Background:
1. This Appeal emanates from the judgement delivered on 23rd September 2024 whereby Judgement was entered in favour of the Appellant herein for a sum of Kshs.4,000/-with interest from 15th February 2024 and costs of Kshs.10,000/=.
2. The Brief facts of the case is from the pleadings is that Appellant entered into a contract with the Respondent for car hire of four overland tricks at the cost of Kshs. 55,000/=per day per truck for six days starting from 28th January 2024 until 2nd February 2024.
3. The Respondent requested the Appellant to make a deposit of Kshs.400,000/= for service, fuel and for the drivers for the first two days. The amount was paid. Before the trip the Appellant visited the destination to see whether the trucks would be suitable for the trips. However, they noted that the area had experienced heavy rains and concluded that the Respondent’s trucks would not be suitable for the purpose.
4. The Appellant in their pleadings avers that it notified the Respondent of the recission of the agreement and requested for their deposit of Kshs.400,000/=. The Respondent refunded Kshs.40,000/= and stated in a letter that they will pay the remaining Kshs.400,000/= in a duration of 2o months.
5. The payment plan was not acceptable to the Appellant hence they sued at the Small Claims Court for refund of the full amount.
6. The Respondent in their pleadings before the Trial Court admitted the undisputed facts and averred that it shared with the Appellant invoice duly communicating that cancellation policy which entails 100% forfeiture on deposit if the cancellation is done within 24hours,75% forfeiture for cancellation within 48 hours and 50% for cancellation within 73hours.
7. After the payment of the booking fees, the Respondent immediately cancelled previous bookings and the necessary works to prepare the truck for the trip commenced. On Saturday 27th January 2024 all was set for the departure on Sunday 28th January 2024. To her surprise the Appellant’s representative failed to show up and there was no communication whatsoever.
8. According to the Respondent the Appellant’s representative informed her on Monday 29th that there had been a change of plans and that they would only hire the truck for three days commencing that Wednesday on the allegations that they had visited the site and were apprehensive that the trucks would not sustain the terrain.
9. The Respondent denies any fault and blamed the Appellant for changing the plan earlier agreed upon which necessitated the revision of the agreed daily rates.
The Appeal.
10. The Appellants herein aggrieved by the decision preferred an appeal to this Court, the grounds of appeal are as follows:
(i) The learned Magistrate erred in law and fact by failing to consider the “terms and conditions “in a manner prejudicial to the Appellant. The Magistrate failed to acknowledge the ambiguity in cancellation charges being served on the Appellant as an afterthought post contract and did not correctly interpret its effect as a valid contract.
(ii) The Learned Magistrate erred in Law and fact by failing to consider the doctrine of frustration raised by the Appellant, despite the challenges in the terrain being unforeseeable and outside the Appellant’s control.
(iii) The Learned Magistrate erred failed to adequately consider the evidence presented by the Appellant, particularly with regard to condition of the terrain being affected by weather conditions which led to the inability to fulfil the contract, despite the Appellant in good faith.
(iv) The Learned magistrate failed to appreciate the admission of fault by the defendant in their letter proposing to settle the impugned amount through a payment plan addressed to the Appellant.
The Submissions:
11. The Appellant vide their submissions dated 12th September 2025 prayed that judgement be entered in their favour for a refund of Kshs.400,000/=. The Appellant faulted the Trial Court for holding that they were bound by terms and conditions not signed or expressly consented to.
12. The Appellant produced the WhatsApp exchanges evidencing the exchange of the trip details and that the receipt shared on 28th January 2024 simply read “terms and conditions at the bottom”.
13. The Appellant submits that the contractual terms are only binding if incorporated before the time of formation of the contract and that any terms introduced afterwards or concealed in a fine print cannot be enforced against an unsuspecting party.
14. It’s the Appellant’s submissions that the oral agreement between the parties was concluded on 25th January 2024 upon clear instructions and itinerary. The purported receipt No. 458 were issued afterwards as an afterthought without the Appellant’s consent.
15. The Appellant submitted that the Respondent’s liability to refund the deposit estopped her from denying liability. She relies on Section 120 of the Evidence Act. The Appellant submits that once a party makes unequivocal representation, he is stopped from denying if the other party has relied upon it.
16. The Appellant further faulted the Trial Court for failing to accord weight to the evidence on record. The Appellant faulted the Court for elevating unproven, unagreed and post deposit cancellation terms above clear evidence of the absence of any signed written or oral agreement or variation regarding the same.
17. The Respondent vide their submissions dated 20th January 2026 submitted that the Appellant’s submissions are written in a crafty manner misrepresenting the facts of the matter with the possible hope of misleading the Court.
18. The Respondent besides the undisputed background of the dispute submitted that they shared an invoice with the Appellant which duly spelt out the Respondent’s terms and conditions of engagement which included deposit amounting to 30%of the total sum in the event of premature cancellation.
19. The Respondent disputes the Appellant’s submission that the terms and conditions were contained in the receipt of payment and was therefore introduced post contract is absolutely and only aimed at misleading this Court. The Respondent submits that it is demonstrated from the record that the policy was in the invoice issued prior to payment of any deposits.
20. The Respondent submits that the Appellant’s representative did not show up on the departure date as intended with no prior communication. The Appellant representative only called the following day seeking to inform them that they wished to vary the agreed terms and would only hire the trucks for three days as opposed to the agreed six days.
21. The Respondent submits that was not agreeable to the new terms and was left with no choice but revise the daily agreed rate. The Respondent submits that allowing the Appeal would be greatly prejudicial to them since they have already born the burden of loss by virtue of the period, she had reserved trucks for the Appellants which didn’t earn them any money both to them and the third parties who they had sub hired the tracks from.
Analysis and Determination:
22. Having carefully perused the pleadings, the record of appeal, the trial Court’s judgment, and the parties’ submissions, this Court frames one issue for determination is whether the Trial Court erred in its decision.
23. The jurisdiction of this Court to entertain appeals from the Small Claims Court is strictly circumscribed by Section 38 of the Small Claims Court Act and are limited to matters of law and the appeal is final. Whereas there has been no universally accepted definition of the term ‘matters of law’, there has been some working definitions thereto. In Peter Gichuki King'ara vs. IEBC & 2 others, Nyeri Civil Appeal No. 31 of 2013, Court of Appeal held that a decision challenged on the basis of wrongful exercise of discretion raises a point of law.
24. The High Court, therefore, is duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses.
25. Having said so, since the instant appeal calls upon this Court to ascertain whether the trial Court properly handled the issue of burden of proof, then that is a matter of law. Sections 107, 108 and 109 of the Evidence Act deal with the burden of proof.
26. The Court has analyzed the record of appeal together with the submissions by both parties and notes that indeed it’s not disputed that money changed hands and that the Respondent refunded Kshs.40,000/=out of the 440,000/= paid to her.
27. From the letter 7th February 2024, the Respondent’s Advocates advised the Appellant’s advocates that the Respondent was willing to make the payment less 20% and that the Respondent was willing to pay the Sum of Kshs.320,000/=within the next sixteen months. This fact has not been disputed by the Respondent.
28. From pages 20 and 21 of the record of appeal, there’s an exchange of letters between the two parties and the Respondent’s rejection or admission of the letter dated 7th February 2024 would have shed light to the issue on this pertinent issue which forms integral part of this appeal.
29. The Respondent has not addressed this admission of repaying the Kshs.400,000/= despite being raised by the Appellant. It is worth noting that the communication was not on a “without prejudice basis’’ therefore it formed part of the evidence that ought to have been analyzed by the Trial Court. The Respondent simply submits that the Appellant’s submissions are written in a crafty manner without addressing the specific issues raised by the Appellant.
30. The Respondent also raised the issue of the Appellant failing to show up on the departure date and did not communicate beforehand. This Courts notes that the Appellant has also not demonstrated if indeed it communicated before the material day. Despite not showing up, the Respondent proceed and gave an undertaking that it is willing to refund the money.
31. The Trial Court rightfully held that the issue of the impassability of the terrain ought to have been ascertained by the Appellant before engaging the Respondent on the specific vehicle to be used. The Court rightfully rejected the argument of frustration.
32. The Court having analyzed the arguments notes it is undisputed that the trip did not take place as planned by the parties and parties engaged thereafter as engaged as evidenced in the communication.
33. This Court is of the view that the Trial Court ought to have addressed itself on all the issues raised by the Appellant in the claim including the exchanged letters on the amount to be refunded.
34. This Court faults the Trial Court for contradicting itself on its judgement; despite finding that the parties did not provide any contract which would show consequences of the cancellation it proceed to fault the Appellant. The Trial Court having found that there was no contract it should not have proceeded to issue the orders it did.
35. For the above reasons, this Court faults the findings of the Trial Court’s Judgment and set asides the same.
36. This Appeals succeeds, the Appellant is awarded Kshs.320,000/=. Being Kshs.400,000/= less 20%.
37. Each party will bear their costs of this Appeal.
38. DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 19th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Kado h/b Kouna Learned Counsel for the Appellant.
No appearance for the Respondent.
Michael – Court Assistant.
1. This Appeal emanates from the judgement delivered on 23rd September 2024 whereby Judgement was entered in favour of the Appellant herein for a sum of Kshs.4,000/-with interest from 15th February 2024 and costs of Kshs.10,000/=.
2. The Brief facts of the case is from the pleadings is that Appellant entered into a contract with the Respondent for car hire of four overland tricks at the cost of Kshs. 55,000/=per day per truck for six days starting from 28th January 2024 until 2nd February 2024.
3. The Respondent requested the Appellant to make a deposit of Kshs.400,000/= for service, fuel and for the drivers for the first two days. The amount was paid. Before the trip the Appellant visited the destination to see whether the trucks would be suitable for the trips. However, they noted that the area had experienced heavy rains and concluded that the Respondent’s trucks would not be suitable for the purpose.
4. The Appellant in their pleadings avers that it notified the Respondent of the recission of the agreement and requested for their deposit of Kshs.400,000/=. The Respondent refunded Kshs.40,000/= and stated in a letter that they will pay the remaining Kshs.400,000/= in a duration of 2o months.
5. The payment plan was not acceptable to the Appellant hence they sued at the Small Claims Court for refund of the full amount.
6. The Respondent in their pleadings before the Trial Court admitted the undisputed facts and averred that it shared with the Appellant invoice duly communicating that cancellation policy which entails 100% forfeiture on deposit if the cancellation is done within 24hours,75% forfeiture for cancellation within 48 hours and 50% for cancellation within 73hours.
7. After the payment of the booking fees, the Respondent immediately cancelled previous bookings and the necessary works to prepare the truck for the trip commenced. On Saturday 27th January 2024 all was set for the departure on Sunday 28th January 2024. To her surprise the Appellant’s representative failed to show up and there was no communication whatsoever.
8. According to the Respondent the Appellant’s representative informed her on Monday 29th that there had been a change of plans and that they would only hire the truck for three days commencing that Wednesday on the allegations that they had visited the site and were apprehensive that the trucks would not sustain the terrain.
9. The Respondent denies any fault and blamed the Appellant for changing the plan earlier agreed upon which necessitated the revision of the agreed daily rates.
The Appeal.
10. The Appellants herein aggrieved by the decision preferred an appeal to this Court, the grounds of appeal are as follows:
(i) The learned Magistrate erred in law and fact by failing to consider the “terms and conditions “in a manner prejudicial to the Appellant. The Magistrate failed to acknowledge the ambiguity in cancellation charges being served on the Appellant as an afterthought post contract and did not correctly interpret its effect as a valid contract.
(ii) The Learned Magistrate erred in Law and fact by failing to consider the doctrine of frustration raised by the Appellant, despite the challenges in the terrain being unforeseeable and outside the Appellant’s control.
(iii) The Learned Magistrate erred failed to adequately consider the evidence presented by the Appellant, particularly with regard to condition of the terrain being affected by weather conditions which led to the inability to fulfil the contract, despite the Appellant in good faith.
(iv) The Learned magistrate failed to appreciate the admission of fault by the defendant in their letter proposing to settle the impugned amount through a payment plan addressed to the Appellant.
The Submissions:
11. The Appellant vide their submissions dated 12th September 2025 prayed that judgement be entered in their favour for a refund of Kshs.400,000/=. The Appellant faulted the Trial Court for holding that they were bound by terms and conditions not signed or expressly consented to.
12. The Appellant produced the WhatsApp exchanges evidencing the exchange of the trip details and that the receipt shared on 28th January 2024 simply read “terms and conditions at the bottom”.
13. The Appellant submits that the contractual terms are only binding if incorporated before the time of formation of the contract and that any terms introduced afterwards or concealed in a fine print cannot be enforced against an unsuspecting party.
14. It’s the Appellant’s submissions that the oral agreement between the parties was concluded on 25th January 2024 upon clear instructions and itinerary. The purported receipt No. 458 were issued afterwards as an afterthought without the Appellant’s consent.
15. The Appellant submitted that the Respondent’s liability to refund the deposit estopped her from denying liability. She relies on Section 120 of the Evidence Act. The Appellant submits that once a party makes unequivocal representation, he is stopped from denying if the other party has relied upon it.
16. The Appellant further faulted the Trial Court for failing to accord weight to the evidence on record. The Appellant faulted the Court for elevating unproven, unagreed and post deposit cancellation terms above clear evidence of the absence of any signed written or oral agreement or variation regarding the same.
17. The Respondent vide their submissions dated 20th January 2026 submitted that the Appellant’s submissions are written in a crafty manner misrepresenting the facts of the matter with the possible hope of misleading the Court.
18. The Respondent besides the undisputed background of the dispute submitted that they shared an invoice with the Appellant which duly spelt out the Respondent’s terms and conditions of engagement which included deposit amounting to 30%of the total sum in the event of premature cancellation.
19. The Respondent disputes the Appellant’s submission that the terms and conditions were contained in the receipt of payment and was therefore introduced post contract is absolutely and only aimed at misleading this Court. The Respondent submits that it is demonstrated from the record that the policy was in the invoice issued prior to payment of any deposits.
20. The Respondent submits that the Appellant’s representative did not show up on the departure date as intended with no prior communication. The Appellant representative only called the following day seeking to inform them that they wished to vary the agreed terms and would only hire the trucks for three days as opposed to the agreed six days.
21. The Respondent submits that was not agreeable to the new terms and was left with no choice but revise the daily agreed rate. The Respondent submits that allowing the Appeal would be greatly prejudicial to them since they have already born the burden of loss by virtue of the period, she had reserved trucks for the Appellants which didn’t earn them any money both to them and the third parties who they had sub hired the tracks from.
Analysis and Determination:
22. Having carefully perused the pleadings, the record of appeal, the trial Court’s judgment, and the parties’ submissions, this Court frames one issue for determination is whether the Trial Court erred in its decision.
23. The jurisdiction of this Court to entertain appeals from the Small Claims Court is strictly circumscribed by Section 38 of the Small Claims Court Act and are limited to matters of law and the appeal is final. Whereas there has been no universally accepted definition of the term ‘matters of law’, there has been some working definitions thereto. In Peter Gichuki King'ara vs. IEBC & 2 others, Nyeri Civil Appeal No. 31 of 2013, Court of Appeal held that a decision challenged on the basis of wrongful exercise of discretion raises a point of law.
24. The High Court, therefore, is duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses.
25. Having said so, since the instant appeal calls upon this Court to ascertain whether the trial Court properly handled the issue of burden of proof, then that is a matter of law. Sections 107, 108 and 109 of the Evidence Act deal with the burden of proof.
26. The Court has analyzed the record of appeal together with the submissions by both parties and notes that indeed it’s not disputed that money changed hands and that the Respondent refunded Kshs.40,000/=out of the 440,000/= paid to her.
27. From the letter 7th February 2024, the Respondent’s Advocates advised the Appellant’s advocates that the Respondent was willing to make the payment less 20% and that the Respondent was willing to pay the Sum of Kshs.320,000/=within the next sixteen months. This fact has not been disputed by the Respondent.
28. From pages 20 and 21 of the record of appeal, there’s an exchange of letters between the two parties and the Respondent’s rejection or admission of the letter dated 7th February 2024 would have shed light to the issue on this pertinent issue which forms integral part of this appeal.
29. The Respondent has not addressed this admission of repaying the Kshs.400,000/= despite being raised by the Appellant. It is worth noting that the communication was not on a “without prejudice basis’’ therefore it formed part of the evidence that ought to have been analyzed by the Trial Court. The Respondent simply submits that the Appellant’s submissions are written in a crafty manner without addressing the specific issues raised by the Appellant.
30. The Respondent also raised the issue of the Appellant failing to show up on the departure date and did not communicate beforehand. This Courts notes that the Appellant has also not demonstrated if indeed it communicated before the material day. Despite not showing up, the Respondent proceed and gave an undertaking that it is willing to refund the money.
31. The Trial Court rightfully held that the issue of the impassability of the terrain ought to have been ascertained by the Appellant before engaging the Respondent on the specific vehicle to be used. The Court rightfully rejected the argument of frustration.
32. The Court having analyzed the arguments notes it is undisputed that the trip did not take place as planned by the parties and parties engaged thereafter as engaged as evidenced in the communication.
33. This Court is of the view that the Trial Court ought to have addressed itself on all the issues raised by the Appellant in the claim including the exchanged letters on the amount to be refunded.
34. This Court faults the Trial Court for contradicting itself on its judgement; despite finding that the parties did not provide any contract which would show consequences of the cancellation it proceed to fault the Appellant. The Trial Court having found that there was no contract it should not have proceeded to issue the orders it did.
35. For the above reasons, this Court faults the findings of the Trial Court’s Judgment and set asides the same.
36. This Appeals succeeds, the Appellant is awarded Kshs.320,000/=. Being Kshs.400,000/= less 20%.
37. Each party will bear their costs of this Appeal.
38. DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 19th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Kado h/b Kouna Learned Counsel for the Appellant.
No appearance for the Respondent.
Michael – Court Assistant.