'(Appeal from the judgement and decree, of Hon. Kiongo Kagenyo, Resident Magistrate, of 11th October 2024, in Milimani SCCCOMM No. E7435 of 2023)
JUDGEMENT
1. The claim, at the trial court, was by the appellant, against the respondent, arising from a dispute over an alleged unpaid commission, of Kshs. 50,000.00. The claim was resisted by the respondent, who averred that it had offered the appellant a commission of Kshs. 20,000.00; which the appellant had refused.
2. The matter was handled viva voce. The appellant testified; while the respondent did not call a witness. Judgement was delivered, on 14th October 2024, dismissing the claim, on grounds that it related to an employee-employer relationship, and the jurisdiction of the Small Claims Court, over it, was excluded by section 13(5) of the Small Claims Court Act, Cap 10A, Laws of Kenya.
3. The appellant was aggrieved, hence the instant appeal. The grounds revolve around the manner in which the case was conducted, and included arguments that the appellant was discriminated against for self-representing, and that she was bulldozed out of the seat of justice; the Advocate for the respondent had, at one time, sought to have the matter resolved out of court; the respondent had admitted liability for Kshs. 30,000.00; the matter was rushed to hearing, under section 30 of the Small Claims Court Act; she was denied her fair hearing rights, under Articles 47 and 50 of the Constitution, and section 4(2) of the Fair Administrative Action Act, Cap. 7L, Laws of Kenya; and his case was not given sufficient consideration.
4. The case, at the Small Claims Court, was filed on 26th September 2023, and determined on 14th October 2024, when the judgement, dated 11th October 2024, was delivered.
5. Under section 34 of the Small Claims Court Act, the adjudicator has 60 days, from the date of the filing of the claim, to hear and determine it. That would mean that a judgement, delivered outside the 60 days, would be without jurisdiction, and an appeal, challenging the determination on merits, would be incompetent.
6. 60 days, from 26th September 2023, expired on or before 26th November 2023. A judgement, delivered on 14th October 2024, was clearly by a court which had no jurisdiction, and it was a nullity. As such, there is nothing for me to determine, for a null Judgment can only lead to an incompetent appeal, if the same attacks the null judgement on its merits.
7. The alleged cause of action arose out of an alleged contractual arrangement between the appellant and the respondent, and accrued sometime in September 2021 or thereabout. Under the Limitation of Actions Act, Cap 22, Laws of Kenya, an action, founded on a contract, should be filed within 6 years of the breach of the contract. That would mean that the claim herein was filed within the requisite 6 years.
8. What has been lost is the jurisdiction of the Small Claims Court, to handle the dispute. That should not affect the viability of the claim, for it was filed within the requisite limitation period, and the claim is still outstanding, given that its purported determination was by a court lacking jurisdiction, and the determination was a nullity, which amounted to a no determination.
9. The claim was a pure civil claim. I will not venture to evaluate whether it revolved around employment and labour relations, for the appellant has not raised that issue. For now, I shall presume that it is a pure civil matter, in respect of which other courts would still have jurisdiction to hear and determine, such as the Magistrate Court and the High Court, or even the Employment and Labour Relations Court, should it be an employment and labour relations dispute.
10. To do justice to the parties, the way forward should be to exercise the supervisory jurisdiction, conferred on the High Court, by Article 165(6)(7) of the Constitution, and order transfer of the claim, from the Small Claims Court, to the Magistrate Court, under section 18 of the Civil Procedure Act, Cap 21, Laws of Kenya. It shall be transferred to the Magistrate Court at the Milimani Commercial Courts, for hearing and final disposal. To facilitate that, I shall declare the proceedings, conducted by the Small Claims Court, null and void.
11. The appeal herein is disposed of in those terms. Orders accordingly.
DELIVERED, VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA, ON THIS 4TH DAY OF DECEMBER 2025.
WM MUSYOKA
JUDGE
Mr. Arthur Etyang, Court Assistant, Busia.
Mr. Michael Onyango, Court Assistant, Milimani, Nairobi.
Miss Milcah Mutheni Ndiku, the appellant, in person.
Advocates
Mr. Mwachofi, instructed by Apudo Kamuyu & Mariga, Advocates for the respondent
'
JUDGEMENT
1. The claim, at the trial court, was by the appellant, against the respondent, arising from a dispute over an alleged unpaid commission, of Kshs. 50,000.00. The claim was resisted by the respondent, who averred that it had offered the appellant a commission of Kshs. 20,000.00; which the appellant had refused.
2. The matter was handled viva voce. The appellant testified; while the respondent did not call a witness. Judgement was delivered, on 14th October 2024, dismissing the claim, on grounds that it related to an employee-employer relationship, and the jurisdiction of the Small Claims Court, over it, was excluded by section 13(5) of the Small Claims Court Act, Cap 10A, Laws of Kenya.
3. The appellant was aggrieved, hence the instant appeal. The grounds revolve around the manner in which the case was conducted, and included arguments that the appellant was discriminated against for self-representing, and that she was bulldozed out of the seat of justice; the Advocate for the respondent had, at one time, sought to have the matter resolved out of court; the respondent had admitted liability for Kshs. 30,000.00; the matter was rushed to hearing, under section 30 of the Small Claims Court Act; she was denied her fair hearing rights, under Articles 47 and 50 of the Constitution, and section 4(2) of the Fair Administrative Action Act, Cap. 7L, Laws of Kenya; and his case was not given sufficient consideration.
4. The case, at the Small Claims Court, was filed on 26th September 2023, and determined on 14th October 2024, when the judgement, dated 11th October 2024, was delivered.
5. Under section 34 of the Small Claims Court Act, the adjudicator has 60 days, from the date of the filing of the claim, to hear and determine it. That would mean that a judgement, delivered outside the 60 days, would be without jurisdiction, and an appeal, challenging the determination on merits, would be incompetent.
6. 60 days, from 26th September 2023, expired on or before 26th November 2023. A judgement, delivered on 14th October 2024, was clearly by a court which had no jurisdiction, and it was a nullity. As such, there is nothing for me to determine, for a null Judgment can only lead to an incompetent appeal, if the same attacks the null judgement on its merits.
7. The alleged cause of action arose out of an alleged contractual arrangement between the appellant and the respondent, and accrued sometime in September 2021 or thereabout. Under the Limitation of Actions Act, Cap 22, Laws of Kenya, an action, founded on a contract, should be filed within 6 years of the breach of the contract. That would mean that the claim herein was filed within the requisite 6 years.
8. What has been lost is the jurisdiction of the Small Claims Court, to handle the dispute. That should not affect the viability of the claim, for it was filed within the requisite limitation period, and the claim is still outstanding, given that its purported determination was by a court lacking jurisdiction, and the determination was a nullity, which amounted to a no determination.
9. The claim was a pure civil claim. I will not venture to evaluate whether it revolved around employment and labour relations, for the appellant has not raised that issue. For now, I shall presume that it is a pure civil matter, in respect of which other courts would still have jurisdiction to hear and determine, such as the Magistrate Court and the High Court, or even the Employment and Labour Relations Court, should it be an employment and labour relations dispute.
10. To do justice to the parties, the way forward should be to exercise the supervisory jurisdiction, conferred on the High Court, by Article 165(6)(7) of the Constitution, and order transfer of the claim, from the Small Claims Court, to the Magistrate Court, under section 18 of the Civil Procedure Act, Cap 21, Laws of Kenya. It shall be transferred to the Magistrate Court at the Milimani Commercial Courts, for hearing and final disposal. To facilitate that, I shall declare the proceedings, conducted by the Small Claims Court, null and void.
11. The appeal herein is disposed of in those terms. Orders accordingly.
DELIVERED, VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA, ON THIS 4TH DAY OF DECEMBER 2025.
WM MUSYOKA
JUDGE
Mr. Arthur Etyang, Court Assistant, Busia.
Mr. Michael Onyango, Court Assistant, Milimani, Nairobi.
Miss Milcah Mutheni Ndiku, the appellant, in person.
Advocates
Mr. Mwachofi, instructed by Apudo Kamuyu & Mariga, Advocates for the respondent
'