(Being an Appeal from the Judgment of Hon. T.K. Nambisia (Adjudicator) delivered on 10 th March 2025 at Milimani Small Claims Court Claim No. E4299 of 2025)
1. The appeal arises from the Judgment of the Small Claims Court at Milimani ( T.K. Nambisia, RM ) delivered on 10 th March 2025 in SCCC No. E4299 of 2023, wherein the appellant’s case was dismissed with costs to the respondent. The trial court also granted the appellant a stay of execution for 30 days.
2. Aggrieved, the appellant filed a Memorandum of Appeal dated 10 th April 2025, raising five grounds of appeal:
‘ 1. That the trial Magistrate erred in law and fact by dismissing the appellant’s suit against the weight of evidence
2. That the trial Adjudicator erred in law and fact by failing to find that the respondent breached the contract between it and the appellant.
3. The trial Magistrate erred in law and fact by failing to evaluate correctly the evidence adduced by the appellant and consequently arriving in an erroneous conclusion that is not founded in evidence.
4. The trial Magistrate erred in law and fact by making a finding that the matter was in relation to a contract of money held and received contrary to the appellant’s pleadings, the suit was for an illegal repossession and sale of the appellant’s motor vehicle.
5. The trial Magistrate erred in law and in fact by failing to consider the written submissions of the appellant in arriving at her judgment. ’
3. In response to the appellant’s memorandum of appeal, the respondent has filed a notice of preliminary objection dated 16 th October 2025 contending that this Court lacks jurisdiction to determine the appeal as it does not abide by the parameters of Section 38 of the Small Claims Court Act, Cap 10A of the Laws of Kenya.
4. Citing Amunga vs Muisu (Civil Appeal E725 of 2022) [2024] KEHC 2504 (KLR) , the respondent submits that, pursuant to Section 38 of the Small Claims Court Act, appeals to the High Court lie only on matters of law. It is further asserted that, notwithstanding the appellant’s claim that the appeal raises both issues of fact and law, the grounds of appeal, properly construed, are all factual contestations. On that basis, the respondent urges that the appeal falls short of the statutory threshold and ought to be struck out with costs.
5. In rebuttal, and while appearing to concede that grounds 1 and 2 of its memorandum of appeal challenge factual findings, the appellant postulates that grounds 3, 4 and 5 raise matters of law and are therefore properly before this Court. Moreover, the appellant relies on Munya vs Kithinji & 2 Others (Application 5 of 2014) [2014] KESC 30 (KLR) to urge that issues of law cannot be completely divorced from factual issues.
6. On the issue of costs, the appellant urges this Court to be guided by the settled principle that costs follow the event as articulated in Rai & 3 Others vs Rai & 4 Others (Petition 4 of 2012) [2014] KESC 31 (KLR) .
ANALYSIS AND DETERMINATION
7. I have considered the arguments advanced by both parties and the authorities cited. The jurisdiction of this Court on an appeal from the Small Claims Court is spelt out in Section 38(1) of the Small Claims Court Act to be only on matters of law and that such an appeal is final.
8. In Wanjiru v Kiilu (Civil Appeal 90 of 2023) [2024] KEHC 8881 (KLR) (19 July 2024) (Judgment) , the High Court appreciated its appellate jurisdiction in respect of appeals emanating from decisions of the Small Claims Court as follows:
“It therefore follows that appeals originating from the Small Claims Court to this court can only be on the points of law. Consequently, this court cannot, in appeals emanating from that Court, entertain an invitation to interfere with the factual findings of the trial court. The duty of this court when dealing with such appeals, is therefore equivalent to that of the Court of Appeal in its capacity as a second appellate court.”
9. In the case of Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR , the Court of Appeal clarified that where a right of appeal is confined to questions of law only, an appellate court is duty bound to accept the findings of fact of the lower court and should not interfere with the decisions of the trial court on the factual issues “unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law”.
10. The sole issue arising for determination in this ruling is whether the grounds of appeal preferred by the appellant raise questions of fact or law. The appellant appears to have conceded that grounds 1 and 2 raise questions of fact and has urged the court to find that the remaining grounds raise questions of law.
11. I have examined grounds 3, 4, 5 and 6 as pleaded in the Memorandum of Appeal dated 8 th April 2025. In ground 3, the appellant contends that the learned trial magistrate considered issues not raised by the parties to the suit and failed to consider that there existed a valid and enforceable contract between the parties. The question as to the validity and/or enforceability of a contract is a question of law, not fact. Similarly, the question whether the trial court considered issues not pleaded by the parties is a question of law. The appellant is not challenging the trial court’s findings of fact but rather, the trial court’s exercise of discretion. I am satisfied that ground 3 raises questions of law.
12. Ground 4 appears to me to challenge the trial court’s factual findings. The appellant states that the court failed to correctly evaluate the evidence adduced by the appellant and consequently arrived to a conclusion that has no legal or factual basis. This ground flies in the face of section 38 (supra).
13. Ground 5 is also a question of fact. It seeks to challenge the trial court’s factual finding that the suit was in relation to a contract for money held and received as opposed repossession and sale of the appellant’s motor vehicle. This ground therefore offends the provisions of section 38 (supra).
14. Ground 6 is rather ambiguous but it would appear that the appellant is challenging the dismissal order made by the trial court.
15. In the end, I do hereby find and hold that the appeal herein raises at least one question of law and should therefore proceed for hearing and determination on merit.
16. The respondent’s notice of preliminary objection dated 16 th October 2025 lacks merit and is hereby dismissed with costs.
17. The matter shall be mentioned before the Deputy Registrar for directions on the hearing of the appeal.
18. It is so ordered.
1. The appeal arises from the Judgment of the Small Claims Court at Milimani ( T.K. Nambisia, RM ) delivered on 10 th March 2025 in SCCC No. E4299 of 2023, wherein the appellant’s case was dismissed with costs to the respondent. The trial court also granted the appellant a stay of execution for 30 days.
2. Aggrieved, the appellant filed a Memorandum of Appeal dated 10 th April 2025, raising five grounds of appeal:
‘ 1. That the trial Magistrate erred in law and fact by dismissing the appellant’s suit against the weight of evidence
2. That the trial Adjudicator erred in law and fact by failing to find that the respondent breached the contract between it and the appellant.
3. The trial Magistrate erred in law and fact by failing to evaluate correctly the evidence adduced by the appellant and consequently arriving in an erroneous conclusion that is not founded in evidence.
4. The trial Magistrate erred in law and fact by making a finding that the matter was in relation to a contract of money held and received contrary to the appellant’s pleadings, the suit was for an illegal repossession and sale of the appellant’s motor vehicle.
5. The trial Magistrate erred in law and in fact by failing to consider the written submissions of the appellant in arriving at her judgment. ’
3. In response to the appellant’s memorandum of appeal, the respondent has filed a notice of preliminary objection dated 16 th October 2025 contending that this Court lacks jurisdiction to determine the appeal as it does not abide by the parameters of Section 38 of the Small Claims Court Act, Cap 10A of the Laws of Kenya.
4. Citing Amunga vs Muisu (Civil Appeal E725 of 2022) [2024] KEHC 2504 (KLR) , the respondent submits that, pursuant to Section 38 of the Small Claims Court Act, appeals to the High Court lie only on matters of law. It is further asserted that, notwithstanding the appellant’s claim that the appeal raises both issues of fact and law, the grounds of appeal, properly construed, are all factual contestations. On that basis, the respondent urges that the appeal falls short of the statutory threshold and ought to be struck out with costs.
5. In rebuttal, and while appearing to concede that grounds 1 and 2 of its memorandum of appeal challenge factual findings, the appellant postulates that grounds 3, 4 and 5 raise matters of law and are therefore properly before this Court. Moreover, the appellant relies on Munya vs Kithinji & 2 Others (Application 5 of 2014) [2014] KESC 30 (KLR) to urge that issues of law cannot be completely divorced from factual issues.
6. On the issue of costs, the appellant urges this Court to be guided by the settled principle that costs follow the event as articulated in Rai & 3 Others vs Rai & 4 Others (Petition 4 of 2012) [2014] KESC 31 (KLR) .
ANALYSIS AND DETERMINATION
7. I have considered the arguments advanced by both parties and the authorities cited. The jurisdiction of this Court on an appeal from the Small Claims Court is spelt out in Section 38(1) of the Small Claims Court Act to be only on matters of law and that such an appeal is final.
8. In Wanjiru v Kiilu (Civil Appeal 90 of 2023) [2024] KEHC 8881 (KLR) (19 July 2024) (Judgment) , the High Court appreciated its appellate jurisdiction in respect of appeals emanating from decisions of the Small Claims Court as follows:
“It therefore follows that appeals originating from the Small Claims Court to this court can only be on the points of law. Consequently, this court cannot, in appeals emanating from that Court, entertain an invitation to interfere with the factual findings of the trial court. The duty of this court when dealing with such appeals, is therefore equivalent to that of the Court of Appeal in its capacity as a second appellate court.”
9. In the case of Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR , the Court of Appeal clarified that where a right of appeal is confined to questions of law only, an appellate court is duty bound to accept the findings of fact of the lower court and should not interfere with the decisions of the trial court on the factual issues “unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law”.
10. The sole issue arising for determination in this ruling is whether the grounds of appeal preferred by the appellant raise questions of fact or law. The appellant appears to have conceded that grounds 1 and 2 raise questions of fact and has urged the court to find that the remaining grounds raise questions of law.
11. I have examined grounds 3, 4, 5 and 6 as pleaded in the Memorandum of Appeal dated 8 th April 2025. In ground 3, the appellant contends that the learned trial magistrate considered issues not raised by the parties to the suit and failed to consider that there existed a valid and enforceable contract between the parties. The question as to the validity and/or enforceability of a contract is a question of law, not fact. Similarly, the question whether the trial court considered issues not pleaded by the parties is a question of law. The appellant is not challenging the trial court’s findings of fact but rather, the trial court’s exercise of discretion. I am satisfied that ground 3 raises questions of law.
12. Ground 4 appears to me to challenge the trial court’s factual findings. The appellant states that the court failed to correctly evaluate the evidence adduced by the appellant and consequently arrived to a conclusion that has no legal or factual basis. This ground flies in the face of section 38 (supra).
13. Ground 5 is also a question of fact. It seeks to challenge the trial court’s factual finding that the suit was in relation to a contract for money held and received as opposed repossession and sale of the appellant’s motor vehicle. This ground therefore offends the provisions of section 38 (supra).
14. Ground 6 is rather ambiguous but it would appear that the appellant is challenging the dismissal order made by the trial court.
15. In the end, I do hereby find and hold that the appeal herein raises at least one question of law and should therefore proceed for hearing and determination on merit.
16. The respondent’s notice of preliminary objection dated 16 th October 2025 lacks merit and is hereby dismissed with costs.
17. The matter shall be mentioned before the Deputy Registrar for directions on the hearing of the appeal.
18. It is so ordered.