’s case through his pleadings and evidence that he had paid in excess of the amount owed is not supported by any evidence. Evidence of the payments he made through M-Pesa, the two cheques and the credit for the Premio headlights shows that it was KShs 224,500 + 100,000, + 100,000/= + 40,000 and the KShs 50,000/= acknowledged on 13th April 2022 as per the WhatsApp message makes a total of KShs = 514,500.
49. The first message of indebtedness is dated 13th April 2022 and is for KShs 867,500/=. The appellant’s claim runs all the way from January 2019 to December 2022. Therefore, all the above payments made by the respondent must be put to his credit so that KShs 867,500 - KShs 514,500 = KShs 353,000/=.
50. I am satisfied and I find that this is the amount proved by the appellant as due to him from the respondent.
51. Consequently, I find that the appeal has merit and the same is allowed to the extent explained above. The judgment of the trial court was erroneous on points of law and must be and is hereby set aside and substituted with a judgment allowing the appellant’s claim against the respondent in the sum of KShs 353,000/= with interest from the date of filing the suit before the SCC.
52. Costs for both this appeal and before the SCC are awarded to the appellant.
53. Orders accordingly.
54. Delivered, dated and signed on the Virtual Platform, Teams this 5th day of February 2026 and uploaded on the CTS for access by parties.
ANDAYI W. F.
JUDGE
In the presence of:
Mburu h/b for Gachie for the Appellant.
N/A for the Respondent.
Ummu: Court Assistant.