"Being an Appeal against the Judgment by Hon. C.A. Okumu in Milimani SCCC No. E3287/2024 Delivered on 28th March, 2025) .
1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
3. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
4. In the primary suit, the Respondent (CW1) noticed that her house-G4 Muthangari Suites, has persistent leakages rendering the house uninhabitable. She instructed her caretaker to take the photographs of the damages. The claimant incurred a sum of Kshs104,000/ to repair the leakages including the cost of the Quantity Surveyor. The leakages were spilling from her neighbour who owns an apartment- G6 Muthangari Suites which is located above the Claimant’s property. Under cross examination, the Claimant said that there were leakages on the roof. The inspection of the damages was done in the presence of Alphonse, the Manager of G6. The Respondent was not involved as he was not co-operative.
5. Claimant 2 was the Quantity Surveyor. He was instructed by the Claimant to assess the damages in his apartment G4. He visited the apartment and after assessment, he compiled a report dated 16th May 2024. He assessed the cost at Kshs54,000/ for paint work, wardrobe repairs and cleaning. Under cross examination, the witness said that the estimations were subject to confirmation in the market with a thin variance in costs.
6. Witness 3 was the caretaker of the Claimant who states that he has been a Caretaker to the Claimant from 2023. He said that the old tenants vacated before repairs commenced on 16th July, 2024. Under cross examination, the witness said that he took over management of the G4 and took photos before repairs begun. He confirmed that the leakages were continuous and concentrated on the walls.
7. The Respondent’s Chairman(RW1) told court that he purchased the property in 2014 and after the warranty period of one year, he started getting complaints and informed the developer Qi Ye Company Limited. He made several contacts to the Developer without any response and he filed a suit in the Environment and Land Court Case Number 698/2015 and Qi Ye Company Limited was found to be culpable as there were structural defects.
8. Under cross examination, the witness said that he sued the developer in 2015 for loss of income, depreciation and reinstatement of the costs incurred by the Plaintiff.
9. Being aggrieved with the findings and judgement of the Trial Court, the appellant proffered an Appeal based on the following grounds;
a. The Honourable Magistrate erred in law by failing to recognize that the Small Claims Court has jurisdiction over matters forming the subject matter of this appeal.
b. The Honourable Magistrate misapplied section 12(1)© of the Small Claims Act which grants the Small Claims Court the power to hear and determine claims relating to loss and damage of any property, which is the predominant issue of the appellant’s case.
c. The Honourable Magistrate erred in law in dismissing the suit wholly and ordering parties to file the matter in a court of competent jurisdiction.
d. That the court failed to properly assess the case on its merits, further exposing the appellant’s property to more damage as a result of the Respondent’s negligent actions of failing, and /or refusing to repair their house.
10. Thereafter, parties agreed to file written submissions which I have taken into context in this judgement.
Analysis and Determination :
11. Section 38 of the Small Claims Court Act provides for the jurisdiction of this court in determining appeals from the Small Claims Court. It provides thus; -1. A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. 2.An appeal from any decision or order referred to in subsection (1) shall be final.” Consequently, it is pellucid, that the High Court is clothed with the jurisdiction to hear matters of law and nothing else. However, looking at the totality of the grounds by the appellant, I opine to collapse these grounds into one point of law; whether or not the Small Claims Court lacked Jurisdiction to hear the matter.
12. The authors Halsbury's Laws of England, 4th Edition Vol 37 Para 14, expounded on jurisdiction and stated that the jurisdiction of the court which is comprised within the term ‘inherent’ is that which enables it to fulfil itself, properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is part of procedural law, both civil and criminal, and not part of substantive law; it is exercisable by summary process, without plenary trial; it may be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties; it must be distinguished from the exercise of judicial discretion; it may be exercised even in circumstances governed by rules of court. The inherent jurisdiction of the court enables it to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process ... In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.
13. In the celebrated case of Owners of the Motor Vehicle M.V. Lillians Versus Caltex Oil (Kenya) Limited (1989) KLR1 , the Court of Appeal held that jurisdiction means the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the court is constituted and may be extended or restricted by the like mean. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the action and matters of which the particular court has cognizance of or as to the area over which the jurisdiction shall extend; or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal including an arbitrator depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction but except where the court or tribunal ha s been given power to determine conclusively whether the fact exists where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision a merit to nothing. Jurisdiction must be acquired before judgment. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Facts constitute the evidence before the court. The moment a court determines that it has no jurisdiction, it has to down its tools and proceed no further.
14. In Words and Phrases Legally defined, Volume 3: I – N , the Author recorded that the limits of Jurisdiction are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.
15. In the case of Macfoy Vs United Africa Ltd (1961) 3 All ER. 1169 Lord Denning MR said that, if an Act is void, then it is in law a nullity and not a mere irregularity. It is not only bad but incurably bad. There is no need for an order of the court to set it up aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expert it to stay there. It will collapse.
16. Equally, in the case of Kimani Wanyoike Versus Electoral Commission Civil Appeal No. 213 of 1995 (UR) the Court of Appeal ruled that where there is a law prescribed by either a constitution or an act of parliament governing a procedure for the redress of any particular grievance, that procedure should be strictly followed.
17. The jurisdiction of the Small Claims Courts are set out under section 12 of the Small Claims Courts Act; “12(1) Subject to this Act, the rules and any other law the court has jurisdiction to determine any civil claim relating to –a) A contract for sale and supply of goods or services, b).A contract relating to money held and received, c) Liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property, d) Compensation for personal injuries, and e) Set off and counter claim under any contract.”
18. Upon perusal of the Statement of Claim by the Claimant, note that each of the party has a distinct property. The claim is over leakages which has damaged the Claimant’s property. Consequently, the claim is a sum of Kshs104,000/= being the cost of repair of the damaged property. In respect to compensation of Kshs85,000/ per month from May 2023 to 28th March 2024, the prayer is subject to proof and no comment can be made at this stage. In any event, this is special damages which as by the trite law, must not only pleaded but must be specifically proved. I am not alone. In David Bagine Vs Martin Bundi [1997] eKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177) , where he held; “ The Plaintiffs must understand that if they bring actions for damages, it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.
19. In the event the special damages exceed Kshs1,000,000/ all is not lost. Article 165(6) of the Constitution confers upon the High Court jurisdiction to transfer a matter to and from the Small Claims Court. The transfer may be exercised at any stage on its own motion or through the application by either party.
20. In the case o f Hangzhou Agrochemicals Industries Ltd –Vs Panda Flowers Ltd (2012) eKLR the court held; “...I n my view, which view I gather from authorities and from the law, the court should consider such factors as the motive and the character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice, the expense which the parties in the case are likely to incur in transporting and marinating witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. If the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused. Being a discretionary power, the decision whether or not to exercise it depends largely on the facts and circumstances of a particular case”.
21. This claim is properly before the Small Claims Court.
22. Putting all these together, I make the following findings;
a. The Appeal is meritorious. I allow it.
b. I set aside the Judgement of the Small Claims Court delivered on 28th March, 2025.
c. The file is remitted back to the Small Claims Court for hearing, de novo.
d. Costs to await the outcome of the fresh hearing.
Judgement delivered in Court virtually in the absence of the parties and in the presence of Court Assistant, Mr Sagasi this 9th September, 2026.
1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
3. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
4. In the primary suit, the Respondent (CW1) noticed that her house-G4 Muthangari Suites, has persistent leakages rendering the house uninhabitable. She instructed her caretaker to take the photographs of the damages. The claimant incurred a sum of Kshs104,000/ to repair the leakages including the cost of the Quantity Surveyor. The leakages were spilling from her neighbour who owns an apartment- G6 Muthangari Suites which is located above the Claimant’s property. Under cross examination, the Claimant said that there were leakages on the roof. The inspection of the damages was done in the presence of Alphonse, the Manager of G6. The Respondent was not involved as he was not co-operative.
5. Claimant 2 was the Quantity Surveyor. He was instructed by the Claimant to assess the damages in his apartment G4. He visited the apartment and after assessment, he compiled a report dated 16th May 2024. He assessed the cost at Kshs54,000/ for paint work, wardrobe repairs and cleaning. Under cross examination, the witness said that the estimations were subject to confirmation in the market with a thin variance in costs.
6. Witness 3 was the caretaker of the Claimant who states that he has been a Caretaker to the Claimant from 2023. He said that the old tenants vacated before repairs commenced on 16th July, 2024. Under cross examination, the witness said that he took over management of the G4 and took photos before repairs begun. He confirmed that the leakages were continuous and concentrated on the walls.
7. The Respondent’s Chairman(RW1) told court that he purchased the property in 2014 and after the warranty period of one year, he started getting complaints and informed the developer Qi Ye Company Limited. He made several contacts to the Developer without any response and he filed a suit in the Environment and Land Court Case Number 698/2015 and Qi Ye Company Limited was found to be culpable as there were structural defects.
8. Under cross examination, the witness said that he sued the developer in 2015 for loss of income, depreciation and reinstatement of the costs incurred by the Plaintiff.
9. Being aggrieved with the findings and judgement of the Trial Court, the appellant proffered an Appeal based on the following grounds;
a. The Honourable Magistrate erred in law by failing to recognize that the Small Claims Court has jurisdiction over matters forming the subject matter of this appeal.
b. The Honourable Magistrate misapplied section 12(1)© of the Small Claims Act which grants the Small Claims Court the power to hear and determine claims relating to loss and damage of any property, which is the predominant issue of the appellant’s case.
c. The Honourable Magistrate erred in law in dismissing the suit wholly and ordering parties to file the matter in a court of competent jurisdiction.
d. That the court failed to properly assess the case on its merits, further exposing the appellant’s property to more damage as a result of the Respondent’s negligent actions of failing, and /or refusing to repair their house.
10. Thereafter, parties agreed to file written submissions which I have taken into context in this judgement.
Analysis and Determination :
11. Section 38 of the Small Claims Court Act provides for the jurisdiction of this court in determining appeals from the Small Claims Court. It provides thus; -1. A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. 2.An appeal from any decision or order referred to in subsection (1) shall be final.” Consequently, it is pellucid, that the High Court is clothed with the jurisdiction to hear matters of law and nothing else. However, looking at the totality of the grounds by the appellant, I opine to collapse these grounds into one point of law; whether or not the Small Claims Court lacked Jurisdiction to hear the matter.
12. The authors Halsbury's Laws of England, 4th Edition Vol 37 Para 14, expounded on jurisdiction and stated that the jurisdiction of the court which is comprised within the term ‘inherent’ is that which enables it to fulfil itself, properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is part of procedural law, both civil and criminal, and not part of substantive law; it is exercisable by summary process, without plenary trial; it may be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties; it must be distinguished from the exercise of judicial discretion; it may be exercised even in circumstances governed by rules of court. The inherent jurisdiction of the court enables it to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process ... In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.
13. In the celebrated case of Owners of the Motor Vehicle M.V. Lillians Versus Caltex Oil (Kenya) Limited (1989) KLR1 , the Court of Appeal held that jurisdiction means the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the court is constituted and may be extended or restricted by the like mean. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the action and matters of which the particular court has cognizance of or as to the area over which the jurisdiction shall extend; or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal including an arbitrator depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction but except where the court or tribunal ha s been given power to determine conclusively whether the fact exists where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision a merit to nothing. Jurisdiction must be acquired before judgment. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Facts constitute the evidence before the court. The moment a court determines that it has no jurisdiction, it has to down its tools and proceed no further.
14. In Words and Phrases Legally defined, Volume 3: I – N , the Author recorded that the limits of Jurisdiction are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.
15. In the case of Macfoy Vs United Africa Ltd (1961) 3 All ER. 1169 Lord Denning MR said that, if an Act is void, then it is in law a nullity and not a mere irregularity. It is not only bad but incurably bad. There is no need for an order of the court to set it up aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expert it to stay there. It will collapse.
16. Equally, in the case of Kimani Wanyoike Versus Electoral Commission Civil Appeal No. 213 of 1995 (UR) the Court of Appeal ruled that where there is a law prescribed by either a constitution or an act of parliament governing a procedure for the redress of any particular grievance, that procedure should be strictly followed.
17. The jurisdiction of the Small Claims Courts are set out under section 12 of the Small Claims Courts Act; “12(1) Subject to this Act, the rules and any other law the court has jurisdiction to determine any civil claim relating to –a) A contract for sale and supply of goods or services, b).A contract relating to money held and received, c) Liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property, d) Compensation for personal injuries, and e) Set off and counter claim under any contract.”
18. Upon perusal of the Statement of Claim by the Claimant, note that each of the party has a distinct property. The claim is over leakages which has damaged the Claimant’s property. Consequently, the claim is a sum of Kshs104,000/= being the cost of repair of the damaged property. In respect to compensation of Kshs85,000/ per month from May 2023 to 28th March 2024, the prayer is subject to proof and no comment can be made at this stage. In any event, this is special damages which as by the trite law, must not only pleaded but must be specifically proved. I am not alone. In David Bagine Vs Martin Bundi [1997] eKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177) , where he held; “ The Plaintiffs must understand that if they bring actions for damages, it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.
19. In the event the special damages exceed Kshs1,000,000/ all is not lost. Article 165(6) of the Constitution confers upon the High Court jurisdiction to transfer a matter to and from the Small Claims Court. The transfer may be exercised at any stage on its own motion or through the application by either party.
20. In the case o f Hangzhou Agrochemicals Industries Ltd –Vs Panda Flowers Ltd (2012) eKLR the court held; “...I n my view, which view I gather from authorities and from the law, the court should consider such factors as the motive and the character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice, the expense which the parties in the case are likely to incur in transporting and marinating witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. If the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused. Being a discretionary power, the decision whether or not to exercise it depends largely on the facts and circumstances of a particular case”.
21. This claim is properly before the Small Claims Court.
22. Putting all these together, I make the following findings;
a. The Appeal is meritorious. I allow it.
b. I set aside the Judgement of the Small Claims Court delivered on 28th March, 2025.
c. The file is remitted back to the Small Claims Court for hearing, de novo.
d. Costs to await the outcome of the fresh hearing.
Judgement delivered in Court virtually in the absence of the parties and in the presence of Court Assistant, Mr Sagasi this 9th September, 2026.