(Being an appeal from the judgment and decree of Hon. V. K. Momanyi Adjudicator delivered on 24 th May 2024 in Milimani Small Claims Court SCCOMM. E3244 of 2024)
1. This appeal arises from a judgment dated 24 th May 2024 and subsequent decree of the Small Claims Court (SCC). In the judgment the court allowed the respondent’s claim for KShs 372,000/= against the appellant for security guard services offered in three separate contracts entered into between the parties between 6 th October 2020 and 12 th April 2021. The sum awarded was the amount that remained for the period when the appellant unilaterally terminated the contracts with the respondent. The court also dismissed the appellant’s counterclaim against the respondent for KShs 171,500/= for lost items at the appellant’s premises, KShs 134,169/= being payment the appellant made for acquiring the services of an alternative security firm on account of the respondent’s breach of the security contract for failing to have guards on duty as per the contract and KShs 162,000/= as set off which the appellant conceded it had not paid to the respondent for services rendered under the contracts for the month of June 2021 and ten days in July 2021. The SCC held that the respondent had proved its claimand awarded it but the appellant had failed to prove its counterclaim and set-off on a balance of probability and dismissed them. The appellant has appealed against the dismissal of its counterclaim and set-off.
2. The six grounds of appeal through the memorandum dated 20 th June 2024 can be summed up as follows:
a. The learned trial magistrate erred in law and in fact by finding that the respondent had proved its case and the appellant had failed to prove its case on a balance of probability against the weight of the evidence which was that the respondent had frustrated the contract by presiding over and occasioning theft and abandoning the appellant’s sites, thereby forcing the appellant to seek alternative services. In the circumstances, the appellant’s actions were a reasonable consequence of the respondent’s frustration of the contract (Grounds 1, 2, 3, 4, 6).
b. The learned trial magistrate erred in law by failing to properly assess the credibility of witnesses, admitting and giving weight to testimony from persons whose credibility was questionable (Ground 5).
3. The appellant therefore prays that the appeal be allowed, the judgment of the SCC be set aside, and the appellant’s memorandum of appeal dated 20 th June 2024 be allowed as prayed. The appellant also prays that the court may make such further orders as are just in the circumstances of the case.
4. The appeal was disposed of by written submissions filed by learned counsels for the parties. The same are considered in the analysis that follows.
5. The appellant raised the following issues for the court’s determination:
a. Whether the respondent proved its claim to warrant an award in its favour.
b. Whether the appellant is entitled to the reliefs sought in the counterclaim including set-off and damages.
c. Whether the respondent’s witness statements dated 8 th May 2024 should be expunged from the court record.
6. There are some distinctive features of the SCC that are worth bearing in mind when drafting an appeal to the court. First the court is presided over by an Adjudicator and not a magistrate. Unless that basic distinction is made, parties are wont to treat proceedings before the SCC as though they were before a magistrate’s court. There are good reasons for that distinction which are set out in the subsequent paragraphs in this judgment.
7. Second, an appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. This issue was dealt with by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) as follows:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
8. From this decision, it bears remembering that invoking factual errors in an appeal based on points of law only may cause the same to be struck off the record. All the same, this court has to consider only the points of law arising from the grounds set out above.
9. It is a well-established principle that where an appellate court’s jurisdiction is confined to points of law, the court must resist the temptation to interfere with the trial court’s findings of fact and confine itself to issues of law unless it is plainly clear that the decision is bad in law. This position was stated, for instance, by the Court of Appeal in M’Riungu v. Republic [1983] KLR 455, where it was held that:
“where a right of appeal is confined to question of law, 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 fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
10. Therefore, in the present appeal, where the SCC appropriately dealt with the evidence, this court has no right to interfere with the findings based thereon unless it is shown that the SCC considered matters it should not have considered or failed to consider matters it should have considered or looking at the entire decision, it is perverse, in other words unless this court finds that no reasonable tribunal could have reached the decision made by the SCC (see the case cited by learned counsel for the respondent of Stanley N Muriithi & another v Bernard Munene Ithiga [2016] KECA 821 (KLR) .
11. One more important feature of the SCC to bear in mind while considering the appeal is that the SCC Act exempts the Small Claims 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. 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 supplied). This means the Adjudicator has the discretion to admit any evidence which may help establish whether or not the claim is proved. For me, this provision further limits the jurisdiction of the High Court to issues of law only.
12. The issue of considering the facts before the trial court is further limited by the procedure applicable before the SCC, which is unlike the procedure before the magistrates’ courts. Section 3 of the SCC Act, on the guiding principles of the court, provides inter alia that the court shall be guided by the principles of judicial authority prescribed under Article 159(2) of the Constitution, and without prejudice to the same, the Court shall adopt such procedures as the Court deems appropriate to ensure fairness of process and simplicity of procedure (emphasis supplied). The fairness of the process is further reinforced under Part IV, which is the substantive part that deals with the procedure before the court. Section 17 of the Act, which falls under that part provides that:
S. 17. Subject to this Act and Rules, the Court shall have control of its own procedure in the determination of claims before it and, in the exercise of that control, the Court shall have regard to the principles of natural justice.
13. Therefore, according to me, the principles of natural justice rather than the technical procedural rules under the CPR take centre stage in a hearing before the SCC. In the case of Justice Amraphael Mbogholi Msagha v. Chief Justice of the Republic of Kenya & 7 Others Nairobi HCMCA No. 1062 of 2004; [2006] 2 KLR 553; [2006] eKLR , the Court, in discussing the rules of natural justice, cited De Smith and Brazier, Constitutional and Administrative Law 6 th Edition (Penguin United Kingdom: 1989) (pages 557-558), which states:
“The content of natural justice is therefore flexible and variable. All that is fundamentally demanded of the decision maker is that his decision in its own context be made with due regard for the affected parties’ interests and accordingly be reached without bias and after giving the party or parties a chance to put his or their case....”
14. Indeed, the technicality of procedure and strict rules of evidence as applied in the magistrates’ court were excluded so that the Adjudicator could achieve one of the main objectives of the court, which is provided under section 34 of the Act, on expeditious disposal of cases with quite onerous provisions that:
S. 34 (1) All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day to day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.
(2) Judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing.
(3) The Court may only adjourn the hearing of any matter under exceptional and unforeseen circumstances which shall be recorded and be limited to a maximum of three adjournments.
15. With the foregoing enunciation of the law in mind, this court will now briefly consider the cases that were before the SCC by both parties. The facts and proceedings before the SCC are well summarized in the court’s judgment and I do not need to rehash them.
16. It is common ground that the parties entered into three separate contracts for the provision of guard security services by the appellant at the respondent’s three premises as follows
a. Main offices (Viken) Third City along Ruiru Bypass. The contract was to run for one year from 7 th October 2020 to 7 th October 2021. 2 security guards to be deployed on site at the cost of KShs 18,000/= per guard per month.
b. Mlolongo building. The contract was for two years, to run from 22 nd February 2021 to 22 nd February 2023. 3 security guards to be deployed on site at the cost of KShs 18,000/= per guard.
c. Pipeline and Ruiru. The contract was to run for two years from 12 th April 2021 to 12 April 2023. A total of 7 guards were to be deployed at the cost of KShs 18,000/= per guard per month.
17. The respondent’s case was presented in the statement of claim dated 21 st March 2024, reply to the response to statement of claim and counterclaim dated 3 rd May 2024, witness statements and testimonies of CW 1, Julius Mose Getanda, a director of the respondent, CW 4, Reuben Mulinga Onchweri, a manager with the respondent and CW 2, Moseti Ondara Nyangaresi and CW 3, Wilbert Onguso Osoro security guards employed by the respondent as well as exhibits produced at the hearing. The respondent’s case was that it executed its part of the contracts by deploying the guards as per the contracts to the said sites and carried out the said services diligently and satisfactorily until 10 th July 2021 when the appellant unilaterally terminated the agreements without any justifiable cause or notice. Subsequently, the respondent raised three invoices totaling KShs. 372,000/- on account of outstanding arrears for the month of June and the ten (10) days worked in July 2021, for settlement by the appellant. The appellant had failed to settle the same.
18. Further, that alleged security breaches at the appellant’s sites were reported to and investigated by police who did not find that any crime had been committed by the respondent’s guards. Further, the respondent averred that the appellants directed the respondent not to conduct any further investigations in the incidents since the matter was internal. Additionally, the respndent stated that the appellant terminated the contracts without notice and handing over by the respondent was done to Mr. Nchore of Pride Kings Security as directed by the appellant’s management.
19. The appellant’s case on the other hand was contained in its statement of response, counterclaim and set-off dated 8 th April 2024, witness statements and testimony of Peter Kibui, its head of security and administration together with the documents produced. The appellant’s case was that the respondent breached its obligations by constructively terminating the contracts without the requisite three months’ notices to the appellant by abandoning the sites. Further, that in the course of execution of the contracts the respondent failed to pay its security guards deployed to the sites, condoned security breaches at the sites involving theft by the guards deployed and failed to address specific incidents raised by the appellant and thereby failed to provide security as required under the contracts thereby compromising the appellant’s security. The appellant further stated that the security breaches cost it KShs 171,000/= in lost items namely 38 trappers, 2 sets of scaffolds and BRC wires. Further that the appellant brought these issues to the attention of the respondent but the respondent failed to address them effectively. Follow-up meetings to address the issues did not help and on 10 th July 2021, the respondents’ guards absconded duty from all the sites thereby forcing the appellant to seek alternative security services at a cost of KShs 134,169/=.
20. It was the appellant’s case further that the appellant settled all the requisite invoices presented by the respondent save for invoices amounting to KShs It denied terminating the contracts and contended that 90,000/= for the month of June 2021 and for the ten days for the month of July 2021. It was the appellant’s contention that one of theb invoices presented by the respondent as exhibit covered the entire month of July 2021 when in fact the security guard services were rendered for only ten days in that month.
21. Upon considering each party’s case, the SCC found the issues for determination to be:
a. Whether the respondents’ witnesses’ statements dated 8 th May 2024 were for expunging from the court record.
b. Whether the respondent had proved its claim on a balance of probabilities.
c. Whether the appellant had proved its counterclaim and set-off to the required standard.
22. After setting out the cases as above, the learned Adjudicator proceeded to consider each of the issues, made an evaluation of the evidence and the law applicable and rendered her decision thereon.
23. My view, therefore, is that the responsibility of this court when considering an appeal from the SCC is to consider the legality and reasonableness of the decision of the learned Adjudicator. If this court is satisfied that the SCC has made a reasonable evaluation of the facts and properly considered and applied the law, then it will not interfere with its findings and determination. The converse would also be true. That is where the law was not properly considered and/or applied, or where the decision does not seem reasonable from the facts before the court, then this court will interfere. Given the provisions of the SCC Act, excluding to a large extent the strict provisions of the law of evidence and the technicalities of the CPR, I would find that the standard of reasonableness would be that of a reasonably informed person properly comprehending the facts presented.
24. The appeal is based on the grounds that the learned Adjudicator failed to take into account the evidence by the appellant’s witness. Failure by a trial court to take into account material evidence presented by a party is an issue of law. The appellate court may interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which the trial court’s findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] KECA 707 (KLR) .
25. The question is , c onsidering the evidence tendered before the SCC, can this court find that the learned Adjudicator made findings that were not supported by the evidence on record, which justifies this court’s interference with the decision?
26. The issues for determination as set out by the appellant and the ensuing submissions by learned counsel are to the effect 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) . I have not seen anywhere in the submissions where learned counsel points out the issues of law that the learned Adjudicator erred on. The submissions as laid out are on the same issues and on the same lines that were before the SCC However, that is not correct because, as has been stated above under section 38 of the Small Claims Court Act (Cap. 10A) Laws of Kenya, this court does not proceed with the appeal by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters under section 78 of the Civil Procedure Act on appeals emanating from the magistrates’ courts.
27. The issue of law that arises from the grounds of appeal herein is that the decision of the learned Adjudicator was against the weight of the evidence. The appellant contends that the learned Adjudicator failed to properly assess the credibility of the respondents’ witnesses, admitting evidence and giving weight to testimony from person’s whose credibility was questionable. Learned counsel for the appellant submits that the evidence tendered by the respondents’ witnesses was all fabricated and ought to have been expunged from the record of the SCC. That issue was ably considered by the SCC which arrived at the decision that the witness statements did not contain perjured evidence and so the same could not be expunged from the court record.
28. Learned counsel for the respondent supports the findings and decision of the learned Adjudicator that the respondent had proved its claim while the appellant had failed to prove its counterclaim and set-off. He submits that the SCC correctly found that the respondent proved on a balance of probability that the appellant owed the respondent KShs 372,000/= on account of unpaid dues for the security services rendered for the month of June 2021 and 10 days in July 2021.
29. Whether or not to expunge a witness’s statement goes to the credibility of that witness’ evidence and its reliability. The issue of the credibility of a witness is an issue of fact and has to be left to the trial court’s determination as was held in the case of Hahn v Singh [1985] KECA 129 (KLR) where the Court of Appeal, Kneller, JA held that:
“On appeal, of course, before coming to a different conclusion on the typed evidence this court should be satisfied that the advantages is not sufficient to explain or justify his conclusion: Lord Thankerton in Watt or Thomas v Thomas, [1947] AC 484; especially if is based on a straight conflict of primary fact between witnesses, where credibility is crucial, for then an appeal court can hardly ever interfere. Lord Bridge in Whitehouse v Jordan, [1981] 1 WLR 246, 269.
Whether or not Pinto signed the constable’s written statement of liability for the repairs to the Mercedes on the understanding it was limited to Kshs 600 is a primary fact where credibility is crucial and in the straight conflict between the appellant and Pinto on this the judge believed Pinto and I am satisfied that the advantage he had in seeing and hearing them, together with Kerangu and Constable Macharia, are sufficient to explain or justify his conclusion though I am in some doubt that Kshs 600 would have been sufficient to cover the cost of the repairs to the damage in 1980.”
30. In this case, the conflict was in the evidence of the respondent’s witnesses who said that they were on duty and worked well as per the security services contracts and that of the appellant’s witness who alleged otherwise. The SCC had the advantage of taking the evidence witnesses of both sides and so was better placed to assess their credibility. I find no reason to interfere with the learned Adjudicator’s finding that the respondents’ witnesses were credible.
31. In this matter, the SCC was satisfied that the respondent had proved its case against the appellant on a balance of probability and allowed the claim to the tune of KShs 372,000/= but found that the claim for general damages had not been established and this was dismissed. On the part of the appellant, the SCC found that the counterclaim and set off had not been proved and dismissed the same.
32. I have considered the evidence tendered by both parties as set out above as well as the judgment of the SCC and it is apparent that the learned Adjudicator considered the pleadings, the evidence and the testimonies of parties and evaluated of both oral and documentary evidence. The court also gave reasons for its decision and I do find that the complaint that the court did not give due consideration to the appellant’s evidence is not merited.
33. I find that there was no error of law as would entitle this court to overturn the decision of the SCC.
34. From the foregoing analysis, it is apparent that the judgment of the learned Adjudicator allowing the respondent’s claim and dismissing the counterclaim and set-off by the appellant is sustained.
35. Consequently, I find the appeal has no merit, and it is dismissed with costs to the respondent.
36. Orders accordingly.
37. Delivered, dated, and signed on the Virtual Platform, Microsoft Teams, this 8 th day of June 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Wairimu (Ms) for the Appellant.
N/A for the Respondent.
Ummu h/b for Amina: Court Assistant.
ANDAYI W.F.
JUDGE
HCCA No. E744 of 202411/breach of contract-services rendered or not
1. This appeal arises from a judgment dated 24 th May 2024 and subsequent decree of the Small Claims Court (SCC). In the judgment the court allowed the respondent’s claim for KShs 372,000/= against the appellant for security guard services offered in three separate contracts entered into between the parties between 6 th October 2020 and 12 th April 2021. The sum awarded was the amount that remained for the period when the appellant unilaterally terminated the contracts with the respondent. The court also dismissed the appellant’s counterclaim against the respondent for KShs 171,500/= for lost items at the appellant’s premises, KShs 134,169/= being payment the appellant made for acquiring the services of an alternative security firm on account of the respondent’s breach of the security contract for failing to have guards on duty as per the contract and KShs 162,000/= as set off which the appellant conceded it had not paid to the respondent for services rendered under the contracts for the month of June 2021 and ten days in July 2021. The SCC held that the respondent had proved its claimand awarded it but the appellant had failed to prove its counterclaim and set-off on a balance of probability and dismissed them. The appellant has appealed against the dismissal of its counterclaim and set-off.
2. The six grounds of appeal through the memorandum dated 20 th June 2024 can be summed up as follows:
a. The learned trial magistrate erred in law and in fact by finding that the respondent had proved its case and the appellant had failed to prove its case on a balance of probability against the weight of the evidence which was that the respondent had frustrated the contract by presiding over and occasioning theft and abandoning the appellant’s sites, thereby forcing the appellant to seek alternative services. In the circumstances, the appellant’s actions were a reasonable consequence of the respondent’s frustration of the contract (Grounds 1, 2, 3, 4, 6).
b. The learned trial magistrate erred in law by failing to properly assess the credibility of witnesses, admitting and giving weight to testimony from persons whose credibility was questionable (Ground 5).
3. The appellant therefore prays that the appeal be allowed, the judgment of the SCC be set aside, and the appellant’s memorandum of appeal dated 20 th June 2024 be allowed as prayed. The appellant also prays that the court may make such further orders as are just in the circumstances of the case.
4. The appeal was disposed of by written submissions filed by learned counsels for the parties. The same are considered in the analysis that follows.
5. The appellant raised the following issues for the court’s determination:
a. Whether the respondent proved its claim to warrant an award in its favour.
b. Whether the appellant is entitled to the reliefs sought in the counterclaim including set-off and damages.
c. Whether the respondent’s witness statements dated 8 th May 2024 should be expunged from the court record.
6. There are some distinctive features of the SCC that are worth bearing in mind when drafting an appeal to the court. First the court is presided over by an Adjudicator and not a magistrate. Unless that basic distinction is made, parties are wont to treat proceedings before the SCC as though they were before a magistrate’s court. There are good reasons for that distinction which are set out in the subsequent paragraphs in this judgment.
7. Second, an appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. This issue was dealt with by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) as follows:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
8. From this decision, it bears remembering that invoking factual errors in an appeal based on points of law only may cause the same to be struck off the record. All the same, this court has to consider only the points of law arising from the grounds set out above.
9. It is a well-established principle that where an appellate court’s jurisdiction is confined to points of law, the court must resist the temptation to interfere with the trial court’s findings of fact and confine itself to issues of law unless it is plainly clear that the decision is bad in law. This position was stated, for instance, by the Court of Appeal in M’Riungu v. Republic [1983] KLR 455, where it was held that:
“where a right of appeal is confined to question of law, 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 fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
10. Therefore, in the present appeal, where the SCC appropriately dealt with the evidence, this court has no right to interfere with the findings based thereon unless it is shown that the SCC considered matters it should not have considered or failed to consider matters it should have considered or looking at the entire decision, it is perverse, in other words unless this court finds that no reasonable tribunal could have reached the decision made by the SCC (see the case cited by learned counsel for the respondent of Stanley N Muriithi & another v Bernard Munene Ithiga [2016] KECA 821 (KLR) .
11. One more important feature of the SCC to bear in mind while considering the appeal is that the SCC Act exempts the Small Claims 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. 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 supplied). This means the Adjudicator has the discretion to admit any evidence which may help establish whether or not the claim is proved. For me, this provision further limits the jurisdiction of the High Court to issues of law only.
12. The issue of considering the facts before the trial court is further limited by the procedure applicable before the SCC, which is unlike the procedure before the magistrates’ courts. Section 3 of the SCC Act, on the guiding principles of the court, provides inter alia that the court shall be guided by the principles of judicial authority prescribed under Article 159(2) of the Constitution, and without prejudice to the same, the Court shall adopt such procedures as the Court deems appropriate to ensure fairness of process and simplicity of procedure (emphasis supplied). The fairness of the process is further reinforced under Part IV, which is the substantive part that deals with the procedure before the court. Section 17 of the Act, which falls under that part provides that:
S. 17. Subject to this Act and Rules, the Court shall have control of its own procedure in the determination of claims before it and, in the exercise of that control, the Court shall have regard to the principles of natural justice.
13. Therefore, according to me, the principles of natural justice rather than the technical procedural rules under the CPR take centre stage in a hearing before the SCC. In the case of Justice Amraphael Mbogholi Msagha v. Chief Justice of the Republic of Kenya & 7 Others Nairobi HCMCA No. 1062 of 2004; [2006] 2 KLR 553; [2006] eKLR , the Court, in discussing the rules of natural justice, cited De Smith and Brazier, Constitutional and Administrative Law 6 th Edition (Penguin United Kingdom: 1989) (pages 557-558), which states:
“The content of natural justice is therefore flexible and variable. All that is fundamentally demanded of the decision maker is that his decision in its own context be made with due regard for the affected parties’ interests and accordingly be reached without bias and after giving the party or parties a chance to put his or their case....”
14. Indeed, the technicality of procedure and strict rules of evidence as applied in the magistrates’ court were excluded so that the Adjudicator could achieve one of the main objectives of the court, which is provided under section 34 of the Act, on expeditious disposal of cases with quite onerous provisions that:
S. 34 (1) All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day to day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.
(2) Judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing.
(3) The Court may only adjourn the hearing of any matter under exceptional and unforeseen circumstances which shall be recorded and be limited to a maximum of three adjournments.
15. With the foregoing enunciation of the law in mind, this court will now briefly consider the cases that were before the SCC by both parties. The facts and proceedings before the SCC are well summarized in the court’s judgment and I do not need to rehash them.
16. It is common ground that the parties entered into three separate contracts for the provision of guard security services by the appellant at the respondent’s three premises as follows
a. Main offices (Viken) Third City along Ruiru Bypass. The contract was to run for one year from 7 th October 2020 to 7 th October 2021. 2 security guards to be deployed on site at the cost of KShs 18,000/= per guard per month.
b. Mlolongo building. The contract was for two years, to run from 22 nd February 2021 to 22 nd February 2023. 3 security guards to be deployed on site at the cost of KShs 18,000/= per guard.
c. Pipeline and Ruiru. The contract was to run for two years from 12 th April 2021 to 12 April 2023. A total of 7 guards were to be deployed at the cost of KShs 18,000/= per guard per month.
17. The respondent’s case was presented in the statement of claim dated 21 st March 2024, reply to the response to statement of claim and counterclaim dated 3 rd May 2024, witness statements and testimonies of CW 1, Julius Mose Getanda, a director of the respondent, CW 4, Reuben Mulinga Onchweri, a manager with the respondent and CW 2, Moseti Ondara Nyangaresi and CW 3, Wilbert Onguso Osoro security guards employed by the respondent as well as exhibits produced at the hearing. The respondent’s case was that it executed its part of the contracts by deploying the guards as per the contracts to the said sites and carried out the said services diligently and satisfactorily until 10 th July 2021 when the appellant unilaterally terminated the agreements without any justifiable cause or notice. Subsequently, the respondent raised three invoices totaling KShs. 372,000/- on account of outstanding arrears for the month of June and the ten (10) days worked in July 2021, for settlement by the appellant. The appellant had failed to settle the same.
18. Further, that alleged security breaches at the appellant’s sites were reported to and investigated by police who did not find that any crime had been committed by the respondent’s guards. Further, the respondent averred that the appellants directed the respondent not to conduct any further investigations in the incidents since the matter was internal. Additionally, the respndent stated that the appellant terminated the contracts without notice and handing over by the respondent was done to Mr. Nchore of Pride Kings Security as directed by the appellant’s management.
19. The appellant’s case on the other hand was contained in its statement of response, counterclaim and set-off dated 8 th April 2024, witness statements and testimony of Peter Kibui, its head of security and administration together with the documents produced. The appellant’s case was that the respondent breached its obligations by constructively terminating the contracts without the requisite three months’ notices to the appellant by abandoning the sites. Further, that in the course of execution of the contracts the respondent failed to pay its security guards deployed to the sites, condoned security breaches at the sites involving theft by the guards deployed and failed to address specific incidents raised by the appellant and thereby failed to provide security as required under the contracts thereby compromising the appellant’s security. The appellant further stated that the security breaches cost it KShs 171,000/= in lost items namely 38 trappers, 2 sets of scaffolds and BRC wires. Further that the appellant brought these issues to the attention of the respondent but the respondent failed to address them effectively. Follow-up meetings to address the issues did not help and on 10 th July 2021, the respondents’ guards absconded duty from all the sites thereby forcing the appellant to seek alternative security services at a cost of KShs 134,169/=.
20. It was the appellant’s case further that the appellant settled all the requisite invoices presented by the respondent save for invoices amounting to KShs It denied terminating the contracts and contended that 90,000/= for the month of June 2021 and for the ten days for the month of July 2021. It was the appellant’s contention that one of theb invoices presented by the respondent as exhibit covered the entire month of July 2021 when in fact the security guard services were rendered for only ten days in that month.
21. Upon considering each party’s case, the SCC found the issues for determination to be:
a. Whether the respondents’ witnesses’ statements dated 8 th May 2024 were for expunging from the court record.
b. Whether the respondent had proved its claim on a balance of probabilities.
c. Whether the appellant had proved its counterclaim and set-off to the required standard.
22. After setting out the cases as above, the learned Adjudicator proceeded to consider each of the issues, made an evaluation of the evidence and the law applicable and rendered her decision thereon.
23. My view, therefore, is that the responsibility of this court when considering an appeal from the SCC is to consider the legality and reasonableness of the decision of the learned Adjudicator. If this court is satisfied that the SCC has made a reasonable evaluation of the facts and properly considered and applied the law, then it will not interfere with its findings and determination. The converse would also be true. That is where the law was not properly considered and/or applied, or where the decision does not seem reasonable from the facts before the court, then this court will interfere. Given the provisions of the SCC Act, excluding to a large extent the strict provisions of the law of evidence and the technicalities of the CPR, I would find that the standard of reasonableness would be that of a reasonably informed person properly comprehending the facts presented.
24. The appeal is based on the grounds that the learned Adjudicator failed to take into account the evidence by the appellant’s witness. Failure by a trial court to take into account material evidence presented by a party is an issue of law. The appellate court may interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which the trial court’s findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] KECA 707 (KLR) .
25. The question is , c onsidering the evidence tendered before the SCC, can this court find that the learned Adjudicator made findings that were not supported by the evidence on record, which justifies this court’s interference with the decision?
26. The issues for determination as set out by the appellant and the ensuing submissions by learned counsel are to the effect 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) . I have not seen anywhere in the submissions where learned counsel points out the issues of law that the learned Adjudicator erred on. The submissions as laid out are on the same issues and on the same lines that were before the SCC However, that is not correct because, as has been stated above under section 38 of the Small Claims Court Act (Cap. 10A) Laws of Kenya, this court does not proceed with the appeal by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters under section 78 of the Civil Procedure Act on appeals emanating from the magistrates’ courts.
27. The issue of law that arises from the grounds of appeal herein is that the decision of the learned Adjudicator was against the weight of the evidence. The appellant contends that the learned Adjudicator failed to properly assess the credibility of the respondents’ witnesses, admitting evidence and giving weight to testimony from person’s whose credibility was questionable. Learned counsel for the appellant submits that the evidence tendered by the respondents’ witnesses was all fabricated and ought to have been expunged from the record of the SCC. That issue was ably considered by the SCC which arrived at the decision that the witness statements did not contain perjured evidence and so the same could not be expunged from the court record.
28. Learned counsel for the respondent supports the findings and decision of the learned Adjudicator that the respondent had proved its claim while the appellant had failed to prove its counterclaim and set-off. He submits that the SCC correctly found that the respondent proved on a balance of probability that the appellant owed the respondent KShs 372,000/= on account of unpaid dues for the security services rendered for the month of June 2021 and 10 days in July 2021.
29. Whether or not to expunge a witness’s statement goes to the credibility of that witness’ evidence and its reliability. The issue of the credibility of a witness is an issue of fact and has to be left to the trial court’s determination as was held in the case of Hahn v Singh [1985] KECA 129 (KLR) where the Court of Appeal, Kneller, JA held that:
“On appeal, of course, before coming to a different conclusion on the typed evidence this court should be satisfied that the advantages is not sufficient to explain or justify his conclusion: Lord Thankerton in Watt or Thomas v Thomas, [1947] AC 484; especially if is based on a straight conflict of primary fact between witnesses, where credibility is crucial, for then an appeal court can hardly ever interfere. Lord Bridge in Whitehouse v Jordan, [1981] 1 WLR 246, 269.
Whether or not Pinto signed the constable’s written statement of liability for the repairs to the Mercedes on the understanding it was limited to Kshs 600 is a primary fact where credibility is crucial and in the straight conflict between the appellant and Pinto on this the judge believed Pinto and I am satisfied that the advantage he had in seeing and hearing them, together with Kerangu and Constable Macharia, are sufficient to explain or justify his conclusion though I am in some doubt that Kshs 600 would have been sufficient to cover the cost of the repairs to the damage in 1980.”
30. In this case, the conflict was in the evidence of the respondent’s witnesses who said that they were on duty and worked well as per the security services contracts and that of the appellant’s witness who alleged otherwise. The SCC had the advantage of taking the evidence witnesses of both sides and so was better placed to assess their credibility. I find no reason to interfere with the learned Adjudicator’s finding that the respondents’ witnesses were credible.
31. In this matter, the SCC was satisfied that the respondent had proved its case against the appellant on a balance of probability and allowed the claim to the tune of KShs 372,000/= but found that the claim for general damages had not been established and this was dismissed. On the part of the appellant, the SCC found that the counterclaim and set off had not been proved and dismissed the same.
32. I have considered the evidence tendered by both parties as set out above as well as the judgment of the SCC and it is apparent that the learned Adjudicator considered the pleadings, the evidence and the testimonies of parties and evaluated of both oral and documentary evidence. The court also gave reasons for its decision and I do find that the complaint that the court did not give due consideration to the appellant’s evidence is not merited.
33. I find that there was no error of law as would entitle this court to overturn the decision of the SCC.
34. From the foregoing analysis, it is apparent that the judgment of the learned Adjudicator allowing the respondent’s claim and dismissing the counterclaim and set-off by the appellant is sustained.
35. Consequently, I find the appeal has no merit, and it is dismissed with costs to the respondent.
36. Orders accordingly.
37. Delivered, dated, and signed on the Virtual Platform, Microsoft Teams, this 8 th day of June 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Wairimu (Ms) for the Appellant.
N/A for the Respondent.
Ummu h/b for Amina: Court Assistant.
ANDAYI W.F.
JUDGE
HCCA No. E744 of 202411/breach of contract-services rendered or not