JUDGMENT
1. The Appellant herein appeals against the judgment of Hon. Judith Omollo delivered on 7th September 2023 in the Small Claims Court at Nairobi SCCOMM NO. E156 OF 2023 .
Background Facts
2. The Appellant filed the Memorandum of Appeal dated 27th September 2023. It appealed against a section of the judgment on the following grounds;
a) The Adjudicator erred in law and fact by dismissing the Appellant’s Counterclaim of Kshs.624, 607 on the ground that the Appellant did not produce any other documentation apart from its Statement of Accounts to justify the said amount.
b) The Adjudicator erred in law and fact by failing to consider the sworn testimony of the Appellant’s witness who further explained how the Counterclaim sum of Kshs.624, 607 was arrived at.
3. The Appellant prayed for orders that;
a) The Appeal be allowed as prayed.
b) The section of the judgment by the Adjudicator dated 7th September 2023 dismissing the Appellant’s Counterclaim be set aside.
c) The Court to award the Appellant the sum of Kshs.624,607 being the outstanding arrears owed by the Respondent.
d) The costs of the Appeal be awarded to the Appellant.
4. The Appeal was disposed of by way of written submissions which the Court has carefully considered alongside the Record of Appeal. The Court frames the following issues for determination;
a) Whether the Adjudicator erred in law by dismissing the Appellant’s Counterclaim.
b) Whether the Adjudicator erred in law by failing to consider the sworn testimony of the Appellant’s witness.
Analysis
5. This being an Appeal from the Small Claims Court, the duty of the Court is circumscribed under Section 38 of the Small Claims Court Act. It provides that the Appeal should be on matters of law.
6. This position has been elaborated in the case of Mwaura v Wambua (Commercial Appeal E003 of 2024) [2024] KEHC 13897 (KLR) (11 November 2024) (Judgment).
“This being an appeal from the Small Claims Court, the duty of the Court is circumscribed under Section 38 of the Small Claims Court Act which provides as doth:
A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
An appeal from any decision or order referred to in s Sub section (1) shall be final.
The duty of the court is to defer to the findings of fact of the adjudicator and analyse the matter for issues of law. The issues of law are either due to the subject matter or the finding of law by the court.”
7. What constitutes points of law, has been settled in the case of Peter Gichuki King'ara Vs IEBC & 2 Others, Nyeri Civil Appeal No. 31 Of 2013, (Court of Appeal) (Visram, Koome & Odek, JJA) Of 13.02.2014, where the Court of Appeal stated as follows: -
“[I]t is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanour, is an issue of law.”
a) Whether the Adjudicator erred in law by dismissing the Appellant’s Counterclaim.
8. With regard to the Counterclaim, the Appellant maintained that it provided evidence to support its Counterclaim of Kshs.624, 607. That the Respondent has not provided anything to disprove this claim. In addition, the Appellant submitted that the Respondent is not entitled to the remainder of the judgment sum of Kshs.226,756.62 as the same was erroneously computed by the Appellant.
9. The question, therefore is whether the Appellant proved its case against the Respondent on a balance of probabilities. The law is clear that he who alleges must prove. The term “Burden of Proof” is used to mean an obligation to adduce evidence of a fact.
10. Section 107 of Evidence Act defines Burden of Proof as– of the essence the burden of proof is proving the matter in court. Subsection (2) refers to the legal burden of proof.
11. Section 109 of the Evidence Act exemplifies the Rule in Section 107 of the Evidence Act on proof of a particular fact. It is to the effect that the burden of proof as to any particular fact lies on the person who wishes to rely on its existence. Whoever has the obligation to convince the Court is the person said to bear the burden of proof. Thus, if one does not discharge the burden of proof, then one will not succeed as far as that fact is concerned.
12. In the instant case, it is undisputed that the Appellant terminated the master rental agreement sometime in August 2021. Further, that this was followed by a letter dated 31st August 2021 informing the Respondent of a refund amounting to Kshs.226, 756.62. This was pursuant to Clause 11.4 of the agreement with regards to termination.
13. On 12th January 2023, after the receipt of a demand letter from the Respondent, the Appellant wrote an email indicating that the letter of 31st August 2021 was erroneous. This was almost two years later. It is therefore the Court’s view that the narrative that the letter dated 31st August was erroneous is an afterthought. The Trial Court arrived at this decision since for almost two years there is no evidence that the Appellant had informed the Respondent that there was any error in the tabulation of the refund.
14. Further to the above, the evidence presented by the Appellant in support of its Counterclaim was a statement and it tabulates outstanding balances from the month of September 2021. Yet in the month of August when the Appellant terminated the contract, no claim was made against the Respondent.
b) Whether the Adjudicator erred in law by failing to consider the sworn testimony of the Appellant’s witness.
15. On the issue that the Adjudicator erred in law by failing to consider the sworn testimony of the Appellant’s witness; the Court points out that in its judgment, the Trial Court made reference to the Appellant’s testimony thus considered it.
16. In light of the above and on a balance of probabilities, the Appellant did not prove its case; thus, the Trial Court did not err in dismissing the Counterclaim.
17. It should also not be lost to the Appellant that an Appeal to this Court does not lie on issues of facts. What the Learned Adjudicator found based on facts stands. This Court will only interfere if the finding on facts is so perverse such that no reasonable Tribunal applying itself reasonably would have arrived at such a conclusion. See John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others [2018] eKLR.
18. It is notable that the Appellant in its submissions raised the issue of costs and argued that the Respondent is not entitled to costs as the Trial Court decree was silent on the same.
19. However, the court notes that the issue of costs was not raised in the Appellant’s grounds of appeal and has only been brought up in the submissions. The essence of pleadings, was succinctly set out by the Supreme Court of Kenya in its ruling in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR. The Supreme Court found and held as follows in an election petition: -
“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...”
20. The upshot is that the Appeal is found to be without any merit and is hereby dismissed.
21. As to costs the same follow the event. The successful Respondent is awarded costs.
Determination
22. The Appeal is dismissed in its entirety for lacking in merits.
23. The Costs of the Appeal are awarded to the Respondent.
24. It is so ordered.
Dated, Signed and Delivered at Milimani this 07th day of August, 2025.
Njoroge Benjamin K.
JUDGE
In the presence of
Miss Kimathi for the Appellant
Mr. Owino for the Respondent
Susan Nzioka - Court Assistant.
1. The Appellant herein appeals against the judgment of Hon. Judith Omollo delivered on 7th September 2023 in the Small Claims Court at Nairobi SCCOMM NO. E156 OF 2023 .
Background Facts
2. The Appellant filed the Memorandum of Appeal dated 27th September 2023. It appealed against a section of the judgment on the following grounds;
a) The Adjudicator erred in law and fact by dismissing the Appellant’s Counterclaim of Kshs.624, 607 on the ground that the Appellant did not produce any other documentation apart from its Statement of Accounts to justify the said amount.
b) The Adjudicator erred in law and fact by failing to consider the sworn testimony of the Appellant’s witness who further explained how the Counterclaim sum of Kshs.624, 607 was arrived at.
3. The Appellant prayed for orders that;
a) The Appeal be allowed as prayed.
b) The section of the judgment by the Adjudicator dated 7th September 2023 dismissing the Appellant’s Counterclaim be set aside.
c) The Court to award the Appellant the sum of Kshs.624,607 being the outstanding arrears owed by the Respondent.
d) The costs of the Appeal be awarded to the Appellant.
4. The Appeal was disposed of by way of written submissions which the Court has carefully considered alongside the Record of Appeal. The Court frames the following issues for determination;
a) Whether the Adjudicator erred in law by dismissing the Appellant’s Counterclaim.
b) Whether the Adjudicator erred in law by failing to consider the sworn testimony of the Appellant’s witness.
Analysis
5. This being an Appeal from the Small Claims Court, the duty of the Court is circumscribed under Section 38 of the Small Claims Court Act. It provides that the Appeal should be on matters of law.
6. This position has been elaborated in the case of Mwaura v Wambua (Commercial Appeal E003 of 2024) [2024] KEHC 13897 (KLR) (11 November 2024) (Judgment).
“This being an appeal from the Small Claims Court, the duty of the Court is circumscribed under Section 38 of the Small Claims Court Act which provides as doth:
A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
An appeal from any decision or order referred to in s Sub section (1) shall be final.
The duty of the court is to defer to the findings of fact of the adjudicator and analyse the matter for issues of law. The issues of law are either due to the subject matter or the finding of law by the court.”
7. What constitutes points of law, has been settled in the case of Peter Gichuki King'ara Vs IEBC & 2 Others, Nyeri Civil Appeal No. 31 Of 2013, (Court of Appeal) (Visram, Koome & Odek, JJA) Of 13.02.2014, where the Court of Appeal stated as follows: -
“[I]t is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanour, is an issue of law.”
a) Whether the Adjudicator erred in law by dismissing the Appellant’s Counterclaim.
8. With regard to the Counterclaim, the Appellant maintained that it provided evidence to support its Counterclaim of Kshs.624, 607. That the Respondent has not provided anything to disprove this claim. In addition, the Appellant submitted that the Respondent is not entitled to the remainder of the judgment sum of Kshs.226,756.62 as the same was erroneously computed by the Appellant.
9. The question, therefore is whether the Appellant proved its case against the Respondent on a balance of probabilities. The law is clear that he who alleges must prove. The term “Burden of Proof” is used to mean an obligation to adduce evidence of a fact.
10. Section 107 of Evidence Act defines Burden of Proof as– of the essence the burden of proof is proving the matter in court. Subsection (2) refers to the legal burden of proof.
11. Section 109 of the Evidence Act exemplifies the Rule in Section 107 of the Evidence Act on proof of a particular fact. It is to the effect that the burden of proof as to any particular fact lies on the person who wishes to rely on its existence. Whoever has the obligation to convince the Court is the person said to bear the burden of proof. Thus, if one does not discharge the burden of proof, then one will not succeed as far as that fact is concerned.
12. In the instant case, it is undisputed that the Appellant terminated the master rental agreement sometime in August 2021. Further, that this was followed by a letter dated 31st August 2021 informing the Respondent of a refund amounting to Kshs.226, 756.62. This was pursuant to Clause 11.4 of the agreement with regards to termination.
13. On 12th January 2023, after the receipt of a demand letter from the Respondent, the Appellant wrote an email indicating that the letter of 31st August 2021 was erroneous. This was almost two years later. It is therefore the Court’s view that the narrative that the letter dated 31st August was erroneous is an afterthought. The Trial Court arrived at this decision since for almost two years there is no evidence that the Appellant had informed the Respondent that there was any error in the tabulation of the refund.
14. Further to the above, the evidence presented by the Appellant in support of its Counterclaim was a statement and it tabulates outstanding balances from the month of September 2021. Yet in the month of August when the Appellant terminated the contract, no claim was made against the Respondent.
b) Whether the Adjudicator erred in law by failing to consider the sworn testimony of the Appellant’s witness.
15. On the issue that the Adjudicator erred in law by failing to consider the sworn testimony of the Appellant’s witness; the Court points out that in its judgment, the Trial Court made reference to the Appellant’s testimony thus considered it.
16. In light of the above and on a balance of probabilities, the Appellant did not prove its case; thus, the Trial Court did not err in dismissing the Counterclaim.
17. It should also not be lost to the Appellant that an Appeal to this Court does not lie on issues of facts. What the Learned Adjudicator found based on facts stands. This Court will only interfere if the finding on facts is so perverse such that no reasonable Tribunal applying itself reasonably would have arrived at such a conclusion. See John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others [2018] eKLR.
18. It is notable that the Appellant in its submissions raised the issue of costs and argued that the Respondent is not entitled to costs as the Trial Court decree was silent on the same.
19. However, the court notes that the issue of costs was not raised in the Appellant’s grounds of appeal and has only been brought up in the submissions. The essence of pleadings, was succinctly set out by the Supreme Court of Kenya in its ruling in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR. The Supreme Court found and held as follows in an election petition: -
“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...”
20. The upshot is that the Appeal is found to be without any merit and is hereby dismissed.
21. As to costs the same follow the event. The successful Respondent is awarded costs.
Determination
22. The Appeal is dismissed in its entirety for lacking in merits.
23. The Costs of the Appeal are awarded to the Respondent.
24. It is so ordered.
Dated, Signed and Delivered at Milimani this 07th day of August, 2025.
Njoroge Benjamin K.
JUDGE
In the presence of
Miss Kimathi for the Appellant
Mr. Owino for the Respondent
Susan Nzioka - Court Assistant.