A. INTRODUCTION
1. This is an appeal from the judgment of the Small Claims Court in SCCOM No. E947 of 2023 , delivered on 3 May 2023, by which the Appellant's claim was dismissed with costs. The court profusely apologizes to the parties for the delay in the delivery of the judgement. The file had been misplaced until recently when the court discovered the same as it was reviewing the performance reports thus the delay was not intended for nor deliberate.
2. The dispute arose from dealings between the parties in which, according to the Appellant, the Respondent purchased animal feeds and other assorted goods from her business, Neema Agrovet, on credit between 2019 and 2021.
3. The Appellant's case was that although the Respondent made payments from time to time, a balance remained outstanding, which the Appellant placed at Kshs. 319,060 . She further claimed Kshs. 15,000 as debt-collection charges.
4. The Respondent resisted the claim and maintained that she had paid for the goods supplied, whether in full or in part, and that no amount remained due. She also called upon the Appellant to provide a proper account of the alleged transactions, including the goods supplied, their prices, payments made, the alleged outstanding balance, purchase orders and delivery notes.
5. The matter was determined by the Small Claims Court by way of documents and written submissions pursuant to section 30 of the Small Claims Court Act, rather than through an ordinary oral hearing.
6. The learned Adjudicator dismissed the claim after finding, among other things, that the Appellant had not placed before the Court sufficient documentary evidence, such as delivery notes, invoices or statements of account, to establish the alleged debt. The Adjudicator also referred to sections 107 and 112 of the Evidence Act.
7. Aggrieved by that decision, the Appellant lodged a Memorandum of Appeal dated 30 May 2023.
8. The grounds of appeal being that;-
a). the learned Adjudicator erred in law and fact by disregarding the invoices and demand letters annexed to the claim by applying the rules of evidence too strictly notwithstanding the statutory framework of the Small Claims Court;
b). the adjudicator erred by failing to give due weight to the Respondent's admission that there had been business transactions between the parties on credit, and;
c). the learned adjudicator erred in law by disregarding evidence filed together with the pleadings and submissions which, according to the Appellant, had not been controverted.
9. The Appellant therefore contended that the documents placed before the Small Claims Court were sufficient to establish her claim, while the Respondent maintained that the burden remained upon the Appellant to prove the alleged debt and that the learned Adjudicator properly found that the evidence did not meet that burden.
ANALYSIS AND DETERMINATION
B. THE SCOPE OF THIS APPEAL
10. This is an appeal from the Small Claims Court and Section 38 of the Small Claims Court Act permits an appeal to the High Court only on matters of law. The decision of this Court on such an appeal is final.
11. The restriction is important because this Court is not sitting as a second trial court. It is not open to the Court to reconsider every factual question which arose before the Adjudicator or to substitute its own view of the evidence merely because it might have reached a different conclusion.
12. The High Court has repeatedly taken that approach in appeals from the Small Claims Court. In Macharia v Kendagor & another (Civil Appeal E998 of 2024), the Court observed that section 38 limits the jurisdiction of the High Court to matters of law, while in Wanjiru v Kikombo (Civil Appeal E398 of 2022) the Court emphasised that the jurisdiction does not permit the High Court to re-evaluate factual matters as though it were hearing the dispute for the first time.
13. The same point was reiterated in Ojwang & another v Kagunya (2025) KEHC 6153 (KLR), where the High Court held that the jurisdiction of the High Court under section 38 is akin to that exercised by the Court of Appeal on a second appeal, meaning that the Court should not interfere with findings of fact merely because another view may be taken on the evidence unless there is an error of law in the manner in which the matter was determined.
14. That does not mean, however, that a complaint concerning evidence can never raise a question of law. Where a court fails to consider material evidence, applies an incorrect legal principle, places the burden of proof upon the wrong party, or reaches a conclusion upon a material misapprehension of the evidence, the complaint may properly become one of law.
15. The court in Mbogo and Another vs. Shah [1968] EA 93 stated: “…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
16. The failure by an adjudicator or any court to consider evidence placed before it is a question of law that would warrant a review of the decision of the court.
17. Parties do not present evidence for the sake of it and if the court does not consider the evidence the affected party cannot be said to have received a fair hearing in terms of Article 50 (1) of the Constitution. One cannot be said to have fairly arbitrated a dispute between parties where it is shown that the evidence tendered by one of the parties was completely ignored.
18. The issue in this appeal is therefore not whether this Court would have reached the same conclusion as the learned Adjudicator on the evidence, but whether the Adjudicator reached the decision to dismiss the claim in accordance with the law and upon a proper consideration of the material the court.
19. The Appellant had the burden of proving the facts upon which her claim was founded. Section 107 of the Evidence Act places that burden upon the person who seeks judgment based upon the existence of particular facts. The learned Adjudicator was therefore right to begin from the position that the Appellant was required to establish the alleged debt.
20. Indeed, a recent High Court decision, SMC (Minor Suing through the father and Next Friend JCM) v Chau (2026) KEHC 59 (KLR ) , recognised the same principle in an appeal from the Small Claims Court.
21. The court upon receiving the documents in support of the claim was duty bound to examine each of those documents and make a specific finding on each of them to determine whether the claimant had discharged the evidential burden place upon him under Section 107 of the Evidence Act.
22. This is where Section 30 of the Small Claims Courts Act assumes importance.
23. The matter was determined based on documents and written submissions. In Gem Motor Wash Limited v Blueflame Energy Solutions Limited (2024) KEHC 15318 KLR , the High Court considered the effect of section 30 and held that, where proceedings are conducted on that basis, the documents presented by the parties constitute the evidence which the Adjudicator is required to consider in determining the claim.
24. This court holds a similar view and where the adjudicator fails to do so then the High Court can exercise its jurisdiction under Section 38 of the Act because an adjudicator has no discretion on whether or not to consider the evidence by parties. It is a mandatory requirement of the law that all the evidence once admitted must be considered. The discretion of the adjudicator would be limited to the weight to be attached to a specific limb of evidence.
25. The Appellant's complaint is that the learned Adjudicator disregarded the invoices and demand letters which had been placed before the Court whereas the Respondent argued that the documents were insufficient to prove the debt and that the Adjudicator was entitled to reject the claim.
26. Where the court is shown to have proceeded to determine a matter on the basis that a material document was never produced when the record shows that it was produced, that is not a matter of weight of the evidence but a material misdirection on the part of the court that would instantly confer jurisdiction upon the High Court to intervene.
27. This court has perused the record and noted that the appellant's case was supported by invoices and demand letters, and the first ground of appeal specifically complains that those documents were disregarded.
28. The learned Adjudicator, stated that the Appellant had not produced invoices to establish the alleged debt. That finding is difficult to reconcile with the record upon which the appeal has been presented.
29. I do not wish to make a finding that the invoices proved the debt of Kshs. 319,060. That would fail within the exclusive domain of the trial court to make a finding upon assessment of the weight and sufficiency of the documents.
30. The learned Adjudicator having held that there were documents to support the claim that was an error apparent on face of the record and amounted to a gross misdirection on the part of the adjudicator.
31. The High Court in Elrons Limited v Basil (2024) KEHC 6614 (KLR ) emphasised that the Small Claims Court was established to provide a simple and concise process, without the procedural complexity associated with ordinary civil litigation, and that the court should not import unnecessary technicality into proceedings which Parliament intended to be simple and expeditious.
32. That principle, however, does not lessen the duty of the court to consider evidence fully and accord it the necessary weight.
33. The simplification of the procedure was for purposes of expediting the disposal of small claims to give parties an avenue for faster resolution of less complex matters that had bogged down our judicial system and allow the other courts dedicate more time to the complex disputes. Simplification must never equate to compromised justice processes that do not pay regard to established principles of dispute resolution such as reasoned consideration of evidence.
34. Having failed to consider the appellants documents the learned Adjudicator fell into a legal error.
35. This was not merely a disagreement about the weight to be attached to the invoices; it affected the manner in which the Appellant's case was considered.
D. DISPOSITION
36. For the above stated reasons, I find that the Appellant has established an error of law falling within the limited jurisdiction conferred upon this Court by section 38 of the Small Claims Court Act.
37. The appeal therefore succeeds the decision of the adjudicator is set aside in its entirety and as a consequence I make the following orders;-
:
a. The appeal is allowed.
b. The judgment and consequential orders of the Small Claims Court in SCCOM No. E947 of 2023, delivered on 3 May 2023, are set aside.
c. The matter is remitted to the Small Claims Court for determination afresh by a different Adjudicator, upon the existing record and in accordance with the law.
d). cost to the appellant.
38. It is so ordered.
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1. This is an appeal from the judgment of the Small Claims Court in SCCOM No. E947 of 2023 , delivered on 3 May 2023, by which the Appellant's claim was dismissed with costs. The court profusely apologizes to the parties for the delay in the delivery of the judgement. The file had been misplaced until recently when the court discovered the same as it was reviewing the performance reports thus the delay was not intended for nor deliberate.
2. The dispute arose from dealings between the parties in which, according to the Appellant, the Respondent purchased animal feeds and other assorted goods from her business, Neema Agrovet, on credit between 2019 and 2021.
3. The Appellant's case was that although the Respondent made payments from time to time, a balance remained outstanding, which the Appellant placed at Kshs. 319,060 . She further claimed Kshs. 15,000 as debt-collection charges.
4. The Respondent resisted the claim and maintained that she had paid for the goods supplied, whether in full or in part, and that no amount remained due. She also called upon the Appellant to provide a proper account of the alleged transactions, including the goods supplied, their prices, payments made, the alleged outstanding balance, purchase orders and delivery notes.
5. The matter was determined by the Small Claims Court by way of documents and written submissions pursuant to section 30 of the Small Claims Court Act, rather than through an ordinary oral hearing.
6. The learned Adjudicator dismissed the claim after finding, among other things, that the Appellant had not placed before the Court sufficient documentary evidence, such as delivery notes, invoices or statements of account, to establish the alleged debt. The Adjudicator also referred to sections 107 and 112 of the Evidence Act.
7. Aggrieved by that decision, the Appellant lodged a Memorandum of Appeal dated 30 May 2023.
8. The grounds of appeal being that;-
a). the learned Adjudicator erred in law and fact by disregarding the invoices and demand letters annexed to the claim by applying the rules of evidence too strictly notwithstanding the statutory framework of the Small Claims Court;
b). the adjudicator erred by failing to give due weight to the Respondent's admission that there had been business transactions between the parties on credit, and;
c). the learned adjudicator erred in law by disregarding evidence filed together with the pleadings and submissions which, according to the Appellant, had not been controverted.
9. The Appellant therefore contended that the documents placed before the Small Claims Court were sufficient to establish her claim, while the Respondent maintained that the burden remained upon the Appellant to prove the alleged debt and that the learned Adjudicator properly found that the evidence did not meet that burden.
ANALYSIS AND DETERMINATION
B. THE SCOPE OF THIS APPEAL
10. This is an appeal from the Small Claims Court and Section 38 of the Small Claims Court Act permits an appeal to the High Court only on matters of law. The decision of this Court on such an appeal is final.
11. The restriction is important because this Court is not sitting as a second trial court. It is not open to the Court to reconsider every factual question which arose before the Adjudicator or to substitute its own view of the evidence merely because it might have reached a different conclusion.
12. The High Court has repeatedly taken that approach in appeals from the Small Claims Court. In Macharia v Kendagor & another (Civil Appeal E998 of 2024), the Court observed that section 38 limits the jurisdiction of the High Court to matters of law, while in Wanjiru v Kikombo (Civil Appeal E398 of 2022) the Court emphasised that the jurisdiction does not permit the High Court to re-evaluate factual matters as though it were hearing the dispute for the first time.
13. The same point was reiterated in Ojwang & another v Kagunya (2025) KEHC 6153 (KLR), where the High Court held that the jurisdiction of the High Court under section 38 is akin to that exercised by the Court of Appeal on a second appeal, meaning that the Court should not interfere with findings of fact merely because another view may be taken on the evidence unless there is an error of law in the manner in which the matter was determined.
14. That does not mean, however, that a complaint concerning evidence can never raise a question of law. Where a court fails to consider material evidence, applies an incorrect legal principle, places the burden of proof upon the wrong party, or reaches a conclusion upon a material misapprehension of the evidence, the complaint may properly become one of law.
15. The court in Mbogo and Another vs. Shah [1968] EA 93 stated: “…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
16. The failure by an adjudicator or any court to consider evidence placed before it is a question of law that would warrant a review of the decision of the court.
17. Parties do not present evidence for the sake of it and if the court does not consider the evidence the affected party cannot be said to have received a fair hearing in terms of Article 50 (1) of the Constitution. One cannot be said to have fairly arbitrated a dispute between parties where it is shown that the evidence tendered by one of the parties was completely ignored.
18. The issue in this appeal is therefore not whether this Court would have reached the same conclusion as the learned Adjudicator on the evidence, but whether the Adjudicator reached the decision to dismiss the claim in accordance with the law and upon a proper consideration of the material the court.
19. The Appellant had the burden of proving the facts upon which her claim was founded. Section 107 of the Evidence Act places that burden upon the person who seeks judgment based upon the existence of particular facts. The learned Adjudicator was therefore right to begin from the position that the Appellant was required to establish the alleged debt.
20. Indeed, a recent High Court decision, SMC (Minor Suing through the father and Next Friend JCM) v Chau (2026) KEHC 59 (KLR ) , recognised the same principle in an appeal from the Small Claims Court.
21. The court upon receiving the documents in support of the claim was duty bound to examine each of those documents and make a specific finding on each of them to determine whether the claimant had discharged the evidential burden place upon him under Section 107 of the Evidence Act.
22. This is where Section 30 of the Small Claims Courts Act assumes importance.
23. The matter was determined based on documents and written submissions. In Gem Motor Wash Limited v Blueflame Energy Solutions Limited (2024) KEHC 15318 KLR , the High Court considered the effect of section 30 and held that, where proceedings are conducted on that basis, the documents presented by the parties constitute the evidence which the Adjudicator is required to consider in determining the claim.
24. This court holds a similar view and where the adjudicator fails to do so then the High Court can exercise its jurisdiction under Section 38 of the Act because an adjudicator has no discretion on whether or not to consider the evidence by parties. It is a mandatory requirement of the law that all the evidence once admitted must be considered. The discretion of the adjudicator would be limited to the weight to be attached to a specific limb of evidence.
25. The Appellant's complaint is that the learned Adjudicator disregarded the invoices and demand letters which had been placed before the Court whereas the Respondent argued that the documents were insufficient to prove the debt and that the Adjudicator was entitled to reject the claim.
26. Where the court is shown to have proceeded to determine a matter on the basis that a material document was never produced when the record shows that it was produced, that is not a matter of weight of the evidence but a material misdirection on the part of the court that would instantly confer jurisdiction upon the High Court to intervene.
27. This court has perused the record and noted that the appellant's case was supported by invoices and demand letters, and the first ground of appeal specifically complains that those documents were disregarded.
28. The learned Adjudicator, stated that the Appellant had not produced invoices to establish the alleged debt. That finding is difficult to reconcile with the record upon which the appeal has been presented.
29. I do not wish to make a finding that the invoices proved the debt of Kshs. 319,060. That would fail within the exclusive domain of the trial court to make a finding upon assessment of the weight and sufficiency of the documents.
30. The learned Adjudicator having held that there were documents to support the claim that was an error apparent on face of the record and amounted to a gross misdirection on the part of the adjudicator.
31. The High Court in Elrons Limited v Basil (2024) KEHC 6614 (KLR ) emphasised that the Small Claims Court was established to provide a simple and concise process, without the procedural complexity associated with ordinary civil litigation, and that the court should not import unnecessary technicality into proceedings which Parliament intended to be simple and expeditious.
32. That principle, however, does not lessen the duty of the court to consider evidence fully and accord it the necessary weight.
33. The simplification of the procedure was for purposes of expediting the disposal of small claims to give parties an avenue for faster resolution of less complex matters that had bogged down our judicial system and allow the other courts dedicate more time to the complex disputes. Simplification must never equate to compromised justice processes that do not pay regard to established principles of dispute resolution such as reasoned consideration of evidence.
34. Having failed to consider the appellants documents the learned Adjudicator fell into a legal error.
35. This was not merely a disagreement about the weight to be attached to the invoices; it affected the manner in which the Appellant's case was considered.
D. DISPOSITION
36. For the above stated reasons, I find that the Appellant has established an error of law falling within the limited jurisdiction conferred upon this Court by section 38 of the Small Claims Court Act.
37. The appeal therefore succeeds the decision of the adjudicator is set aside in its entirety and as a consequence I make the following orders;-
:
a. The appeal is allowed.
b. The judgment and consequential orders of the Small Claims Court in SCCOM No. E947 of 2023, delivered on 3 May 2023, are set aside.
c. The matter is remitted to the Small Claims Court for determination afresh by a different Adjudicator, upon the existing record and in accordance with the law.
d). cost to the appellant.
38. It is so ordered.
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