REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E650 OF 2024
(Coram: Andayi W. F., J.)
NAOMI WANJIKU MAINA...............................................................……....APPELLANT
VERSUS
ANDREW KIPLANGAT..............................................................……………RESPONDENT
(Being an appeal against the judgment and decree of Hon. J. W. Munene Adjudicator delivered on 17 th February 2023 in Milimani Small Claims Court SCCCOMM. CLAIM NO. E7915 of 2022)
JUDGMENT
1. This appeal arises from a judgment of the Small Claims Court (SCC) dated 17 th February 2023 in which the court dismissed the appellant’s claim for recovery of KShs 200,000/= advanced to the respondent as a personal loan and which had never been repaid by the respondent.
2. The respondent did not file a response to the claim.
3. Upon considering the appellant’s case the learned Adjudicator concluded that the claim had not been proved and she dismissed the same with no orders for costs.
4. The appellant was dissatisfied with the judgment and filed the present appeal through the memorandum of appeal dated 27 th May 2024 and raised the following grounds:
a. The learned Adjudicator erred both in law and in fact in reaching a conclusion that is patently contrary to the documents/evidence she accepted to be truthful.
b. The learned Adjudicator erred both in law and in fact in finding that the appellant had not proved her case on a balance of probabilities.
c. The learned Adjudicator erred both in fact by failing to consider the evidence adduced showing that the respondent had acknowledged receipt of the funds from the appellant while the same was undisputed.
d. The learned Magistrate erred both in law and in fact in contradicting herself om uncontroverted evidence thus arriving at an erroneous decision.
e. The learned Magistrate ought under all circumstances of this case to have upheld the case by the appellant.
f. The learned Magistrate erred both in law and in fact in considering extraneous matters while ignoring the relevant matters.
g. The learned Adjudicator erred both in law and in fact in dismissing the appellant’s case while ignoring evidence adduced in support.
h. All in all, the learned Magistrate so misdirected herself on matters of both law and fact as to occasion a miscarriage of justice against the appellant.
5. The appellant therefore prays that the appeal be allowed, the judgment delivered on 17 th February 2023 be set aside and substituted with an order allowing the appellant’s suit against the respondent and costs of the appeal and in the lower court be awarded to the respondent.
6. The appeal was disposed of by way of written submissions filed by learned counsel for the appellant alone.
7. Learned counsel for the appellant submits that the issues for determination in this appeal are whether or not the appellant proved her case on a balance of probabilities and who should bear the costs of the appeal.
8. Learned counsel submits that it is an undisputed fact that the appellant lent the respondent the sum of KShs 200,000/= on 7 th September 2021 as per the terms of the acknowledgment note dated 7 th September 2021 and the respondent unequivocally admitted to having received the said sum of money. He undertook to repay the same within three months.
9. Learned counsel submits that when the case came up for hearing parties agreed to have the same disposed of under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya whereby the documents filed by the parties would be admitted into evidence without calling the makers thereof. However, the suit remained undefended and therefore the only documents on record were those filed by the appellant. Learned counsel submits that the appellant duly produced as evidence the written and duly signed acknowledgment note by the respondent that he had received the money as a friendly loan. For that reason, the appellant discharged her burden of proof that she had indeed advanced the loan to the respondent. That the learned Adjudicator therefore erred in law by holding that the claimant had not adduced any evidence to prove disbursement of the loan.
10. Learned counsel relies on the case of K N v J M T [2018] KEHC 6670 (KLR) for the position that a loan is money lent by an individual to another where there is a promise to repay on a specific date. There ought to be a specified period of time when the money should be repaid. The High Court in that case found that from the evidence adduced, the money that was given out was not a loan to be repaid.
11. Learned counsel further submits that there ws documentary proof by the appellant that the money was indeed advanced to the respondent. She relies on the case of Maureen Wachera Macharia v Mary Anne Wahu Kamau & another [2017] KEHC 8335 (KLR) the claim had been proved by documentary evidence which as an acknowledgment note of receipt of the money which was duly signed and was admitted in evidence without any objection just like in the present case.
12. Learned counsel submits that the appellant duly discharged both the legal and evidentiary burden to prove that the money had been advanced to the respondent as a loan and had acknowledged receipt of the same.
13. Learned counsel has cited the case of Mbuthia Macharia v Annah Mutua Ndwiga & another [2017] KECA 290 (KLR) where the Court of Appeal held that:
“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence? In this case, the incidence of both the legal and evidential burden was with the appellant. It was upon the appellant to prove that he did not affix his signature on the transfer of the suit premises in favour of the 1 st respondent. The appellant did not adduce any such evidence nor did he call any witness. On the other hand, the 1 st respondent discharged her evidential burden by placing before court an affidavit by the appellant in which he had sworn on 24 th April, 2004; that he bequeathed to the 1 st respondent the suit premises and a transfer dated 3 rd September 2008 in favour of the 1 st respondent which displaced his claim that the 1 st respondent had stolen the title as the said transfer was effected after a new title was issued.”
14. Learned counsel also relies on the case of Peter Ngigi Kuria & another (Suing as the legal representatives of the Estate of Joan Wambui Ngigi) v Thomas Ondili Oduol & another [2019] KEHC 9425 (KLR) on the issue of uncontroverted evidence where the court observed that:
“There are any authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements.”
15. Learned counsel submits that the learned Adjudicator therefore erred in finding that the appellant had not adduced any evidence or proof of disbursement of the loan.
16. I have considered the grounds set out in the memorandum of appeal, the record of appeal and the submissions by learned counsel for the appellant.
17. The mandate of this court on an appeal arising from the SCC is provided for under section 38 of the SCCA which provides that a person aggrieved by the decision or an order of the SCC may appeal against that decision or order to the High Court on matters of law and that such an appeal shall be final. I will return to this issue shortly after disposing of some preliminary issues.
18. 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 revolutionary 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 magistrate’s 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 a reasonably informed person to determine the issues raised in the claims filed before the court. 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.
19. Back to section section 38 of the SCC Act where an appeal is on points of law the Court of Appeal in numerous decisions has consistently reiterated its decision in Stephen M’riungi & 3 others v Republic [1983] KECA 34 (KLR) , where it stated thus:
‘We would agree with the view expressed in the English case of Martin vs Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 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 as holdings of law or mixed 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’.”
20. Further, while considering what constitutes issues of law, the Supreme Court in the case of Munya v Kithinji & 2 others [2014] KESC 38 (KLR) upon extensive review of comparative jurisprudence characterized the three elements of the phrase “matters of law” as follows:
a. the technical element: involving the interpretation of a constitutional or statutory provision;
b. the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record;
c. the evidentiary element: involving the evaluation of the conclusions of a trial Court on the basis of the evidence on record.
21. Therefore, the submission by learned counsel for the appellant suggesting that this court should proceed to consider, re-evaluate and re-analyse the evidence tendered before the SCC and arrive at its own findings and conclusions thereon as held in the case of Selle vs Associated Motor Boat Company (1969) E.A 123) as is the norm in other civil matters before the magistrates’ courts is not correct.
22. All the same, as was held by the Court of Appeal in the case of Patrick Omondi Opiyo t/a Dallas Pub v Shaban Keah & another [2018] KECA 545 (KLR) , it is important to revisit, albeit briefly the facts before the trial court in order to determine whether the learned Judge arrived at the wrong conclusions of facts because questions involving the evaluation of the conclusions of a trial court on the basis of the evidence on record become points of law.
23. The evidentiary element of the issue of law as enunciated by the Supreme Court in the Munya case (supra) is what comes up for consideration in this appeal. It is involving the evaluation of the conclusions of the SCCA on the basis of the evidence on record.
24. The appellant’s case through the statement of claim dated 14 th December 2022, the witness statement of Naomi Wanjiku Maina, the appellant and the acknowledgment note dated 7 th September 2021 was simple. As per the acknowledgment note, the appellant advanced the respondent a sum of KShs 200,000/= described as a friendly loan on terms that it would be repaid within three months. The respondent failed to repay the loan and the appellant filed the claim before the Small Claims Court (SCC).
25. The respondent was duly served with summons to enter appearance and the claim. He appeared before the SCC on 19 th January 2023 and confirmed that he had been duly served on 17 th January 2023. He requested for fifteen days to file a reply to the claim and possibly engage an advocate which request the court granted but he was required to respond strictly within seven days.
26. At the same time the SCC gave directions that the matter would proceed on the basis of documents filed by parties and parties were directed to file submissions. Judgment was fixed to be delivered on 17 th February 2023 which the learned Adjudicator did, dismissing the claim.
27. In her judgment, the learned Adjudicator held that the appellant had not adduced any evidence against or proof of disbursements of the loan contrary to section 107 of the Evidence Act (Cap. 80) Laws of Kenya. She cited the case of Karugi & another v Kabiya & 3 others [1983] KECA 38 (KLR) where Hancox, JA agreeing with the leading judgment stated that:
“Neither can I agree with Mr Waweru that the burden of proof is in any way lessened because the case is heard by way of formal proof. The burden on the plaintiff to prove his case remains the same, though it is true that, where the matter is not defended, or, as here, validly defended that burden may become easier to discharge.
28. 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.
29. 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.
30. In the present case, the respondent did not file a response to the appellant’s to discounts the appellant’s claim despite being given indulgence by the Court to do so.
31. The case proceeded by way of the pleadings, witness statements and documents 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.
32. The appellant relied on an acknowledgment note dated 7 th September 2021 signed by the respondent to establish her case that she had advanced a sum of KShs 200,000/= to be repaid within three months. The same not having been disputed by the respondent the learned Adjudicator should have taken it, together with the appellant’s written statement, to be correct and reliable and therefore sufficient proof of the appellant’s case in accordance with the provisions of the SCCA.
33. It is apparent that the learned Adjudicator failed to consider the acknowledgment note and therefore to determine whether in the estimation of a reasonably informed person, the documentary material produced by the appellant supported the claim or not. On the standard of a reasonably informed person looking at the facts as presented therein, I think the finding should have been that the documentary material consisting of the witness statement, and the acknowledgment note was good enough to support the claim.
34. From the foregoing analysis, I find that the appellant’s claim through her written statement was supported by the document she made available. I am satisfied that considering the same objectively under the provisions of the SCCA and on what decision a reasonably informed person presented with the facts would come to, I am satisfied that the claim was proved on a balance of probability that the amount claimed was by the appellant was due to him from the respondent.
35. I find that for the learned Adjudicator to have held that the appellant had not adduced any evidence to prove disbursement of the loan to the respondent when there was an undisputed acknowledgment by the respondent that he had indeed received the money as a loan was a grave error. It simply means that the learned Adjudicator did not take that evidence into consideration while making her decision which was an error of law.
36. I therefore find that the learned Adjudicator’s judgment is for setting aside as there was an error of law in failing to take into account a material factor, being the uncontroverted evidence by way of the acknowledgment note that the respondent had indeed been advanced the money, KShs 200,000/= by the appellant and which he had failed to repay within the three months as agreed.
37. Consequently, I find that the appeal has merit and the same is allowed. The judgment of the trial court was erroneous in law and must be and is hereby set aside and substituted with a judgment allowing the appellant’s claim against the respondent before the SCC in the sum of KShs 200,000/= with interest from the date of filing the claim before the SCC.
38. Costs for both this appeal and before the SCC are awarded to the appellant.
39. Orders accordingly.
Delivered, dated and signed on the Virtual Platform, Teams this 14 th day of September 2026 and uploaded on the CTS for access by parties.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Appellant.
N/A for the Respondent.
Ummu: Court Assistant.
ANDAYI W.F.
JUDGE
HCCA No. E650/20241/personal loan
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E650 OF 2024
(Coram: Andayi W. F., J.)
NAOMI WANJIKU MAINA...............................................................……....APPELLANT
VERSUS
ANDREW KIPLANGAT..............................................................……………RESPONDENT
(Being an appeal against the judgment and decree of Hon. J. W. Munene Adjudicator delivered on 17 th February 2023 in Milimani Small Claims Court SCCCOMM. CLAIM NO. E7915 of 2022)
JUDGMENT
1. This appeal arises from a judgment of the Small Claims Court (SCC) dated 17 th February 2023 in which the court dismissed the appellant’s claim for recovery of KShs 200,000/= advanced to the respondent as a personal loan and which had never been repaid by the respondent.
2. The respondent did not file a response to the claim.
3. Upon considering the appellant’s case the learned Adjudicator concluded that the claim had not been proved and she dismissed the same with no orders for costs.
4. The appellant was dissatisfied with the judgment and filed the present appeal through the memorandum of appeal dated 27 th May 2024 and raised the following grounds:
a. The learned Adjudicator erred both in law and in fact in reaching a conclusion that is patently contrary to the documents/evidence she accepted to be truthful.
b. The learned Adjudicator erred both in law and in fact in finding that the appellant had not proved her case on a balance of probabilities.
c. The learned Adjudicator erred both in fact by failing to consider the evidence adduced showing that the respondent had acknowledged receipt of the funds from the appellant while the same was undisputed.
d. The learned Magistrate erred both in law and in fact in contradicting herself om uncontroverted evidence thus arriving at an erroneous decision.
e. The learned Magistrate ought under all circumstances of this case to have upheld the case by the appellant.
f. The learned Magistrate erred both in law and in fact in considering extraneous matters while ignoring the relevant matters.
g. The learned Adjudicator erred both in law and in fact in dismissing the appellant’s case while ignoring evidence adduced in support.
h. All in all, the learned Magistrate so misdirected herself on matters of both law and fact as to occasion a miscarriage of justice against the appellant.
5. The appellant therefore prays that the appeal be allowed, the judgment delivered on 17 th February 2023 be set aside and substituted with an order allowing the appellant’s suit against the respondent and costs of the appeal and in the lower court be awarded to the respondent.
6. The appeal was disposed of by way of written submissions filed by learned counsel for the appellant alone.
7. Learned counsel for the appellant submits that the issues for determination in this appeal are whether or not the appellant proved her case on a balance of probabilities and who should bear the costs of the appeal.
8. Learned counsel submits that it is an undisputed fact that the appellant lent the respondent the sum of KShs 200,000/= on 7 th September 2021 as per the terms of the acknowledgment note dated 7 th September 2021 and the respondent unequivocally admitted to having received the said sum of money. He undertook to repay the same within three months.
9. Learned counsel submits that when the case came up for hearing parties agreed to have the same disposed of under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya whereby the documents filed by the parties would be admitted into evidence without calling the makers thereof. However, the suit remained undefended and therefore the only documents on record were those filed by the appellant. Learned counsel submits that the appellant duly produced as evidence the written and duly signed acknowledgment note by the respondent that he had received the money as a friendly loan. For that reason, the appellant discharged her burden of proof that she had indeed advanced the loan to the respondent. That the learned Adjudicator therefore erred in law by holding that the claimant had not adduced any evidence to prove disbursement of the loan.
10. Learned counsel relies on the case of K N v J M T [2018] KEHC 6670 (KLR) for the position that a loan is money lent by an individual to another where there is a promise to repay on a specific date. There ought to be a specified period of time when the money should be repaid. The High Court in that case found that from the evidence adduced, the money that was given out was not a loan to be repaid.
11. Learned counsel further submits that there ws documentary proof by the appellant that the money was indeed advanced to the respondent. She relies on the case of Maureen Wachera Macharia v Mary Anne Wahu Kamau & another [2017] KEHC 8335 (KLR) the claim had been proved by documentary evidence which as an acknowledgment note of receipt of the money which was duly signed and was admitted in evidence without any objection just like in the present case.
12. Learned counsel submits that the appellant duly discharged both the legal and evidentiary burden to prove that the money had been advanced to the respondent as a loan and had acknowledged receipt of the same.
13. Learned counsel has cited the case of Mbuthia Macharia v Annah Mutua Ndwiga & another [2017] KECA 290 (KLR) where the Court of Appeal held that:
“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence? In this case, the incidence of both the legal and evidential burden was with the appellant. It was upon the appellant to prove that he did not affix his signature on the transfer of the suit premises in favour of the 1 st respondent. The appellant did not adduce any such evidence nor did he call any witness. On the other hand, the 1 st respondent discharged her evidential burden by placing before court an affidavit by the appellant in which he had sworn on 24 th April, 2004; that he bequeathed to the 1 st respondent the suit premises and a transfer dated 3 rd September 2008 in favour of the 1 st respondent which displaced his claim that the 1 st respondent had stolen the title as the said transfer was effected after a new title was issued.”
14. Learned counsel also relies on the case of Peter Ngigi Kuria & another (Suing as the legal representatives of the Estate of Joan Wambui Ngigi) v Thomas Ondili Oduol & another [2019] KEHC 9425 (KLR) on the issue of uncontroverted evidence where the court observed that:
“There are any authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements.”
15. Learned counsel submits that the learned Adjudicator therefore erred in finding that the appellant had not adduced any evidence or proof of disbursement of the loan.
16. I have considered the grounds set out in the memorandum of appeal, the record of appeal and the submissions by learned counsel for the appellant.
17. The mandate of this court on an appeal arising from the SCC is provided for under section 38 of the SCCA which provides that a person aggrieved by the decision or an order of the SCC may appeal against that decision or order to the High Court on matters of law and that such an appeal shall be final. I will return to this issue shortly after disposing of some preliminary issues.
18. 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 revolutionary 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 magistrate’s 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 a reasonably informed person to determine the issues raised in the claims filed before the court. 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.
19. Back to section section 38 of the SCC Act where an appeal is on points of law the Court of Appeal in numerous decisions has consistently reiterated its decision in Stephen M’riungi & 3 others v Republic [1983] KECA 34 (KLR) , where it stated thus:
‘We would agree with the view expressed in the English case of Martin vs Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 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 as holdings of law or mixed 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’.”
20. Further, while considering what constitutes issues of law, the Supreme Court in the case of Munya v Kithinji & 2 others [2014] KESC 38 (KLR) upon extensive review of comparative jurisprudence characterized the three elements of the phrase “matters of law” as follows:
a. the technical element: involving the interpretation of a constitutional or statutory provision;
b. the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record;
c. the evidentiary element: involving the evaluation of the conclusions of a trial Court on the basis of the evidence on record.
21. Therefore, the submission by learned counsel for the appellant suggesting that this court should proceed to consider, re-evaluate and re-analyse the evidence tendered before the SCC and arrive at its own findings and conclusions thereon as held in the case of Selle vs Associated Motor Boat Company (1969) E.A 123) as is the norm in other civil matters before the magistrates’ courts is not correct.
22. All the same, as was held by the Court of Appeal in the case of Patrick Omondi Opiyo t/a Dallas Pub v Shaban Keah & another [2018] KECA 545 (KLR) , it is important to revisit, albeit briefly the facts before the trial court in order to determine whether the learned Judge arrived at the wrong conclusions of facts because questions involving the evaluation of the conclusions of a trial court on the basis of the evidence on record become points of law.
23. The evidentiary element of the issue of law as enunciated by the Supreme Court in the Munya case (supra) is what comes up for consideration in this appeal. It is involving the evaluation of the conclusions of the SCCA on the basis of the evidence on record.
24. The appellant’s case through the statement of claim dated 14 th December 2022, the witness statement of Naomi Wanjiku Maina, the appellant and the acknowledgment note dated 7 th September 2021 was simple. As per the acknowledgment note, the appellant advanced the respondent a sum of KShs 200,000/= described as a friendly loan on terms that it would be repaid within three months. The respondent failed to repay the loan and the appellant filed the claim before the Small Claims Court (SCC).
25. The respondent was duly served with summons to enter appearance and the claim. He appeared before the SCC on 19 th January 2023 and confirmed that he had been duly served on 17 th January 2023. He requested for fifteen days to file a reply to the claim and possibly engage an advocate which request the court granted but he was required to respond strictly within seven days.
26. At the same time the SCC gave directions that the matter would proceed on the basis of documents filed by parties and parties were directed to file submissions. Judgment was fixed to be delivered on 17 th February 2023 which the learned Adjudicator did, dismissing the claim.
27. In her judgment, the learned Adjudicator held that the appellant had not adduced any evidence against or proof of disbursements of the loan contrary to section 107 of the Evidence Act (Cap. 80) Laws of Kenya. She cited the case of Karugi & another v Kabiya & 3 others [1983] KECA 38 (KLR) where Hancox, JA agreeing with the leading judgment stated that:
“Neither can I agree with Mr Waweru that the burden of proof is in any way lessened because the case is heard by way of formal proof. The burden on the plaintiff to prove his case remains the same, though it is true that, where the matter is not defended, or, as here, validly defended that burden may become easier to discharge.
28. 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.
29. 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.
30. In the present case, the respondent did not file a response to the appellant’s to discounts the appellant’s claim despite being given indulgence by the Court to do so.
31. The case proceeded by way of the pleadings, witness statements and documents 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.
32. The appellant relied on an acknowledgment note dated 7 th September 2021 signed by the respondent to establish her case that she had advanced a sum of KShs 200,000/= to be repaid within three months. The same not having been disputed by the respondent the learned Adjudicator should have taken it, together with the appellant’s written statement, to be correct and reliable and therefore sufficient proof of the appellant’s case in accordance with the provisions of the SCCA.
33. It is apparent that the learned Adjudicator failed to consider the acknowledgment note and therefore to determine whether in the estimation of a reasonably informed person, the documentary material produced by the appellant supported the claim or not. On the standard of a reasonably informed person looking at the facts as presented therein, I think the finding should have been that the documentary material consisting of the witness statement, and the acknowledgment note was good enough to support the claim.
34. From the foregoing analysis, I find that the appellant’s claim through her written statement was supported by the document she made available. I am satisfied that considering the same objectively under the provisions of the SCCA and on what decision a reasonably informed person presented with the facts would come to, I am satisfied that the claim was proved on a balance of probability that the amount claimed was by the appellant was due to him from the respondent.
35. I find that for the learned Adjudicator to have held that the appellant had not adduced any evidence to prove disbursement of the loan to the respondent when there was an undisputed acknowledgment by the respondent that he had indeed received the money as a loan was a grave error. It simply means that the learned Adjudicator did not take that evidence into consideration while making her decision which was an error of law.
36. I therefore find that the learned Adjudicator’s judgment is for setting aside as there was an error of law in failing to take into account a material factor, being the uncontroverted evidence by way of the acknowledgment note that the respondent had indeed been advanced the money, KShs 200,000/= by the appellant and which he had failed to repay within the three months as agreed.
37. Consequently, I find that the appeal has merit and the same is allowed. The judgment of the trial court was erroneous in law and must be and is hereby set aside and substituted with a judgment allowing the appellant’s claim against the respondent before the SCC in the sum of KShs 200,000/= with interest from the date of filing the claim before the SCC.
38. Costs for both this appeal and before the SCC are awarded to the appellant.
39. Orders accordingly.
Delivered, dated and signed on the Virtual Platform, Teams this 14 th day of September 2026 and uploaded on the CTS for access by parties.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Appellant.
N/A for the Respondent.
Ummu: Court Assistant.
ANDAYI W.F.
JUDGE
HCCA No. E650/20241/personal loan