INTRODUCTION
1. This is an appeal by Ralph Edward Nzwii Nguma (hereinafter "the Appellant") against the judgment and decree of Hon. J. Asiago, Resident Magistrate, delivered on 15th April 2025 in SCCCOMM/E3693/2024 at the Milimani Small Claims Court. The learned Magistrate entered judgment in favour of Mulei Nzila trading as Prime Automotive (hereinafter "the Respondent") against the Appellant for the principal sum of Kshs. 172,000.
BACKGROUND
2. At the relevant time, the Respondent operated a garage providing motor vehicle repair services under the business name Prime Automotive. On various dates in 2023 and 2024, the Appellant brought four motor vehicles to the Respondent's garage for an assortment of repair and maintenance services. That much is common ground between the parties. The specific vehicles repaired, the quality of the work performed, and the amounts owing therefrom are all in dispute.
3. On reading the whole record, this Court notes that the suit was dismissed at the trial court for failure of appearance on the hearing scheduled for 1st October 2024. This led to two applications for reinstatement of suit, dated 1st October 2024 and 2nd October 2024, and the responses thereto. The latter application was ultimately allowed and the suit proceeded. One of the arguments presented in that application has survived to this appeal, as is evident on the face of the Memorandum of Appeal. This Court will accordingly consider not only the pleadings and evidence in support thereof but also the content of that application, the responses filed, and their bearing on this appeal.
a. Pleadings at the Trial Court
i. Statement of Claim dated 4th April 2024
4. The Respondent, as Claimant at the trial court, stated that his claim was for Kshs. 172,000 as the outstanding sum due from the Appellant, who had failed to pay for repair services contrary to and in breach of contract. The Respondent stated that on various dates in 2023 the Appellant took his cars to the garage for an assortment of services, and that despite several reminders and service of a demand and notice of intention to sue, the Appellant had failed and neglected to pay the total service and repair fees amounting to Kshs. 172,000. The Respondent sought judgment in that sum, costs, interest, and such other relief as the court would deem just and fit.
a. (b) Response to Statement of Claim and Counterclaim dated 17th April 2024
5. The Appellant admitted taking a Toyota Pickup, a Nissan Patrol, a Mitsubishi Pajero, and a Toyota Sienta to the Respondent's garage. He clarified that he only owed Kshs. 62,300 and Kshs. 21,000 for repairs of the Toyota Hilux and the Sienta respectively. He stated that the Respondent failed to repair the Nissan Patrol and Mitsubishi Pajero as agreed.
6. In respect of the Nissan Patrol, the Appellant stated that since it was taken to the Respondent's garage for repairs it had been grounded, and that he returned it for further repairs, but it only became worse; since the last time the Respondent returned the Nissan Patrol, it had not been in use and at the time of the suit it was completely grounded. As regards the Mitsubishi Pajero, the Appellant averred that the Respondent failed to correct the "Check Engine" light despite assurances that he had done so, and that the vehicle kept moving to the left, thereby putting the driver's life at risk.
7. In his Counterclaim, the Appellant stated that he claimed Kshs. 450,500 from the Respondent based on frustration of the contract for delivery of rental services. He stated that on 4th July 2023 he paid the Respondent a deposit of Kshs. 420,000 to prepare a lease agreement and give him tenantable property, which the Respondent failed to do. He further stated that he expended Kshs. 30,500 to workers to cut grass and make the property tenantable, to remedy the Respondent's breach. The Appellant concluded that he was entitled to a set-off of Kshs. 367,200, as he had given the Respondent Kshs. 450,500 while he only owed Kshs. 83,300. He further averred that he did not admit that the trial court had jurisdiction.
a. (c) Response to Counterclaim/Set-off dated 12th July 2024
8. The Respondent stated that he did not owe the Appellant any money as claimed in the Counterclaim. He stated that the Appellant's counterclaim concerned a different subject matter that did not fall within the jurisdiction of the Small Claims Court, as it related to a landlord-tenant relationship and alleged rent arrears. He requested that the Counterclaim/Set-off be dismissed with costs.
9. From the record, this was not the only Response to the Counterclaim and Set-off that the Respondent filed. Following dismissal of the suit for the Respondent's failure to appear at the hearing scheduled for 1st October 2024, he filed two applications for reinstatement, dated 1st October 2024 and 2nd October 2024. In the latter application, the Respondent sought not only reinstatement of the suit but also a change of advocates from Odero & Partners Advocates to Odhiambo Owino & Company Advocates. It appears the Respondent felt that the suit had been dismissed due to his first advocate's indolence. The new advocates on record sought to supplement gaps they felt risked undermining the Respondent's case, and to that end filed another Response to the Counterclaim dated 4th March 2025.
a. (d) Response to Counterclaim dated 4th March 2025
10. The Respondent stated that the Appellant was his tenant and that the Kshs. 420,000 was sent on account of rent. He stated that the Kshs. 30,000 was not paid to him by the Appellant. He stated that the Appellant occupied the premises until March 2024, when he vacated without settling the rent arrears but later issued a cheque which he instructed the bank not to honour. The Respondent stated that the tenancy issue was a separate business not related to the primary dispute, and that he intended to file a suit for recovery of rent arrears in the Magistrate's Court. He characterised the Counterclaim and Set-off as unmerited and as a ploy to confuse the court, and concluded that the Appellant had admitted to owing him money which he was yet to settle.
a. Evidence at the Trial Court
i. Respondent's Evidence
11. The Respondent filed two Witness Statements, dated 30th July 2024 and 25th January 2025 respectively.
12. In his first Witness Statement, the Respondent stated that as the proprietor and operator of Prime Automotive garage, the Appellant routinely engaged his services. He stated that on various dates in 2023 and 2024 the Appellant brought cars to the garage for repairs, as summarised in the table below.
Vehicle / Item
Detail
Kshs.
Toyota Hilux KDN 655S - 17 October 2023
Oil filter change
1,800
Fuel filter change
2,500
Oil change
7,000
Cabin filter change
1,500
Air cleaner
2,000
AdBlue 5L (Diesel Exhaust Fluid)
1,500
Tailgate lock repair
3,000
Spacers x4 (for stability)
40,000
Labour
3,000
Sub-total
62,300
Nissan Patrol KAR 462 - 9 November 2023
Injector gasket kit
8,000
Injector supply blades x4
12,000
Heater plug
2,500
Nozzles service & tips x2
11,000
Diesel
11,000
Labour & wiring
15,000
Sub-total
59,500
Mitsubishi Pajero KCR 711N - 20 December 2023
Plugs x6
18,000
Petrol
2,000
Labour
1,000
Sub-total
21,000
Toyota Sienta KCG 902L - 5 January 2024
Paint bumper and wing
11,000
Headlight xenon
15,000
Sub-total
26,000
Nissan Patrol coil / Hilux door light & rider
2,000
Hilux AdBlue 5L (Diesel Exhaust Fluid)
2,000
TOTAL
172,800
13. The Respondent stated that despite fulfilling his obligations under the agreement by repairing the above-mentioned vehicles, the Appellant failed and neglected to honour his obligations, notwithstanding several reminders including a notice of intention to sue.
14. In his second Witness Statement, the Respondent confirmed that he ran a garage called Prime Automotive and that he and the Appellant were cousins. He stated that he had hoped the Appellant would treat his business fairly and pay the dues as promised, but instead the Appellant kept finding excuses and deceived him on several occasions, failing to answer calls or switching off his phone. He averred that he had tried to settle the issue at family level, but this proved unsuccessful as the Appellant constantly changed his position and began accusing him of extortion.
15. The Respondent reiterated the repairs done and the costs thereof, as set out in the table above, and clarified that the Toyota Sienta KCG 902L belonged to a third party but was repaired at the Appellant's behest, as the Appellant had damaged it while backing out of a car wash. He stated that, given the cordial relationship between them at the time of the repairs, he neither demanded a deposit nor charged strict market rates.
16. The Respondent gave a detailed chronological account of communications between the parties from November 2023 to March 2024, including repeated requests for payment, the Appellant's shifting explanations involving transfers, RTGS forms, agents, and cash handovers, and the Appellant's eventual commitment to issue a cheque. The Respondent testified that he was directed to collect cheque number 0220498, drawn on CFC Stanbic Bank Kenya Limited for Kshs. 200,000, which he deposited on the Appellant's instructions. On 11th March 2024, when the Respondent attempted to withdraw the funds, he discovered that the cheque had been cancelled by the drawer, CFC Stanbic Bank Kenya Limited, seemingly at the Appellant's behest. The Respondent concluded that the Appellant's attempt to pay Kshs. 200,000 by cheque was a clear indication that he had delivered vehicles for repair, that the repairs were done, and that he was liable to pay approximately Kshs. 170,000.
a. Respondent's Documents
17. The Respondent produced an Excel breakdown of amounts owing; a Unified Business Permit for Prime Automotive effective from 10th July 2024 to 24th July 2025; copies of text messages evidencing communication on various dates between November 2023 and March 2024; a transaction receipt for the attempted withdrawal of Kshs. 200,000 dated 11th March 2024; an email from Paul Njau of I&M Bank confirming that the cheque had been stopped by the drawer; and a text message dated 13th March 2024 forwarding the Excel breakdown and warning of impending legal action.
a. (b) Appellant's Evidence
18. The Appellant filed two Witness Statements, dated 9th July 2024 and 25th March 2025 respectively.
19. In his first Witness Statement, the Appellant averred that the Respondent's claim of Kshs. 172,000 was false, as no evidence had been adduced in support. He confirmed liability for Kshs. 62,300 and Kshs. 21,000 for the Toyota Hilux and Toyota Sienta respectively. As regards the Nissan Patrol, he stated that instead of addressing the cold-start problem, the Respondent added a red bypass switch which interfered with the heater plugs and ignition module, rendering the vehicle unusable, and that he had to pay Kshs. 100,000 to one Augustine Sanya of Maruti Autotec to resolve the resulting issues. As regards the Mitsubishi Pajero, he stated that the "Check Engine" light persisted and a new fault of the vehicle veering left emerged even after the Respondent's purported repair; a visit to Maruti Autotec revealed that the catalytic converters had been removed, which he attributed to the Respondent, necessitating a further Kshs. 60,000 in repairs.
20. The Appellant further stated that he had sent Kshs. 450,500 to the Respondent as consideration for rental services which the Respondent failed to supply, in that he failed to vacate the premises, prepare a lease agreement, or hand over exclusive possession. He asked for a refund of Kshs. 450,500 or, alternatively, a set-off of Kshs. 367,200.
21. In his second Witness Statement, the Appellant stated that the three undated Excel spreadsheets marked as invoices were fabrications that did not prove he owed Kshs. 172,000, and that they did not resemble the invoices the Respondent had previously issued between 2021 and 2023. He denied the numerous communications alleged in the Respondent's second Witness Statement and stated that he ended the association after the Respondent began doing shoddy work and stealing motor vehicle parts. He reiterated that the Nissan Patrol and Mitsubishi Pajero were not repaired, referring to the Respondent's own text message of 28th February 2024, in which the Respondent indicated a willingness to forgo the amount claimed for the Pajero because the issue was not sorted. He stated that in May 2024 he took the Nissan Patrol to Maruti Autotec for a second opinion, where he was informed that the bypass installed by the Respondent had interfered with the heater, ignition module, and clutch, necessitating a further Kshs. 78,900 in repairs; and that Maruti Autotec had also identified the removal of the two catalytic converters from the Mitsubishi Pajero, requiring a further Kshs. 50,000 for replacements. In total, the Appellant stated that he had spent Kshs. 128,900 on further repairs, making it unfair for him to pay the Kshs. 172,000 demanded.
a. Appellant's Documents
22. The Appellant produced a copy of the RTGS form dated 4th July 2023 for transfer of Kshs. 420,000 to the Respondent's Co-operative Bank account; a copy of Swift Message 103 confirming that transfer; copies of Mpesa confirmations of Kshs. 15,500 and Kshs. 15,000 transferred to one Nzila Itwiku on 19th and 20th June 2023 respectively; a copy of the Respondent's text message of 28th February 2024; two undated invoices from Maruti Autotec for repair of the Nissan Patrol; an undated invoice from Maruti Autotec for repair of the Mitsubishi Pajero; a folio of Mpesa messages evidencing transfers between 27th May 2023 and 16th September 2023; and copies of messages forwarding the Mpesa confirmations to the Respondent.
a. Submissions by the Parties at the Trial Court
23. The Respondent, as Claimant, submitted on four issues: whether the Appellant received services from the Respondent; the amount of consideration payable and whether it had been settled; whether the set-off and counterclaim were merited; and costs. On the question of consideration, the Respondent submitted that as the trusted expert, he was entitled to determine the prices payable, and that the Appellant could not use the argument of improper repair to avoid payment, since payment was not pegged on satisfactory delivery of service, the Appellant had never previously complained of poor repairs, he was not a trained mechanic competent to assess repair quality, and the receipts from Maruti Autotec were neither dated nor stamped. The Respondent relied on Chege v Olembo & another (Civil Appeal 497 of 2018) [2023] KEHC 18115 (KLR) for the proposition that an unsigned invoice cannot be verified as genuine absent testimony from a person who worked at the issuing garage.
24. On the set-off and counterclaim, the Respondent submitted that the Kshs. 420,000 was paid as a three-month deposit while the Appellant had stayed on the premises for eight months, that the Kshs. 30,500 was sent to Nzila Itwiku, the Respondent's brother, in a transaction to which the Respondent was not privy, and that in any event the trial court had no jurisdiction over tenancy disputes.
25. This Court has examined the record and been unable to locate the Appellant's written submissions at the trial court. The only submissions by the Appellant on record are those dated 15th November 2024, filed in respect of the application to reinstate the suit. It appears from paragraph 8 of the Respondent's submissions before this Court that the Appellant filed submissions dated 21st March 2025 at the trial court, which may have been strategically omitted to advance a ground of appeal — an allegation this Court addresses further below. At this stage, it suffices to note that the Appellant's written submissions before the trial court do not form part of the record or supplementary record of appeal.
Judgment of the Trial Court dated 15th April 2025
26. The learned Magistrate found that a contract for repair of motor vehicles existed between the parties. In view of the Appellant's admission at paragraph 3 of his Response to Statement of Claim that he owed Kshs. 62,300 and Kshs. 21,000 for the Toyota Hilux and Sienta respectively, the learned Magistrate entered judgment on admission for Kshs. 83,300.
27. The court then framed three issues for determination. On the first issue — whether the Respondent had proved his case with regard to motor vehicle registration numbers KAR 462 and KCR 711N for Kshs. 59,500 and Kshs. 21,100 respectively — the learned Magistrate found that, by the Appellant's own admission, the vehicles had been taken to the Respondent's garage for repairs, even though those repairs were not to the Appellant's satisfaction. The learned Magistrate held that this discharged the Respondent's burden of proving that he had repaired the vehicles at the alleged costs, and found that the question of quality of service rendered was a separate claim which the Appellant ought to have pursued independently.
28. On the second issue — whether the set-off could be allowed — the learned Magistrate held that this was a matter of landlord-tenant relationship falling outside the jurisdiction conferred on the court by Section 12 of the Small Claims Court Act, distinguishing this matter from Namisi Muhanda v LP Holdings Ltd [Civil Appeal E256 of 2023] [2025] KEHC 393 (KLR) (Commercial and Tax) (23 January 2025), which concerned rent deposits.
29. On the third and final issue, the learned Magistrate awarded costs to the Respondent as the successful party, pursuant to Section 30 of the Small Claims Court Act, to be assessed at the registry. The court entered final judgment for the principal sum of Kshs. 172,000.
THE APPEAL
30. Dissatisfied with the decision of the learned Magistrate, the Appellant lodged this appeal by way of a Memorandum of Appeal dated 6th May 2025, raising nine grounds. Distilled to their essence, the grounds are: that the trial court erred in proceeding on a documents-only basis under Section 30 of the Small Claims Court Act without the genuine agreement of all parties; that it erred in allowing the Respondent to file multiple further statements, responses, and documents after the Appellant had already filed his defence and witness statement; that it erred in disregarding the Appellant's concerns about the propriety of proceedings arising from an altercation between two advocates appearing for the Respondent; that it erred in condemning the Appellant unheard, contrary to the principles of natural justice; that it erred in permitting the Respondent to repeatedly alter his pleadings, creating a trial by ambush; that it applied wrong principles in determining the issues raised; that it ignored the provisions of the Small Claims Court Act and the Constitution; that it ignored the evidence put in by the Appellant; and that in its ruling of 9th April 2025 it compounded these errors by disregarding the counterclaim and set-off, ignoring concerns about forgery in the Respondent's affidavits, disregarding the Appellant's defence of defective performance by erroneously treating it as a separate claim, and wrongly holding that delivery of vehicles to a garage is sufficient proof that the mechanic repaired them.
31. The Appellant prays that this Court allow the appeal, quash or set aside the decision of the learned Magistrate, make its own findings on the law and the facts or, alternatively, refer the matter for hearing before a different adjudicator, and award costs of the appeal and of the trial court proceedings.
SUBMISSIONS ON APPEAL
32. This appeal was disposed of by way of written submissions. The Appellant's submissions are dated 16th March 2026 and the Respondent's submissions are dated 18th May 2026.
Appellant's Submissions
33. The Appellant framed five issues. First, whether the decretal sum of Kshs. 172,000 can lawfully stand where the trial court's own quantified findings total only Kshs. 163,900. The Appellant submitted that the sum of the judgment on admission (Kshs. 83,300) and the amounts found proved for the Nissan Patrol and Mitsubishi Pajero (Kshs. 59,500 and Kshs. 21,100 respectively) totals Kshs. 163,900, not the Kshs. 172,000 awarded. He attributed the discrepancy to a Kshs. 5,000 balance for the Toyota Sienta not admitted, and a further Kshs. 4,000 for other items, on which the trial court made no findings, rendering the decree unsafe and incapable of remedy under Section 99 of the Civil Procedure Act.
34. Second, whether the trial court erred in failing to analyse the Respondent's written admission that the Pajero issue "wasn't sorted" and that Kshs. 21,000 should accordingly be deducted, relying on Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR and Butt v Khan [1981] KLR 349.
35. Third, whether the Respondent strictly proved the contested repair sums, given competing documentary evidence from an independent garage showing substantial rectification costs on both vehicles. The Appellant submitted that the Respondent's invoices merely showed work billed, not competent performance, and that the trial court ignored the Maruti Autotec invoices without giving reasons; he argued that defective performance is a defence to a claim for payment, not a separate cause of action.
36. Fourth, whether the matter was lawfully determined on a documents-only basis under Section 30 of the Small Claims Court Act absent genuine agreement of all parties.
37. Fifth, whether the trial court misdirected itself on jurisdiction in declining to determine the pleaded set-off of Kshs. 367,200 under Section 12(1)(e) of the Small Claims Court Act, which the Appellant submitted conferred jurisdiction over contracts "of whatever nature" including disputes on set-off and counterclaim, such that the rental deposit dispute did not fall within the excluded subject matters.
Respondent's Submissions
38. The Respondent framed five issues in response. First, that the record confirms the Appellant's consent to proceeding under Section 30 on 5th March 2025, and that having filed submissions thereafter without objection, he is estopped from approbating and reprobating, relying on Wasike v Wamboko (Civil Appeal 81 of 1984) [1985] KECA 149 (KLR).
39. Second, that the documents complained of were filed pursuant to the trial court's unchallenged reinstatement ruling, and that the Appellant participated in the proceedings and addressed those documents in his own submissions without raising objection.
40. Third, that the participation of two advocates is irrelevant to the merits, the change of representation having arisen from the former advocate's non-attendance.
41. Fourth, that the Appellant has not identified any specific evidence ignored by the trial court, that the trial court properly declined jurisdiction over the tenancy-based counterclaim, and that the forgery allegations were properly disregarded as neither pleaded with specificity nor strictly proved.
42. Fifth, that the Respondent proved his case on a balance of probabilities through WhatsApp communications, the cheque issued in attempted settlement, and text messages acknowledging the debt, relying on Section 38 of the Small Claims Court Act and Associated Motors Co. Ltd v Blue Sea Services Ltd [2019] KEHC 847 (KLR), which cited Chemagong v Republic [1984] KLR for the principle that this Court should not disturb findings of fact absent perversity, want of evidence, or misapprehension of the evidence.
DETERMINATION
43. I have carefully considered the appeal, the submissions of the parties, and the authorities cited. This Court's appellate jurisdiction is confined to matters of law by Section 38(1) of the Small Claims Court Act, which provides that a person aggrieved by a decision or order of the Small Claims Court may appeal to the High Court on matters of law. I am accordingly constrained to restrict myself to issues of law.
44. The Supreme Court in Munya v Kithinji & 2 others (Petition 2B of 2014) [2014] KESC 38 (KLR) clarified the scope of the phrase "matters of law" at paragraphs 80, 82 and 93, identifying three constituent elements: the technical element, involving interpretation of a constitutional or statutory provision; the practical element, involving application of the Constitution and the law to facts on record; and the evidentiary element, involving evaluation of whether the trial court's conclusions are supported by the evidence on record. The Supreme Court held that a petition inviting the appellate court to re-examine the probative value of evidence, particularly the credibility of witnesses, ought not to be admitted. While the Court is free to navigate the evidential landscape on appeal, it must show deference to the trial court on credibility and probative value, and must maintain fidelity to the trial record; the evaluation of evidence on record is only to enable the Court to determine whether the trial court's conclusions were supported by the evidence or were so perverse that no reasonable tribunal would have reached them. I am guided by these pronouncements and will not disturb the factual findings of the trial court unless they are shown not to flow from the evidence on record.
45. Having considered the grounds of appeal and the parties' submissions, this appeal raises four principal issues: whether the procedural complaints raised by the Appellant warrant the intervention of this Court; whether the question of quality of services ought to have been determined by the trial court; whether the trial court had jurisdiction to determine the counterclaim and set-off; and who should bear costs.
Whether the Procedural Complaints Warrant Intervention
i. Proceeding under Section 30 of the Small Claims Court Act
46. Section 30 of the Small Claims Court Act provides that, subject to the agreement of all parties to the proceedings, the court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the court. The Appellant contends that the trial court proceeded under this section without the genuine agreement of all parties.
47. I have examined the proceedings. On 5th March 2025, at page 13 of the Record of Appeal, the Appellant indicated that he had no objection to proceeding under Section 30. Having so consented, the Appellant cannot now fault the trial court on this ground.
(b) Filing of Further Documents by the Respondent
48. The Appellant argues that the trial court allowed the Respondent to file further documents as late as 4th March 2025, occasioning a trial by ambush. I have seen that the Appellant himself filed a further Witness Statement dated 10th March 2025 responding to the issues raised in those late-filed documents. He also filed submissions at the trial court which he has strategically omitted from this record. He therefore had the opportunity to respond to any issues raised in the Respondent's subsequent documents. I am further guided by Rule 18 of the Small Claims Court Rules, which permits the filing of further documents as late as three days before the hearing date. I do not find the argument on trial by ambush convincing, and the trial court cannot be faulted on this ground.
(c) Different Advocates on Record for the Respondent
52. The Appellant argues that the appearance of two advocates for the Respondent affected the propriety of the proceedings. This is an unfounded ground: the Appellant has not shown how it affected the merits of the case. The trial court cannot be faulted on this ground.
(d) Alleged Forgery in the Respondent's Affidavits
53. The Appellant raised the issue of differing signatures used by the Respondent in his affidavits and pleadings. The record shows this was raised in the Appellant's Replying Affidavit sworn on 25th October 2024, in response to the Respondent's application for reinstatement dated 2nd October 2024. The Respondent swore a further affidavit on 7th November 2024 confirming that all the signatures were his, which the Appellant did not challenge. This is an evidential question, and the trial court was entitled to be satisfied with the Respondent's explanation. No error of law has been demonstrated, and the Appellant has not developed this point beyond stating it as a ground of appeal. The trial court cannot be faulted on this ground.
Decretal Amounts that do not Reflect the Trial Court's Factual Findings
54. The Appellant submits that the trial court entered judgment on admission for Kshs. 83,300 in respect of the Toyota Hilux and Toyota Sienta, and further found that the Appellant owed Kshs. 59,500 and Kshs. 21,100 on account of the Nissan Patrol and Mitsubishi Pajero respectively. These amounts total Kshs. 163,900, yet the final order was for payment of Kshs. 172,000, a discrepancy of Kshs. 8,100 which the learned Magistrate did not explain.
55. From my reading of the judgment, the learned Magistrate did not consider that the total amount claimed by the Respondent for repair of the Toyota Sienta was Kshs. 26,000. She took into account only the admitted amount of Kshs. 21,000 but made no finding on the balance of Kshs. 5,000. I would accordingly remit the matter to the learned Magistrate to make an express finding on this balance.
56. I have also noted that the learned Magistrate did not expressly consider the further items making up the claimed Kshs. 172,000, namely Kshs. 2,000 on account of the Nissan Patrol coil, Hilux door light and rider, and Kshs. 2,0
[...truncated]
1. This is an appeal by Ralph Edward Nzwii Nguma (hereinafter "the Appellant") against the judgment and decree of Hon. J. Asiago, Resident Magistrate, delivered on 15th April 2025 in SCCCOMM/E3693/2024 at the Milimani Small Claims Court. The learned Magistrate entered judgment in favour of Mulei Nzila trading as Prime Automotive (hereinafter "the Respondent") against the Appellant for the principal sum of Kshs. 172,000.
BACKGROUND
2. At the relevant time, the Respondent operated a garage providing motor vehicle repair services under the business name Prime Automotive. On various dates in 2023 and 2024, the Appellant brought four motor vehicles to the Respondent's garage for an assortment of repair and maintenance services. That much is common ground between the parties. The specific vehicles repaired, the quality of the work performed, and the amounts owing therefrom are all in dispute.
3. On reading the whole record, this Court notes that the suit was dismissed at the trial court for failure of appearance on the hearing scheduled for 1st October 2024. This led to two applications for reinstatement of suit, dated 1st October 2024 and 2nd October 2024, and the responses thereto. The latter application was ultimately allowed and the suit proceeded. One of the arguments presented in that application has survived to this appeal, as is evident on the face of the Memorandum of Appeal. This Court will accordingly consider not only the pleadings and evidence in support thereof but also the content of that application, the responses filed, and their bearing on this appeal.
a. Pleadings at the Trial Court
i. Statement of Claim dated 4th April 2024
4. The Respondent, as Claimant at the trial court, stated that his claim was for Kshs. 172,000 as the outstanding sum due from the Appellant, who had failed to pay for repair services contrary to and in breach of contract. The Respondent stated that on various dates in 2023 the Appellant took his cars to the garage for an assortment of services, and that despite several reminders and service of a demand and notice of intention to sue, the Appellant had failed and neglected to pay the total service and repair fees amounting to Kshs. 172,000. The Respondent sought judgment in that sum, costs, interest, and such other relief as the court would deem just and fit.
a. (b) Response to Statement of Claim and Counterclaim dated 17th April 2024
5. The Appellant admitted taking a Toyota Pickup, a Nissan Patrol, a Mitsubishi Pajero, and a Toyota Sienta to the Respondent's garage. He clarified that he only owed Kshs. 62,300 and Kshs. 21,000 for repairs of the Toyota Hilux and the Sienta respectively. He stated that the Respondent failed to repair the Nissan Patrol and Mitsubishi Pajero as agreed.
6. In respect of the Nissan Patrol, the Appellant stated that since it was taken to the Respondent's garage for repairs it had been grounded, and that he returned it for further repairs, but it only became worse; since the last time the Respondent returned the Nissan Patrol, it had not been in use and at the time of the suit it was completely grounded. As regards the Mitsubishi Pajero, the Appellant averred that the Respondent failed to correct the "Check Engine" light despite assurances that he had done so, and that the vehicle kept moving to the left, thereby putting the driver's life at risk.
7. In his Counterclaim, the Appellant stated that he claimed Kshs. 450,500 from the Respondent based on frustration of the contract for delivery of rental services. He stated that on 4th July 2023 he paid the Respondent a deposit of Kshs. 420,000 to prepare a lease agreement and give him tenantable property, which the Respondent failed to do. He further stated that he expended Kshs. 30,500 to workers to cut grass and make the property tenantable, to remedy the Respondent's breach. The Appellant concluded that he was entitled to a set-off of Kshs. 367,200, as he had given the Respondent Kshs. 450,500 while he only owed Kshs. 83,300. He further averred that he did not admit that the trial court had jurisdiction.
a. (c) Response to Counterclaim/Set-off dated 12th July 2024
8. The Respondent stated that he did not owe the Appellant any money as claimed in the Counterclaim. He stated that the Appellant's counterclaim concerned a different subject matter that did not fall within the jurisdiction of the Small Claims Court, as it related to a landlord-tenant relationship and alleged rent arrears. He requested that the Counterclaim/Set-off be dismissed with costs.
9. From the record, this was not the only Response to the Counterclaim and Set-off that the Respondent filed. Following dismissal of the suit for the Respondent's failure to appear at the hearing scheduled for 1st October 2024, he filed two applications for reinstatement, dated 1st October 2024 and 2nd October 2024. In the latter application, the Respondent sought not only reinstatement of the suit but also a change of advocates from Odero & Partners Advocates to Odhiambo Owino & Company Advocates. It appears the Respondent felt that the suit had been dismissed due to his first advocate's indolence. The new advocates on record sought to supplement gaps they felt risked undermining the Respondent's case, and to that end filed another Response to the Counterclaim dated 4th March 2025.
a. (d) Response to Counterclaim dated 4th March 2025
10. The Respondent stated that the Appellant was his tenant and that the Kshs. 420,000 was sent on account of rent. He stated that the Kshs. 30,000 was not paid to him by the Appellant. He stated that the Appellant occupied the premises until March 2024, when he vacated without settling the rent arrears but later issued a cheque which he instructed the bank not to honour. The Respondent stated that the tenancy issue was a separate business not related to the primary dispute, and that he intended to file a suit for recovery of rent arrears in the Magistrate's Court. He characterised the Counterclaim and Set-off as unmerited and as a ploy to confuse the court, and concluded that the Appellant had admitted to owing him money which he was yet to settle.
a. Evidence at the Trial Court
i. Respondent's Evidence
11. The Respondent filed two Witness Statements, dated 30th July 2024 and 25th January 2025 respectively.
12. In his first Witness Statement, the Respondent stated that as the proprietor and operator of Prime Automotive garage, the Appellant routinely engaged his services. He stated that on various dates in 2023 and 2024 the Appellant brought cars to the garage for repairs, as summarised in the table below.
Vehicle / Item
Detail
Kshs.
Toyota Hilux KDN 655S - 17 October 2023
Oil filter change
1,800
Fuel filter change
2,500
Oil change
7,000
Cabin filter change
1,500
Air cleaner
2,000
AdBlue 5L (Diesel Exhaust Fluid)
1,500
Tailgate lock repair
3,000
Spacers x4 (for stability)
40,000
Labour
3,000
Sub-total
62,300
Nissan Patrol KAR 462 - 9 November 2023
Injector gasket kit
8,000
Injector supply blades x4
12,000
Heater plug
2,500
Nozzles service & tips x2
11,000
Diesel
11,000
Labour & wiring
15,000
Sub-total
59,500
Mitsubishi Pajero KCR 711N - 20 December 2023
Plugs x6
18,000
Petrol
2,000
Labour
1,000
Sub-total
21,000
Toyota Sienta KCG 902L - 5 January 2024
Paint bumper and wing
11,000
Headlight xenon
15,000
Sub-total
26,000
Nissan Patrol coil / Hilux door light & rider
2,000
Hilux AdBlue 5L (Diesel Exhaust Fluid)
2,000
TOTAL
172,800
13. The Respondent stated that despite fulfilling his obligations under the agreement by repairing the above-mentioned vehicles, the Appellant failed and neglected to honour his obligations, notwithstanding several reminders including a notice of intention to sue.
14. In his second Witness Statement, the Respondent confirmed that he ran a garage called Prime Automotive and that he and the Appellant were cousins. He stated that he had hoped the Appellant would treat his business fairly and pay the dues as promised, but instead the Appellant kept finding excuses and deceived him on several occasions, failing to answer calls or switching off his phone. He averred that he had tried to settle the issue at family level, but this proved unsuccessful as the Appellant constantly changed his position and began accusing him of extortion.
15. The Respondent reiterated the repairs done and the costs thereof, as set out in the table above, and clarified that the Toyota Sienta KCG 902L belonged to a third party but was repaired at the Appellant's behest, as the Appellant had damaged it while backing out of a car wash. He stated that, given the cordial relationship between them at the time of the repairs, he neither demanded a deposit nor charged strict market rates.
16. The Respondent gave a detailed chronological account of communications between the parties from November 2023 to March 2024, including repeated requests for payment, the Appellant's shifting explanations involving transfers, RTGS forms, agents, and cash handovers, and the Appellant's eventual commitment to issue a cheque. The Respondent testified that he was directed to collect cheque number 0220498, drawn on CFC Stanbic Bank Kenya Limited for Kshs. 200,000, which he deposited on the Appellant's instructions. On 11th March 2024, when the Respondent attempted to withdraw the funds, he discovered that the cheque had been cancelled by the drawer, CFC Stanbic Bank Kenya Limited, seemingly at the Appellant's behest. The Respondent concluded that the Appellant's attempt to pay Kshs. 200,000 by cheque was a clear indication that he had delivered vehicles for repair, that the repairs were done, and that he was liable to pay approximately Kshs. 170,000.
a. Respondent's Documents
17. The Respondent produced an Excel breakdown of amounts owing; a Unified Business Permit for Prime Automotive effective from 10th July 2024 to 24th July 2025; copies of text messages evidencing communication on various dates between November 2023 and March 2024; a transaction receipt for the attempted withdrawal of Kshs. 200,000 dated 11th March 2024; an email from Paul Njau of I&M Bank confirming that the cheque had been stopped by the drawer; and a text message dated 13th March 2024 forwarding the Excel breakdown and warning of impending legal action.
a. (b) Appellant's Evidence
18. The Appellant filed two Witness Statements, dated 9th July 2024 and 25th March 2025 respectively.
19. In his first Witness Statement, the Appellant averred that the Respondent's claim of Kshs. 172,000 was false, as no evidence had been adduced in support. He confirmed liability for Kshs. 62,300 and Kshs. 21,000 for the Toyota Hilux and Toyota Sienta respectively. As regards the Nissan Patrol, he stated that instead of addressing the cold-start problem, the Respondent added a red bypass switch which interfered with the heater plugs and ignition module, rendering the vehicle unusable, and that he had to pay Kshs. 100,000 to one Augustine Sanya of Maruti Autotec to resolve the resulting issues. As regards the Mitsubishi Pajero, he stated that the "Check Engine" light persisted and a new fault of the vehicle veering left emerged even after the Respondent's purported repair; a visit to Maruti Autotec revealed that the catalytic converters had been removed, which he attributed to the Respondent, necessitating a further Kshs. 60,000 in repairs.
20. The Appellant further stated that he had sent Kshs. 450,500 to the Respondent as consideration for rental services which the Respondent failed to supply, in that he failed to vacate the premises, prepare a lease agreement, or hand over exclusive possession. He asked for a refund of Kshs. 450,500 or, alternatively, a set-off of Kshs. 367,200.
21. In his second Witness Statement, the Appellant stated that the three undated Excel spreadsheets marked as invoices were fabrications that did not prove he owed Kshs. 172,000, and that they did not resemble the invoices the Respondent had previously issued between 2021 and 2023. He denied the numerous communications alleged in the Respondent's second Witness Statement and stated that he ended the association after the Respondent began doing shoddy work and stealing motor vehicle parts. He reiterated that the Nissan Patrol and Mitsubishi Pajero were not repaired, referring to the Respondent's own text message of 28th February 2024, in which the Respondent indicated a willingness to forgo the amount claimed for the Pajero because the issue was not sorted. He stated that in May 2024 he took the Nissan Patrol to Maruti Autotec for a second opinion, where he was informed that the bypass installed by the Respondent had interfered with the heater, ignition module, and clutch, necessitating a further Kshs. 78,900 in repairs; and that Maruti Autotec had also identified the removal of the two catalytic converters from the Mitsubishi Pajero, requiring a further Kshs. 50,000 for replacements. In total, the Appellant stated that he had spent Kshs. 128,900 on further repairs, making it unfair for him to pay the Kshs. 172,000 demanded.
a. Appellant's Documents
22. The Appellant produced a copy of the RTGS form dated 4th July 2023 for transfer of Kshs. 420,000 to the Respondent's Co-operative Bank account; a copy of Swift Message 103 confirming that transfer; copies of Mpesa confirmations of Kshs. 15,500 and Kshs. 15,000 transferred to one Nzila Itwiku on 19th and 20th June 2023 respectively; a copy of the Respondent's text message of 28th February 2024; two undated invoices from Maruti Autotec for repair of the Nissan Patrol; an undated invoice from Maruti Autotec for repair of the Mitsubishi Pajero; a folio of Mpesa messages evidencing transfers between 27th May 2023 and 16th September 2023; and copies of messages forwarding the Mpesa confirmations to the Respondent.
a. Submissions by the Parties at the Trial Court
23. The Respondent, as Claimant, submitted on four issues: whether the Appellant received services from the Respondent; the amount of consideration payable and whether it had been settled; whether the set-off and counterclaim were merited; and costs. On the question of consideration, the Respondent submitted that as the trusted expert, he was entitled to determine the prices payable, and that the Appellant could not use the argument of improper repair to avoid payment, since payment was not pegged on satisfactory delivery of service, the Appellant had never previously complained of poor repairs, he was not a trained mechanic competent to assess repair quality, and the receipts from Maruti Autotec were neither dated nor stamped. The Respondent relied on Chege v Olembo & another (Civil Appeal 497 of 2018) [2023] KEHC 18115 (KLR) for the proposition that an unsigned invoice cannot be verified as genuine absent testimony from a person who worked at the issuing garage.
24. On the set-off and counterclaim, the Respondent submitted that the Kshs. 420,000 was paid as a three-month deposit while the Appellant had stayed on the premises for eight months, that the Kshs. 30,500 was sent to Nzila Itwiku, the Respondent's brother, in a transaction to which the Respondent was not privy, and that in any event the trial court had no jurisdiction over tenancy disputes.
25. This Court has examined the record and been unable to locate the Appellant's written submissions at the trial court. The only submissions by the Appellant on record are those dated 15th November 2024, filed in respect of the application to reinstate the suit. It appears from paragraph 8 of the Respondent's submissions before this Court that the Appellant filed submissions dated 21st March 2025 at the trial court, which may have been strategically omitted to advance a ground of appeal — an allegation this Court addresses further below. At this stage, it suffices to note that the Appellant's written submissions before the trial court do not form part of the record or supplementary record of appeal.
Judgment of the Trial Court dated 15th April 2025
26. The learned Magistrate found that a contract for repair of motor vehicles existed between the parties. In view of the Appellant's admission at paragraph 3 of his Response to Statement of Claim that he owed Kshs. 62,300 and Kshs. 21,000 for the Toyota Hilux and Sienta respectively, the learned Magistrate entered judgment on admission for Kshs. 83,300.
27. The court then framed three issues for determination. On the first issue — whether the Respondent had proved his case with regard to motor vehicle registration numbers KAR 462 and KCR 711N for Kshs. 59,500 and Kshs. 21,100 respectively — the learned Magistrate found that, by the Appellant's own admission, the vehicles had been taken to the Respondent's garage for repairs, even though those repairs were not to the Appellant's satisfaction. The learned Magistrate held that this discharged the Respondent's burden of proving that he had repaired the vehicles at the alleged costs, and found that the question of quality of service rendered was a separate claim which the Appellant ought to have pursued independently.
28. On the second issue — whether the set-off could be allowed — the learned Magistrate held that this was a matter of landlord-tenant relationship falling outside the jurisdiction conferred on the court by Section 12 of the Small Claims Court Act, distinguishing this matter from Namisi Muhanda v LP Holdings Ltd [Civil Appeal E256 of 2023] [2025] KEHC 393 (KLR) (Commercial and Tax) (23 January 2025), which concerned rent deposits.
29. On the third and final issue, the learned Magistrate awarded costs to the Respondent as the successful party, pursuant to Section 30 of the Small Claims Court Act, to be assessed at the registry. The court entered final judgment for the principal sum of Kshs. 172,000.
THE APPEAL
30. Dissatisfied with the decision of the learned Magistrate, the Appellant lodged this appeal by way of a Memorandum of Appeal dated 6th May 2025, raising nine grounds. Distilled to their essence, the grounds are: that the trial court erred in proceeding on a documents-only basis under Section 30 of the Small Claims Court Act without the genuine agreement of all parties; that it erred in allowing the Respondent to file multiple further statements, responses, and documents after the Appellant had already filed his defence and witness statement; that it erred in disregarding the Appellant's concerns about the propriety of proceedings arising from an altercation between two advocates appearing for the Respondent; that it erred in condemning the Appellant unheard, contrary to the principles of natural justice; that it erred in permitting the Respondent to repeatedly alter his pleadings, creating a trial by ambush; that it applied wrong principles in determining the issues raised; that it ignored the provisions of the Small Claims Court Act and the Constitution; that it ignored the evidence put in by the Appellant; and that in its ruling of 9th April 2025 it compounded these errors by disregarding the counterclaim and set-off, ignoring concerns about forgery in the Respondent's affidavits, disregarding the Appellant's defence of defective performance by erroneously treating it as a separate claim, and wrongly holding that delivery of vehicles to a garage is sufficient proof that the mechanic repaired them.
31. The Appellant prays that this Court allow the appeal, quash or set aside the decision of the learned Magistrate, make its own findings on the law and the facts or, alternatively, refer the matter for hearing before a different adjudicator, and award costs of the appeal and of the trial court proceedings.
SUBMISSIONS ON APPEAL
32. This appeal was disposed of by way of written submissions. The Appellant's submissions are dated 16th March 2026 and the Respondent's submissions are dated 18th May 2026.
Appellant's Submissions
33. The Appellant framed five issues. First, whether the decretal sum of Kshs. 172,000 can lawfully stand where the trial court's own quantified findings total only Kshs. 163,900. The Appellant submitted that the sum of the judgment on admission (Kshs. 83,300) and the amounts found proved for the Nissan Patrol and Mitsubishi Pajero (Kshs. 59,500 and Kshs. 21,100 respectively) totals Kshs. 163,900, not the Kshs. 172,000 awarded. He attributed the discrepancy to a Kshs. 5,000 balance for the Toyota Sienta not admitted, and a further Kshs. 4,000 for other items, on which the trial court made no findings, rendering the decree unsafe and incapable of remedy under Section 99 of the Civil Procedure Act.
34. Second, whether the trial court erred in failing to analyse the Respondent's written admission that the Pajero issue "wasn't sorted" and that Kshs. 21,000 should accordingly be deducted, relying on Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR and Butt v Khan [1981] KLR 349.
35. Third, whether the Respondent strictly proved the contested repair sums, given competing documentary evidence from an independent garage showing substantial rectification costs on both vehicles. The Appellant submitted that the Respondent's invoices merely showed work billed, not competent performance, and that the trial court ignored the Maruti Autotec invoices without giving reasons; he argued that defective performance is a defence to a claim for payment, not a separate cause of action.
36. Fourth, whether the matter was lawfully determined on a documents-only basis under Section 30 of the Small Claims Court Act absent genuine agreement of all parties.
37. Fifth, whether the trial court misdirected itself on jurisdiction in declining to determine the pleaded set-off of Kshs. 367,200 under Section 12(1)(e) of the Small Claims Court Act, which the Appellant submitted conferred jurisdiction over contracts "of whatever nature" including disputes on set-off and counterclaim, such that the rental deposit dispute did not fall within the excluded subject matters.
Respondent's Submissions
38. The Respondent framed five issues in response. First, that the record confirms the Appellant's consent to proceeding under Section 30 on 5th March 2025, and that having filed submissions thereafter without objection, he is estopped from approbating and reprobating, relying on Wasike v Wamboko (Civil Appeal 81 of 1984) [1985] KECA 149 (KLR).
39. Second, that the documents complained of were filed pursuant to the trial court's unchallenged reinstatement ruling, and that the Appellant participated in the proceedings and addressed those documents in his own submissions without raising objection.
40. Third, that the participation of two advocates is irrelevant to the merits, the change of representation having arisen from the former advocate's non-attendance.
41. Fourth, that the Appellant has not identified any specific evidence ignored by the trial court, that the trial court properly declined jurisdiction over the tenancy-based counterclaim, and that the forgery allegations were properly disregarded as neither pleaded with specificity nor strictly proved.
42. Fifth, that the Respondent proved his case on a balance of probabilities through WhatsApp communications, the cheque issued in attempted settlement, and text messages acknowledging the debt, relying on Section 38 of the Small Claims Court Act and Associated Motors Co. Ltd v Blue Sea Services Ltd [2019] KEHC 847 (KLR), which cited Chemagong v Republic [1984] KLR for the principle that this Court should not disturb findings of fact absent perversity, want of evidence, or misapprehension of the evidence.
DETERMINATION
43. I have carefully considered the appeal, the submissions of the parties, and the authorities cited. This Court's appellate jurisdiction is confined to matters of law by Section 38(1) of the Small Claims Court Act, which provides that a person aggrieved by a decision or order of the Small Claims Court may appeal to the High Court on matters of law. I am accordingly constrained to restrict myself to issues of law.
44. The Supreme Court in Munya v Kithinji & 2 others (Petition 2B of 2014) [2014] KESC 38 (KLR) clarified the scope of the phrase "matters of law" at paragraphs 80, 82 and 93, identifying three constituent elements: the technical element, involving interpretation of a constitutional or statutory provision; the practical element, involving application of the Constitution and the law to facts on record; and the evidentiary element, involving evaluation of whether the trial court's conclusions are supported by the evidence on record. The Supreme Court held that a petition inviting the appellate court to re-examine the probative value of evidence, particularly the credibility of witnesses, ought not to be admitted. While the Court is free to navigate the evidential landscape on appeal, it must show deference to the trial court on credibility and probative value, and must maintain fidelity to the trial record; the evaluation of evidence on record is only to enable the Court to determine whether the trial court's conclusions were supported by the evidence or were so perverse that no reasonable tribunal would have reached them. I am guided by these pronouncements and will not disturb the factual findings of the trial court unless they are shown not to flow from the evidence on record.
45. Having considered the grounds of appeal and the parties' submissions, this appeal raises four principal issues: whether the procedural complaints raised by the Appellant warrant the intervention of this Court; whether the question of quality of services ought to have been determined by the trial court; whether the trial court had jurisdiction to determine the counterclaim and set-off; and who should bear costs.
Whether the Procedural Complaints Warrant Intervention
i. Proceeding under Section 30 of the Small Claims Court Act
46. Section 30 of the Small Claims Court Act provides that, subject to the agreement of all parties to the proceedings, the court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the court. The Appellant contends that the trial court proceeded under this section without the genuine agreement of all parties.
47. I have examined the proceedings. On 5th March 2025, at page 13 of the Record of Appeal, the Appellant indicated that he had no objection to proceeding under Section 30. Having so consented, the Appellant cannot now fault the trial court on this ground.
(b) Filing of Further Documents by the Respondent
48. The Appellant argues that the trial court allowed the Respondent to file further documents as late as 4th March 2025, occasioning a trial by ambush. I have seen that the Appellant himself filed a further Witness Statement dated 10th March 2025 responding to the issues raised in those late-filed documents. He also filed submissions at the trial court which he has strategically omitted from this record. He therefore had the opportunity to respond to any issues raised in the Respondent's subsequent documents. I am further guided by Rule 18 of the Small Claims Court Rules, which permits the filing of further documents as late as three days before the hearing date. I do not find the argument on trial by ambush convincing, and the trial court cannot be faulted on this ground.
(c) Different Advocates on Record for the Respondent
52. The Appellant argues that the appearance of two advocates for the Respondent affected the propriety of the proceedings. This is an unfounded ground: the Appellant has not shown how it affected the merits of the case. The trial court cannot be faulted on this ground.
(d) Alleged Forgery in the Respondent's Affidavits
53. The Appellant raised the issue of differing signatures used by the Respondent in his affidavits and pleadings. The record shows this was raised in the Appellant's Replying Affidavit sworn on 25th October 2024, in response to the Respondent's application for reinstatement dated 2nd October 2024. The Respondent swore a further affidavit on 7th November 2024 confirming that all the signatures were his, which the Appellant did not challenge. This is an evidential question, and the trial court was entitled to be satisfied with the Respondent's explanation. No error of law has been demonstrated, and the Appellant has not developed this point beyond stating it as a ground of appeal. The trial court cannot be faulted on this ground.
Decretal Amounts that do not Reflect the Trial Court's Factual Findings
54. The Appellant submits that the trial court entered judgment on admission for Kshs. 83,300 in respect of the Toyota Hilux and Toyota Sienta, and further found that the Appellant owed Kshs. 59,500 and Kshs. 21,100 on account of the Nissan Patrol and Mitsubishi Pajero respectively. These amounts total Kshs. 163,900, yet the final order was for payment of Kshs. 172,000, a discrepancy of Kshs. 8,100 which the learned Magistrate did not explain.
55. From my reading of the judgment, the learned Magistrate did not consider that the total amount claimed by the Respondent for repair of the Toyota Sienta was Kshs. 26,000. She took into account only the admitted amount of Kshs. 21,000 but made no finding on the balance of Kshs. 5,000. I would accordingly remit the matter to the learned Magistrate to make an express finding on this balance.
56. I have also noted that the learned Magistrate did not expressly consider the further items making up the claimed Kshs. 172,000, namely Kshs. 2,000 on account of the Nissan Patrol coil, Hilux door light and rider, and Kshs. 2,0
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