(Appeal from the Judgment dated 22/11/2024 delivered in Nairobi SCCCOMM/E3662 of 2024 by Hon. C.A. Okumu-Resident Magistrate/Adjudicator)
1. This Appeal arises from the said Small Claims Court case in which the Respondent (as the Claimant therein) obtained Judgment against the Appellant for an amount of Kshs 700,000/-, plus costs and interest.
2. The background of the case is that by the Statement of Claim dated 26/03/2024, filed through Messrs Wanyaga & Njaramba & Co. Advocates , the Respondent pleaded that on or about 29/09/2022, she paid the Appellant the said sum of Kshs 700,000/- for supply of building materials, but despite such receipt, the Appellant failed to supply the materials. The Respondent then basically reiterated the same account in her Witness Statement. She also filed a List of documents containing a copy of a bank withdrawal slip dated 29/11/2022, and her Advocates’ demand letter dated 5/12/2023.
3. The Appellant, in her Response dated 30/04/2024, filed through Messrs J.M. Kimathi & Partners Advocates LLP , denied receipt from the Respondent of any funds for supply of building materials or at all, and pleaded that it is in fact the Respondent who owed her the sum of Kshs 700,000/- on account of a gentleman’s (oral) agreement whereof the Appellant was to procure the award of a tender for supply by the Respondent of hardcore materials to the Nairobi City County, proceeds whereof the Appellant and the Respondent were to then share equally. She pleaded that she indeed secured the tender sometime in 2019 in favour of the Respondent who was paid by the City County but refused to give the Appellant her share of the profits, which she estimated at Kshs 700,000/-. As such, she introduced a Counterclaim against the Respondent for the same amount.
4. In her Witness Statement, the Appellant elaborated that on or about 28/11/2018, she came across a tender advertisement by the Nairobi City County for supply of hardcore material for renovation works at the Dandora dumpsite, with a closing date 11/12/2018. She stated that as she did not have enough capital, she approached the Respondent and convinced her to apply for the tender, assuring the Respondent that she was in a position to “push” for the same to be awarded to the Respondent and, as such, they agreed that in the event the tender was so awarded, the Respondent would pay her a consideration of half the profit realized therefrom. She stated that the Respondent was, indeed, awarded the tender, and sometime in early 2021 or thereabouts, she learned that the Respondent had been paid for the same, that she approached the Respondent for her share of the profits, which the Respondent estimated at Kshs. 1,400,000/-, but the Respondent requested her to wait for her to finish other projects pending elsewhere. She claimed that on 4/10/2021, she sent an SMS text to the Respondent requesting for her share of Kshs. 700,000/ but the Respondent, in her response, turned wild and declined to share the profits as agreed claiming that the Appellant did nothing pertaining to the tender. The Appellant thus registered her surprise over the claim that the Respondent paid her a sum of Kshs 700,000/- to supply building materials, urging that payment of such a colossal sum of money would have not have been paid to her in cash but by way of either cheque or bank transfer and the evidence thereof would have been readily available. She contended that the alleged withdrawal receipt produced by the Respondent is not proof of any payment. She also denied any knowledge of, or ever meeting one Anthony Muema named by the Respondent as a witness. By her bundle of documents, she produced a copy of the tender document, and copies of printouts of SMS texts she exchanged with the Respondent on 14/10/2021.
5. At the trial, the Respondent (as the Claimant), Faith Nziva Kitele , adopted her Witness Statement and produced the said bank slip dated 29/11/2022, indicating a withdrawal of Kshs 700,000/- she claimed to have made from her bank account. In cross-examination, she agreed that the bank account was in the name of a different entity but which she stated, was her company. She however agreed that the slip did not contain the name of the bank, or the branch, or even the date of withdrawal. She claimed that she had messages from the Appellant confirming receipt of the money, but she did not produce the same.
6. The Respondent called the said Anthony Mremu Munyao , who, too, adopted his Witness Statement. In cross-examination, he admitted that he was in the same motor vehicle with the Respondent when the Respondent testified but claimed that the same was immaterial because the vehicle was moving. He then testified that he knew the Appellant and that saw her at Sidian Bank , Mlolongo Branch on 29/11/2022 when she was given an envelope by the Respondent containing money. He conceded that he did not know how much was in the envelope but claimed that the Respondent told him it was Kshs 700,000/-. In re-examination, he claimed that prior to the visit to the bank, the Respondent had called and asked him to accompany her there to give money to the Appellant.
7. The Appellant, Phyllis Munyoki , also adopted her Witness Statement. In cross-examination, she testified that she supplies office equipment and stationery and denied ever being in building materials supply business. She agreed that the SMS text messages produced showed that herself and the Respondent were conducting business together but which turned sour. She testified that when conducting business with the Respondent, she would “facilitate” and they would later “calculate”. She agreed that the text messages reveal that the Respondent asked her for a refund on 2/06/2022, and also that the Respondent promised that after the Appellant had made the refund, the Respondent would pay her (Appellant) some appreciation. She however insisted that the refund and appreciation being discussed in the texts was for a different and separate transaction from the one in Court. In re-examination, she pointed out that while she made her demand on 14/11/2021, it was more than a year later on 29/11/2022 that the Respondent claimed that she gave her Kshs 700,000/-. She maintained that the Respondent’s demand was a counter-demand to her own claim.
8. By his Judgment delivered on 22/11/2024, the Adjudicator entered Judgment in favour of the Respondent for the said sum Kshs 700,000/- as prayed, with costs, and dismissed the Appellant’s Counterclaim, but with no order on costs. There was however no mention of any award of interest. In the Judgment, the Adjudicator’s findings were as follows:
“21. The Court finds that from the Whatsapp communication relied on the Claimant advanced the Respondent Kshs 700,000 and the Respondent counter claim of Kshs 700,000 cannot be substantiated as the Claimants Witness 2 said he was told by the Claimant she gave money to the Respondent.
22. The Court hereby enters judgment in favour of the Claimant as against the Respondent for Kshs 700,000, costs of the Claim whereas the Respondent's counterclaim of Kshs 700,000 is dismissed with no orders as to costs.”
9. Aggrieved by the decision, the Appellant instituted this Appeal by way of the Memorandum dated 19/12/2024. The 4 grounds listed are as follows:
“1. THAT the Learned trial Magistrate/Adjudicator erred in law in failing to properly analyze the evidence placed before her and thereby reached the wrong conclusions.
2 THAT the Learned trial Magistrate/Adjudicator erred in law in finding that the Respondent had proved her case as against the Appellant.
3. THAT the Learned trial Magistrate/Adjudicator erred in law in failing to find that the Appellant had proved her Counterclaim as against the Respondent
4. THAT the Learned trial Magistrate/Adjudicator erred in law in failing to dismiss the Respondent's claim as against the Appellant.”
10. The Appeal was canvassed by way of written Submissions. The Appellant’s Submissions is dated 23/04/2026 while the Respondent’s is dated 27/04/2026.
Appellant’s Submissions
11. Counsel for the Appellant, after recounting the case and the evidence presented, appreciated that under Section 38 of the Small Claims Act , only “ matters of law ” can be appealed to the High Court but contended that the grounds raised qualify as “ matters of law ”. He faulted the Adjudicator for quickly jumping into the conclusion he made in favour of the Respondent, urging that the Respondent did not prove the existence of the alleged agreement/contract for supply of building materials, and that contrary to the Adjudicator’s findings, the Respondent never produced any WhatsApp communication. He pointed out that what was on record were SMS text messages which were in fact produced by the Appellant, not the Respondent, which, he urged, were a follow-up by the Appellant on her profits, but maintained that the contents of the texts were not in respect to the demands made by the Respondent in this case, but a different separate transaction. Counsel pointed out that while the SMS texts are dated 14/10/2021, it was more than a year later on 29/11/2022 that the Respondent claimed that she gave her Kshs 700,000/-. He thus faulted the Adjudicator for failing to properly analyze the evidence tendered. He also pointed out the discrepancy that in the Statement of Claim, the Respondent pleaded to have paid the money on 29/09/2022 while in her oral testimony, she gave the conflicting date of 29/11/2022, and the Statement was never amended. Counsel also attacked the testimony of the Respondent’s witness, whom he pointed out, admitted that he was in the same motor vehicle with the Respondent when the Respondent testified
Respondent’s Submissions
12. On his part, Counsel for the Appellant simply took the position that the Appeal offends the provisions of Section 38 of the Small Claims Act , as the grounds raises therein are matters of facts when Section 38 only allows appeals from the Small Claims Court on “ matters of law .
Determination
13. The issues for determination in this Appeal can be summarized as follows:
i) Whether this Appeal raises matters of facts thus breaching the provisions of Section 38 of the Small Claims Court which only allows Appeals brought on points of law.
ii) If not, whether the trial Court erred in entering Judgment against the Appellant and dismissing her Counterclaim .”.
14. As correctly pointed out by both Counsel, this being an Appeal from a decision of the Small Claims Court , the same can only be entertained on “matters of law”. This is the import of Section 38 of the Small Claims Court Act , which provides as follows:
“38. Appeals
(1) A person aggrieved by the decision or an order of the Court may Appeal against that decision or order to the High Court on matters of law .
(2) An Appeal from any decision or order referred to in subsection (1) shall be final.
15. In appreciating the above limitation, the Appellant’s Counsel cited the Court of Appeal case of Stanley N Muriithi & another v Bernard Munene Ithiga [2016] KECA 821 (KLR) , in which, while dealing with a second Appeal, which is also ordinarily allowed only on points of law, and thus similar to that contemplated under Section 38 aforesaid, the Court held that:
“.............We are conscious of our limited jurisdiction when dealing with a second appeal. Our reading of Section 72(1) of the Civil Procedure Act, Chapter 21, Laws of Kenya , which provides for the circumstances when a second appeal shall lie from the appellate decrees of the High Court, indicates that the appeal must be on matters of law.
In Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR (Civil Appeal No. 127 of 2007) Onyango Otieno, J.A. put it succinctly in the following words:
“In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.”
We hasten to observe, however, that failure on the part of the first appellate court to re-evaluate the evidence tendered before the trial court and as a result, arriving at the wrong conclusion is a point of law. We note that indeed, learned counsel for the appellants did submit that the learned Judge failed to consider most of the documents that were produced in evidence, and therefore arrived at the wrong conclusion. That is actually the gist of this appeal, as can be deciphered from the four grounds of appeal which we have reproduced elsewhere in this judgment. The question we must therefore answer is whether indeed the learned Judge in her duty to re-evaluate the evidence before her did reconsider all the evidence adduced before the trial court, or let some of the important evidence slip away and be left by the wayside. If we find that some evidence was indeed disregarded, then the next issue for our determination will be whether the evidence in question would have affected the outcome of the appeal.”
16. In light of the above, insofar as the Appeal is based on the alleged failure on the part of the Adjudicator to re-evaluate the evidence tendered before him, and as a result, arrived at the wrong conclusion, I find that the Appeal properly falls within the limitation of “ on matters of law ” . The Appeal is therefore properly before this Court.
17. In this case, the Respondent (Claimant), Faith Nziva Kitele , produced the bank slip dated 29/11/2022, indicating a withdrawal of Kshs 700,000/- which she claimed to have made from her bank account and handed over to the Appellant in cash. The Appellant having denied this allegation, and there being no acknowledgment of any kind from her of receipt of the money, it was incumbent upon the Respondent to prove that the Appellant indeed received the money. The Respondent however conceded that the bank account appearing on the slip revealed that the bank account was not in her name, but in the name of a different entity, which she alleged, was her company, but she did not produce any proof thereof. She also conceded that the slip did not contain the name of any bank, or branch, or even the date of withdrawal. Although she also claimed that she had messages from the Appellant confirming receipt of the money, she did not produce the same in evidence. Although her witness, one Anthony Mremu Munyao , claimed that he witnessed the Respondent handing over an envelope containing money to the Appellant at Sidian Bank, Mlolongo Branch on 29/11/2022, the witness conceded that he did not know the amount of money that was in the envelope, nor the currency, and disclosed that it is the Respondent who told him that it was Kshs 700,000/-. The witness’s testimony was also watered down by his admission that he was in the same motor vehicle with the Respondent when the Respondent testified.
18. Clearly therefore, the claim that the Respondent gave the Appellant the money in the manner alleged remained unsubstantiated, and the Adjudicator was right in dismissing the claim.
19. On the part of the Appellant, Phyllis Munyoki , she, too, bore the burden of proving her Counterclaim. She agreed that the SMS text messages produced by the Respondent (Claimant) showed that the two were doing business together but which turned sour. She also admitted doing business with the Respondent in which, she would “facilitate and they were to later “calculate”, whatever that meant. She agreed that the text messages indicate that the Respondent asked her for a refund on 2/06/2022, and also that the Respondent promised that after she (Appellant) had made the refund, she (Respondent) would pay her (Appellant) some “appreciation” money. She however insisted that the refund and “appreciation” being discussed was for a different transaction, separate from the one in Court. I tend to agree with her since as she correctly pointed out, while the Respondent’s claim herein is that she gave the Appellant the money on 29/11/2022, the text messages produced and which the Adjudicator relied in allowing the Counterclaim, were exchanged on 14/10/2021, one year earlier. The two transactions could not therefore have been one and the same.
20. Further, while the SMS texts reveal that indeed, the Appellant may have promised to “assist” the Respondent, most probably “by influence peddling”, to procure the tender, and she did look forward to a 50:50 sharing out of the profits therefrom, indicated to have been Kshs 1,400,000/-, there is no sharing agreement produced, nor evidence of any commitment or promise by the Respondent to share any money with the Appellant. All the Respondent stated in the SMS text was that “ I didn’t mention any figures. I told u we will sit and see what I will give you ”. Then, in refuting the 50:50 share demand, she registered her surprise by conveying her shock at the demand for equal sharing of the profits wondering “what role the Respondent played in the project to justify payment of such a high percentage. The exact words she used were “ what work did you do in that project that can earn that amount. Yours was introducing me to Kyalo …….” . To prove that the two had indeed been engaged in other separate money deals and apart from the one under litigation herein, she stated that “ my plan was for you to refund the cash I gave you then after that I get some cash for appreciation ”. With this state of affairs, it is clear that the Counterclaim, too, remained unsubstantiated. In allowing the Counterclaim therefore, the learned Adjudicator clearly misconstrued the evidence presented, and therefore arrived at the wrong conclusion.
21. In any event, the Appellant having evidently been reluctant to explain the exact manner in which she “assisted” the Respondent to procure the tender, it remains a reasonable suspicion that such “assistance” must have been by way of “influence peddling” which may indeed have then irregularly skewed the award of the tender towards the Respondent. If so, then this was a clear illegal contract, which this Court cannot enforce.
22. Looking at the evidence on record, it is clear, as correctly found by the Adjudicator, that the Respondent (Claimant) did not prove her claim, but neither did the Appellant also prove her Counterclaim. Both claims, not just the Appellants, ought to have therefore been dismissed.
Final Orders
23. The upshot of my findings above is that this Appeal partially succeeds, to the following extent:
i) Entry of Judgment in favour of the Respondent for the sum of Kshs 700,000/- in Nairobi SCCCOMM/E3662 of 2024 against the Appellant plus costs, is hereby set aside, and is substituted with an order dismissing that Claim/suit in its entirety.
ii) Dismissal of the Appellant’s Counterclaim for the sum of Kshs 700,000/- in Nairobi SCCCOMM/E3662 of 2023 2024 is however upheld.
iii) There shall be no order on costs on the main Claim, the Counterclaim, and also on this Appeal. Each party shall accordingly bear her own costs of all those proceedings.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14 TH DAY OF AUGUST 2026
……………..……..
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Mr. Wambua for the Appellant
Ms. Muhoro for the Respondent
Court Assistant: Amos Boso
Milimani HCCOMMA/E387/2024
1. This Appeal arises from the said Small Claims Court case in which the Respondent (as the Claimant therein) obtained Judgment against the Appellant for an amount of Kshs 700,000/-, plus costs and interest.
2. The background of the case is that by the Statement of Claim dated 26/03/2024, filed through Messrs Wanyaga & Njaramba & Co. Advocates , the Respondent pleaded that on or about 29/09/2022, she paid the Appellant the said sum of Kshs 700,000/- for supply of building materials, but despite such receipt, the Appellant failed to supply the materials. The Respondent then basically reiterated the same account in her Witness Statement. She also filed a List of documents containing a copy of a bank withdrawal slip dated 29/11/2022, and her Advocates’ demand letter dated 5/12/2023.
3. The Appellant, in her Response dated 30/04/2024, filed through Messrs J.M. Kimathi & Partners Advocates LLP , denied receipt from the Respondent of any funds for supply of building materials or at all, and pleaded that it is in fact the Respondent who owed her the sum of Kshs 700,000/- on account of a gentleman’s (oral) agreement whereof the Appellant was to procure the award of a tender for supply by the Respondent of hardcore materials to the Nairobi City County, proceeds whereof the Appellant and the Respondent were to then share equally. She pleaded that she indeed secured the tender sometime in 2019 in favour of the Respondent who was paid by the City County but refused to give the Appellant her share of the profits, which she estimated at Kshs 700,000/-. As such, she introduced a Counterclaim against the Respondent for the same amount.
4. In her Witness Statement, the Appellant elaborated that on or about 28/11/2018, she came across a tender advertisement by the Nairobi City County for supply of hardcore material for renovation works at the Dandora dumpsite, with a closing date 11/12/2018. She stated that as she did not have enough capital, she approached the Respondent and convinced her to apply for the tender, assuring the Respondent that she was in a position to “push” for the same to be awarded to the Respondent and, as such, they agreed that in the event the tender was so awarded, the Respondent would pay her a consideration of half the profit realized therefrom. She stated that the Respondent was, indeed, awarded the tender, and sometime in early 2021 or thereabouts, she learned that the Respondent had been paid for the same, that she approached the Respondent for her share of the profits, which the Respondent estimated at Kshs. 1,400,000/-, but the Respondent requested her to wait for her to finish other projects pending elsewhere. She claimed that on 4/10/2021, she sent an SMS text to the Respondent requesting for her share of Kshs. 700,000/ but the Respondent, in her response, turned wild and declined to share the profits as agreed claiming that the Appellant did nothing pertaining to the tender. The Appellant thus registered her surprise over the claim that the Respondent paid her a sum of Kshs 700,000/- to supply building materials, urging that payment of such a colossal sum of money would have not have been paid to her in cash but by way of either cheque or bank transfer and the evidence thereof would have been readily available. She contended that the alleged withdrawal receipt produced by the Respondent is not proof of any payment. She also denied any knowledge of, or ever meeting one Anthony Muema named by the Respondent as a witness. By her bundle of documents, she produced a copy of the tender document, and copies of printouts of SMS texts she exchanged with the Respondent on 14/10/2021.
5. At the trial, the Respondent (as the Claimant), Faith Nziva Kitele , adopted her Witness Statement and produced the said bank slip dated 29/11/2022, indicating a withdrawal of Kshs 700,000/- she claimed to have made from her bank account. In cross-examination, she agreed that the bank account was in the name of a different entity but which she stated, was her company. She however agreed that the slip did not contain the name of the bank, or the branch, or even the date of withdrawal. She claimed that she had messages from the Appellant confirming receipt of the money, but she did not produce the same.
6. The Respondent called the said Anthony Mremu Munyao , who, too, adopted his Witness Statement. In cross-examination, he admitted that he was in the same motor vehicle with the Respondent when the Respondent testified but claimed that the same was immaterial because the vehicle was moving. He then testified that he knew the Appellant and that saw her at Sidian Bank , Mlolongo Branch on 29/11/2022 when she was given an envelope by the Respondent containing money. He conceded that he did not know how much was in the envelope but claimed that the Respondent told him it was Kshs 700,000/-. In re-examination, he claimed that prior to the visit to the bank, the Respondent had called and asked him to accompany her there to give money to the Appellant.
7. The Appellant, Phyllis Munyoki , also adopted her Witness Statement. In cross-examination, she testified that she supplies office equipment and stationery and denied ever being in building materials supply business. She agreed that the SMS text messages produced showed that herself and the Respondent were conducting business together but which turned sour. She testified that when conducting business with the Respondent, she would “facilitate” and they would later “calculate”. She agreed that the text messages reveal that the Respondent asked her for a refund on 2/06/2022, and also that the Respondent promised that after the Appellant had made the refund, the Respondent would pay her (Appellant) some appreciation. She however insisted that the refund and appreciation being discussed in the texts was for a different and separate transaction from the one in Court. In re-examination, she pointed out that while she made her demand on 14/11/2021, it was more than a year later on 29/11/2022 that the Respondent claimed that she gave her Kshs 700,000/-. She maintained that the Respondent’s demand was a counter-demand to her own claim.
8. By his Judgment delivered on 22/11/2024, the Adjudicator entered Judgment in favour of the Respondent for the said sum Kshs 700,000/- as prayed, with costs, and dismissed the Appellant’s Counterclaim, but with no order on costs. There was however no mention of any award of interest. In the Judgment, the Adjudicator’s findings were as follows:
“21. The Court finds that from the Whatsapp communication relied on the Claimant advanced the Respondent Kshs 700,000 and the Respondent counter claim of Kshs 700,000 cannot be substantiated as the Claimants Witness 2 said he was told by the Claimant she gave money to the Respondent.
22. The Court hereby enters judgment in favour of the Claimant as against the Respondent for Kshs 700,000, costs of the Claim whereas the Respondent's counterclaim of Kshs 700,000 is dismissed with no orders as to costs.”
9. Aggrieved by the decision, the Appellant instituted this Appeal by way of the Memorandum dated 19/12/2024. The 4 grounds listed are as follows:
“1. THAT the Learned trial Magistrate/Adjudicator erred in law in failing to properly analyze the evidence placed before her and thereby reached the wrong conclusions.
2 THAT the Learned trial Magistrate/Adjudicator erred in law in finding that the Respondent had proved her case as against the Appellant.
3. THAT the Learned trial Magistrate/Adjudicator erred in law in failing to find that the Appellant had proved her Counterclaim as against the Respondent
4. THAT the Learned trial Magistrate/Adjudicator erred in law in failing to dismiss the Respondent's claim as against the Appellant.”
10. The Appeal was canvassed by way of written Submissions. The Appellant’s Submissions is dated 23/04/2026 while the Respondent’s is dated 27/04/2026.
Appellant’s Submissions
11. Counsel for the Appellant, after recounting the case and the evidence presented, appreciated that under Section 38 of the Small Claims Act , only “ matters of law ” can be appealed to the High Court but contended that the grounds raised qualify as “ matters of law ”. He faulted the Adjudicator for quickly jumping into the conclusion he made in favour of the Respondent, urging that the Respondent did not prove the existence of the alleged agreement/contract for supply of building materials, and that contrary to the Adjudicator’s findings, the Respondent never produced any WhatsApp communication. He pointed out that what was on record were SMS text messages which were in fact produced by the Appellant, not the Respondent, which, he urged, were a follow-up by the Appellant on her profits, but maintained that the contents of the texts were not in respect to the demands made by the Respondent in this case, but a different separate transaction. Counsel pointed out that while the SMS texts are dated 14/10/2021, it was more than a year later on 29/11/2022 that the Respondent claimed that she gave her Kshs 700,000/-. He thus faulted the Adjudicator for failing to properly analyze the evidence tendered. He also pointed out the discrepancy that in the Statement of Claim, the Respondent pleaded to have paid the money on 29/09/2022 while in her oral testimony, she gave the conflicting date of 29/11/2022, and the Statement was never amended. Counsel also attacked the testimony of the Respondent’s witness, whom he pointed out, admitted that he was in the same motor vehicle with the Respondent when the Respondent testified
Respondent’s Submissions
12. On his part, Counsel for the Appellant simply took the position that the Appeal offends the provisions of Section 38 of the Small Claims Act , as the grounds raises therein are matters of facts when Section 38 only allows appeals from the Small Claims Court on “ matters of law .
Determination
13. The issues for determination in this Appeal can be summarized as follows:
i) Whether this Appeal raises matters of facts thus breaching the provisions of Section 38 of the Small Claims Court which only allows Appeals brought on points of law.
ii) If not, whether the trial Court erred in entering Judgment against the Appellant and dismissing her Counterclaim .”.
14. As correctly pointed out by both Counsel, this being an Appeal from a decision of the Small Claims Court , the same can only be entertained on “matters of law”. This is the import of Section 38 of the Small Claims Court Act , which provides as follows:
“38. Appeals
(1) A person aggrieved by the decision or an order of the Court may Appeal against that decision or order to the High Court on matters of law .
(2) An Appeal from any decision or order referred to in subsection (1) shall be final.
15. In appreciating the above limitation, the Appellant’s Counsel cited the Court of Appeal case of Stanley N Muriithi & another v Bernard Munene Ithiga [2016] KECA 821 (KLR) , in which, while dealing with a second Appeal, which is also ordinarily allowed only on points of law, and thus similar to that contemplated under Section 38 aforesaid, the Court held that:
“.............We are conscious of our limited jurisdiction when dealing with a second appeal. Our reading of Section 72(1) of the Civil Procedure Act, Chapter 21, Laws of Kenya , which provides for the circumstances when a second appeal shall lie from the appellate decrees of the High Court, indicates that the appeal must be on matters of law.
In Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR (Civil Appeal No. 127 of 2007) Onyango Otieno, J.A. put it succinctly in the following words:
“In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.”
We hasten to observe, however, that failure on the part of the first appellate court to re-evaluate the evidence tendered before the trial court and as a result, arriving at the wrong conclusion is a point of law. We note that indeed, learned counsel for the appellants did submit that the learned Judge failed to consider most of the documents that were produced in evidence, and therefore arrived at the wrong conclusion. That is actually the gist of this appeal, as can be deciphered from the four grounds of appeal which we have reproduced elsewhere in this judgment. The question we must therefore answer is whether indeed the learned Judge in her duty to re-evaluate the evidence before her did reconsider all the evidence adduced before the trial court, or let some of the important evidence slip away and be left by the wayside. If we find that some evidence was indeed disregarded, then the next issue for our determination will be whether the evidence in question would have affected the outcome of the appeal.”
16. In light of the above, insofar as the Appeal is based on the alleged failure on the part of the Adjudicator to re-evaluate the evidence tendered before him, and as a result, arrived at the wrong conclusion, I find that the Appeal properly falls within the limitation of “ on matters of law ” . The Appeal is therefore properly before this Court.
17. In this case, the Respondent (Claimant), Faith Nziva Kitele , produced the bank slip dated 29/11/2022, indicating a withdrawal of Kshs 700,000/- which she claimed to have made from her bank account and handed over to the Appellant in cash. The Appellant having denied this allegation, and there being no acknowledgment of any kind from her of receipt of the money, it was incumbent upon the Respondent to prove that the Appellant indeed received the money. The Respondent however conceded that the bank account appearing on the slip revealed that the bank account was not in her name, but in the name of a different entity, which she alleged, was her company, but she did not produce any proof thereof. She also conceded that the slip did not contain the name of any bank, or branch, or even the date of withdrawal. Although she also claimed that she had messages from the Appellant confirming receipt of the money, she did not produce the same in evidence. Although her witness, one Anthony Mremu Munyao , claimed that he witnessed the Respondent handing over an envelope containing money to the Appellant at Sidian Bank, Mlolongo Branch on 29/11/2022, the witness conceded that he did not know the amount of money that was in the envelope, nor the currency, and disclosed that it is the Respondent who told him that it was Kshs 700,000/-. The witness’s testimony was also watered down by his admission that he was in the same motor vehicle with the Respondent when the Respondent testified.
18. Clearly therefore, the claim that the Respondent gave the Appellant the money in the manner alleged remained unsubstantiated, and the Adjudicator was right in dismissing the claim.
19. On the part of the Appellant, Phyllis Munyoki , she, too, bore the burden of proving her Counterclaim. She agreed that the SMS text messages produced by the Respondent (Claimant) showed that the two were doing business together but which turned sour. She also admitted doing business with the Respondent in which, she would “facilitate and they were to later “calculate”, whatever that meant. She agreed that the text messages indicate that the Respondent asked her for a refund on 2/06/2022, and also that the Respondent promised that after she (Appellant) had made the refund, she (Respondent) would pay her (Appellant) some “appreciation” money. She however insisted that the refund and “appreciation” being discussed was for a different transaction, separate from the one in Court. I tend to agree with her since as she correctly pointed out, while the Respondent’s claim herein is that she gave the Appellant the money on 29/11/2022, the text messages produced and which the Adjudicator relied in allowing the Counterclaim, were exchanged on 14/10/2021, one year earlier. The two transactions could not therefore have been one and the same.
20. Further, while the SMS texts reveal that indeed, the Appellant may have promised to “assist” the Respondent, most probably “by influence peddling”, to procure the tender, and she did look forward to a 50:50 sharing out of the profits therefrom, indicated to have been Kshs 1,400,000/-, there is no sharing agreement produced, nor evidence of any commitment or promise by the Respondent to share any money with the Appellant. All the Respondent stated in the SMS text was that “ I didn’t mention any figures. I told u we will sit and see what I will give you ”. Then, in refuting the 50:50 share demand, she registered her surprise by conveying her shock at the demand for equal sharing of the profits wondering “what role the Respondent played in the project to justify payment of such a high percentage. The exact words she used were “ what work did you do in that project that can earn that amount. Yours was introducing me to Kyalo …….” . To prove that the two had indeed been engaged in other separate money deals and apart from the one under litigation herein, she stated that “ my plan was for you to refund the cash I gave you then after that I get some cash for appreciation ”. With this state of affairs, it is clear that the Counterclaim, too, remained unsubstantiated. In allowing the Counterclaim therefore, the learned Adjudicator clearly misconstrued the evidence presented, and therefore arrived at the wrong conclusion.
21. In any event, the Appellant having evidently been reluctant to explain the exact manner in which she “assisted” the Respondent to procure the tender, it remains a reasonable suspicion that such “assistance” must have been by way of “influence peddling” which may indeed have then irregularly skewed the award of the tender towards the Respondent. If so, then this was a clear illegal contract, which this Court cannot enforce.
22. Looking at the evidence on record, it is clear, as correctly found by the Adjudicator, that the Respondent (Claimant) did not prove her claim, but neither did the Appellant also prove her Counterclaim. Both claims, not just the Appellants, ought to have therefore been dismissed.
Final Orders
23. The upshot of my findings above is that this Appeal partially succeeds, to the following extent:
i) Entry of Judgment in favour of the Respondent for the sum of Kshs 700,000/- in Nairobi SCCCOMM/E3662 of 2024 against the Appellant plus costs, is hereby set aside, and is substituted with an order dismissing that Claim/suit in its entirety.
ii) Dismissal of the Appellant’s Counterclaim for the sum of Kshs 700,000/- in Nairobi SCCCOMM/E3662 of 2023 2024 is however upheld.
iii) There shall be no order on costs on the main Claim, the Counterclaim, and also on this Appeal. Each party shall accordingly bear her own costs of all those proceedings.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14 TH DAY OF AUGUST 2026
……………..……..
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Mr. Wambua for the Appellant
Ms. Muhoro for the Respondent
Court Assistant: Amos Boso
Milimani HCCOMMA/E387/2024