Background:
1. This Appellant herein filed a claim at the Small Claims Court seeking payment of a balance of Kshs.270,000 plus interested. The parties had a lease agreement and the Respondent vacated the premises but still owed the Appellant Kshs.270,000.
Ruling appealed against.
2. The Trial Court matter was mentioned on 23rd August 2022 where a consent was recorded. Both parties were represented by Advocates and the case was closed. The terms of the consent were that the Respondent pay the Appellant Kshs.50,000 by 23rd August 2022 and the remaining sum of Kshs.220,000 to be paid on or before 22nd September 2022. In default of the terms the Appellant was at liberty to execute.
3. From the proceedings, two applications were shortly filed were filed shortly thereafter. The one dated 4th November 2023 was dismissed on 16th December 2023 for non-attendance. The second application is dated 21st September 2022 by the Respondent seeking the Court’s intervention to order Panari Centre to release office furniture, equipment and goods belonging to Respondent’s herein. The Respondent also sought the intervention of the OCS Nyayo stadium for purposes of enforcing the orders. The Application was based on grounds that having complied with the terms of the consent; the Appellant was now required to release the Respondent’s furniture.
4. The Trial Court rendered a ruling on 28th October 2022 and declined to set aside the consent entered by the parties. The Respondent was required to immediately release the equipment, furniture and goods held in distress for rent. The OCS Nyayo stadium was to provide security for purpose of enforcing the orders.
5. I must mention that the ruling above was not typed but an order was extracted to that effect.
The Appeal.
6. The Appellants herein aggrieved by the above ruining preferred an appeal to this Court seeking to set aside the judgement of the small claims court, the grounds of appeal in the memorandum of appeal dated 4th November 2022 are as follows:
(i) The Learned Magistrate erred in law and in fact by holding that the issue of release of goods was part of the term of the consent.
(ii) The Learned Magistrate erred in law and in fact by not considering the documents submitted by the Appellant.
(iii) The Learned Magistrate erred in law and in fact by ruling on the issue of rent without jurisdiction.
(iv) The Learned Magistrate erred in law and in fact by totally disregarding to take submissions of the Appellant into account.
The Submissions:
7. The Appeal proceeded by way of written submission.
Analysis of the issue for determination.
8. The High Court is duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses. From the above analysis, the main issue for determination is whether the Lower erred in its findings, answering this question will settle the dispute.
9. The Ruling appealed against refers to an application filed by the Respondent herein seeking orders of release of office furniture, equipment and goods belonging to the Respondent and order requiring the OCS Nyayo stadium to provide security for purposes of enforcing the order. The Trial Court allowed the application which led to this appeal.
10. In my view, the Appellant in this Appeal must demonstrate why it would take an issue to releasing the good after rent has been settled by the Respondent. From the claim at the Trial Court there was a lease agreement and the Respondent had vacated the premises but still owed some rent. All the Appellant prayed for is to be paid Kshs.270,000 plus interest. From this background there was a tenancy relation and the Respondent had vacated the premises but he still owed a balance.
11. The Trial Court declined to set aside the consent order and proceeded to order release the equipment held by the Appellant herein. In my view, the Appellant must demonstrate with evidence why it is entitled to the prayers sought.
12. From the memorandum of appeal, the Appellant faults the Trial Court for not considering the documents they submitted. The Appellant has not made reference or produced the documents referred to, therefore there is no way this court can interrogate the prayer which is not based on any documents so this ground fails.
13. The Law is clear on under circumstances a consent can be set aside, the Appellant’s application to set aside the consent was dismissed for non-attendance but in this Appeal the Appellant is still bringing up the issue of the consent being aside. In my view the Appellant has not brought out their dispute well and appear to have mixed up issues.
14. The Appellant further faults the trial court for holding that the issue of release of goods was a term of the consent. In my view, the Appellant is required to demonstrate to Court, if there existed any other dispute between the parties. From my reading of the claim at the Trial Court, the two parties had a lease agreement and the Respondent has a balance of Kshs.270,000. It was the Appellant’s case that the Respondent had vacated the premises but still owed the Appellant the money. The Appellant did not elaborate on this prayer neither did they file written submission to expound on their position therefore the Court is unable to determine this ground with the facts and evidence before it. This ground equally fails.
15. The Appellant faults the trial court for ruling on the issue of rent without jurisdiction, from the reading of the reading of the ruling I don’t find that the Trial Court made a finding on rent, in any event the parties had filed a consent on the amount owed as a result of a lease agreement. This ground equally fails.
16. The Appellant has failed to discharge the burden of proof as required under the Evidence Act. The Court of Appeal in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR) on the issue of burden of proof held as follows:
“Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
17. I therefore find the Appeal without merit and I dismiss it. The Respondent is granted costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 24th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
No appearance by the Appellant.
Anyonje Advocate for the Respondent.
Michael - Court Assistant.
1. This Appellant herein filed a claim at the Small Claims Court seeking payment of a balance of Kshs.270,000 plus interested. The parties had a lease agreement and the Respondent vacated the premises but still owed the Appellant Kshs.270,000.
Ruling appealed against.
2. The Trial Court matter was mentioned on 23rd August 2022 where a consent was recorded. Both parties were represented by Advocates and the case was closed. The terms of the consent were that the Respondent pay the Appellant Kshs.50,000 by 23rd August 2022 and the remaining sum of Kshs.220,000 to be paid on or before 22nd September 2022. In default of the terms the Appellant was at liberty to execute.
3. From the proceedings, two applications were shortly filed were filed shortly thereafter. The one dated 4th November 2023 was dismissed on 16th December 2023 for non-attendance. The second application is dated 21st September 2022 by the Respondent seeking the Court’s intervention to order Panari Centre to release office furniture, equipment and goods belonging to Respondent’s herein. The Respondent also sought the intervention of the OCS Nyayo stadium for purposes of enforcing the orders. The Application was based on grounds that having complied with the terms of the consent; the Appellant was now required to release the Respondent’s furniture.
4. The Trial Court rendered a ruling on 28th October 2022 and declined to set aside the consent entered by the parties. The Respondent was required to immediately release the equipment, furniture and goods held in distress for rent. The OCS Nyayo stadium was to provide security for purpose of enforcing the orders.
5. I must mention that the ruling above was not typed but an order was extracted to that effect.
The Appeal.
6. The Appellants herein aggrieved by the above ruining preferred an appeal to this Court seeking to set aside the judgement of the small claims court, the grounds of appeal in the memorandum of appeal dated 4th November 2022 are as follows:
(i) The Learned Magistrate erred in law and in fact by holding that the issue of release of goods was part of the term of the consent.
(ii) The Learned Magistrate erred in law and in fact by not considering the documents submitted by the Appellant.
(iii) The Learned Magistrate erred in law and in fact by ruling on the issue of rent without jurisdiction.
(iv) The Learned Magistrate erred in law and in fact by totally disregarding to take submissions of the Appellant into account.
The Submissions:
7. The Appeal proceeded by way of written submission.
Analysis of the issue for determination.
8. The High Court is duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses. From the above analysis, the main issue for determination is whether the Lower erred in its findings, answering this question will settle the dispute.
9. The Ruling appealed against refers to an application filed by the Respondent herein seeking orders of release of office furniture, equipment and goods belonging to the Respondent and order requiring the OCS Nyayo stadium to provide security for purposes of enforcing the order. The Trial Court allowed the application which led to this appeal.
10. In my view, the Appellant in this Appeal must demonstrate why it would take an issue to releasing the good after rent has been settled by the Respondent. From the claim at the Trial Court there was a lease agreement and the Respondent had vacated the premises but still owed some rent. All the Appellant prayed for is to be paid Kshs.270,000 plus interest. From this background there was a tenancy relation and the Respondent had vacated the premises but he still owed a balance.
11. The Trial Court declined to set aside the consent order and proceeded to order release the equipment held by the Appellant herein. In my view, the Appellant must demonstrate with evidence why it is entitled to the prayers sought.
12. From the memorandum of appeal, the Appellant faults the Trial Court for not considering the documents they submitted. The Appellant has not made reference or produced the documents referred to, therefore there is no way this court can interrogate the prayer which is not based on any documents so this ground fails.
13. The Law is clear on under circumstances a consent can be set aside, the Appellant’s application to set aside the consent was dismissed for non-attendance but in this Appeal the Appellant is still bringing up the issue of the consent being aside. In my view the Appellant has not brought out their dispute well and appear to have mixed up issues.
14. The Appellant further faults the trial court for holding that the issue of release of goods was a term of the consent. In my view, the Appellant is required to demonstrate to Court, if there existed any other dispute between the parties. From my reading of the claim at the Trial Court, the two parties had a lease agreement and the Respondent has a balance of Kshs.270,000. It was the Appellant’s case that the Respondent had vacated the premises but still owed the Appellant the money. The Appellant did not elaborate on this prayer neither did they file written submission to expound on their position therefore the Court is unable to determine this ground with the facts and evidence before it. This ground equally fails.
15. The Appellant faults the trial court for ruling on the issue of rent without jurisdiction, from the reading of the reading of the ruling I don’t find that the Trial Court made a finding on rent, in any event the parties had filed a consent on the amount owed as a result of a lease agreement. This ground equally fails.
16. The Appellant has failed to discharge the burden of proof as required under the Evidence Act. The Court of Appeal in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR) on the issue of burden of proof held as follows:
“Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
17. I therefore find the Appeal without merit and I dismiss it. The Respondent is granted costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 24th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
No appearance by the Appellant.
Anyonje Advocate for the Respondent.
Michael - Court Assistant.