(Being an Appeal against the Judgment and Decree of Small Claims Court by Hon. Antoinette Z. Ogange in Nairobi SCCC No. E7248/2023 delivered on 13th December, 2023) .
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, Elvis Githinji (CW1) on behalf of the Claimant adopted his witness statement and said that he is a director of the Claimant Company which deals with Transport Logistics and Associated Services. The Respondent contracted the Claimant over the period between November 2017 to October 2022, to supply them with Motor Vehicles for personal movement. Despite delivery of services, the Respondent has declined to remit a sum of Kshs107,500/ being the amounts outstanding for the services rendered. However, the claim falling within 6 years is Kshs77,410/= which arise from car rental and damages and Kshs61,000/ for car rental but the difference is for damages.
5. Under cross examination, the claimant says that they have not been paid from November, 2017 and confirmed that he has been demanding the payments six (6) years later.
6. In support of their case, the Claimant adduced copy of the claimant company as exhibit 1, copy of the demand letters as exhibit 2, copies of email correspondences as exhibit 3 and copies of the invoices as exhibit 4.
7. Amos Okinyi(RW1) on behalf of the respondent recorded a witness statement which he adopted as his testimony. He said that indeed there was a contract for the Respondent to hire Motor Vehicles from the Claimant for the provision of Car Hire Services on need basis as per the rates outlined in the contract.
8. In the contract among the agreed terms were;
a. The respondent would refuel the Motor Vehicles upon completion of the hire period and would return the Motor Vehicle at full tank to the Claimant.
b. Where hired vehicle sustained damage, while in the custody of the Respondent, the claimant would communicate to the respondent about the extend of damages and assessment of repairs before undertaking the repairs. The Respondent would then authorize then repairs and settle the invoices.
c. The Claimant would raise an invoice after each vehicle hire and all accounts would be cleared within 30 days of the receipt of the invoice, by way of cheque or direct bank transfer.
9. The Respondent has promptly paid for the car hire services and all other related invoices were settled by the Respondent. However, the Claimant had not previously communicated to the Respondents about any damages that any of the hired Motor Vehicles may have sustained while under the use of the Respondent and has not received any requests from the Claimant to undertake any repairs or maintenance. In support of the evidence, the Respondent produced the Contract between the parties as exhibit 1, current account for the Claimant Company as exhibit 2 and a response to the demand letter dated 25th September, 2023 as Exhibit 3.
10. Under cross examination, the witness said that clause 5 meant that upon completion of car hire, the lessor was supposed to invoice the bank and payment be made within 30 days. Some of the invoices were produced and no objection was ever raised.
11. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal based on the following grounds;
a. That the Learned Adjudicator erred in law and fact by holding the existence of a contract despite the Claimant failing to discharge its legal and evidentiary burden to prove the existence of all the essential elements of a valid contract.
b. That the Learned Adjudicator misapplied the law on discharging the evidential and legal burden of proof, in particular section 107, 108 and 109 of the Evidence Act.
c. That the Learned Adjudicator erred in law and fact by finding that the Claimant discharged its evidentiary and legal burden of proof.
d. That the Learned Adjudicator erred in law and fact by failing to appreciate that the subject invoices were not payable.
e. That the Learned Adjudicator erred in law and fact by failing to consider clause 3, 5 and 7 of the Service Level Agreement between the Claimant and the Respondent.
f. That the Learned Adjudicator erred in law and fact by failing to consider schedule 1(e), 1(i), 1(j) and Schedule 11(e), and 11(h) of the Service Level Agreement between the Claimant and the Respondent.
g. That the Learned Adjudicator erred in law and fact by failing to consider pleadings, evidence on record and the submissions.
h. That the Learned Adjudicator erred in law and fact by going beyond the pleadings when it found that the Respondent was estopped from claiming that invoices could not be settled outside the 30 windows upon presentation of the invoice for payment, when this was not in contention by the Claimant.
12. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
13. 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 Respondent proved its case on a balance of probability.
14. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: “ Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.” Section 109 states that “ the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person” Section 112 reads “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.”
15. In Anne Wambui Ndiritu Vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: “ As a general proposition under section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
16. Many are the decisions on contracts and whereas I may not be able to exhaustively sample them in this Judgement, I find the following passages apposite to act as my anchorage;
a. In Rufale Vs Umon Manufacturing Co. (Ramsboltom) (1918) L.R 1KB 592, Scrutton L.J. held as follows: “The first thing is to see what the parties have expressed in the contract and then an implied term is not to be added because the court thinks it would have been reasonable to have inserted it in the contract.”
b. In the case of Attorney General of Belize et al Vs Belize Telecom Ltd & Another (2009), 1WLR 1980 at page 199 3, citing Lord Person in T rollope Colls Ltd Vs North West Metropolitan Regional Hospital Board (1973) I WLR 601 at 609, held as follows: “ The court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves. If the express terms are perfectly clear and from ambiguity, there is no choice to be made between different meanings. The clear terms must be applied even if the court thinks some other terms could have been more suitable.”
c. The importance of interpreting contracts strictly was further reiterated in the case of Curtis Vs Chemical Cleaning & Dyeing Co. Ltd (1951), ALL ER 631 in which Lord Denning held as follows: “If a party affected signs a written document, knowing it to be a contract which governs the relations between him and the other party, his signature is irrefragable evidence of his assent to the whole contract, including exception clauses, unless the signature is shown to be obtained by fraud or misrepresentation.”
17. The claim arises out of a contract and as such, the court must be cautious not to re-write a contract for the parties. Put differently, the court shall at all times in the absence of any contrary evidence, be guided by the terms of the contract in any contractual claim and give effect to the intentions of the parties as set out in their contract.
18. Undisputedly, parties in this claim agreed to set out the terms in their agreement dated 1st day of October 2015. The relevant provisions of the contract to the claim at hand is captured under Clause 5 and Clause 7. Clause 5 reads “The lessee shall raise an invoice after each vehicle hire and all accounts shall be cleared within 30 days of receipt of then invoice, by way of cheque or direct bank transfer” Clause 7 reads “during the period of hire, should there be an accident involving the car hired out which makes the immediate use of the same impossible either to the lessor or lessee, the parties agree that until the repair of the same on a time frame given by the garage as per the assessor, the lessor will provide an alternative car to the lessee at no additional cost upon due notification and request for the same. If the estimated repair period given by the garage or the assessor lapses then the lessee shall be entitled to a replacement car from the lessor at no further cost.”
19. Schedule 11(h) provides for the lessee obligations which reads “meet the cost and expenses related to damage to the cars that may be occasioned by reckless or careless driving or the condition of works and roads during the period of hire. This relates to minor damages where the cost of repair might be less than paying excess.”
20. Now, pertaining to this claim, is a sum of Kshs107,500/. However, some of the invoices which fell outside the 6-year period formed part of the material in the computation. Indeed, that ought not to have been included. The invoices that fell within the timelines of the claim and duly received by the appellant amounted to Kshs69,280/which the Respondent was entitled under the terms of agreement.
21. When a by-stander reads the relevant terms of the agreement, what comes out is, that upon presentation of the invoice, it was an obligation on the part of the Appellant to settle the claim within 30 days. If it failed to honour its obligation as per the contract, then the Respondent was at liberty to file suit in court within 6 years for the recovery of the monies. The appellant did not honour their part of the bargain and the Respondent was at liberty to file this claim.
22. Putting all these together, I make the following findings;
a. The Appeal lacks merit and it is dismissed.
b. The judgement of the lower court is upheld.
c. Cost of the Appeal to the Respondent.
Judgement delivered in Court virtually in the presence of the parties and in the presence of Mr Sagai-Court Assistant 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, Elvis Githinji (CW1) on behalf of the Claimant adopted his witness statement and said that he is a director of the Claimant Company which deals with Transport Logistics and Associated Services. The Respondent contracted the Claimant over the period between November 2017 to October 2022, to supply them with Motor Vehicles for personal movement. Despite delivery of services, the Respondent has declined to remit a sum of Kshs107,500/ being the amounts outstanding for the services rendered. However, the claim falling within 6 years is Kshs77,410/= which arise from car rental and damages and Kshs61,000/ for car rental but the difference is for damages.
5. Under cross examination, the claimant says that they have not been paid from November, 2017 and confirmed that he has been demanding the payments six (6) years later.
6. In support of their case, the Claimant adduced copy of the claimant company as exhibit 1, copy of the demand letters as exhibit 2, copies of email correspondences as exhibit 3 and copies of the invoices as exhibit 4.
7. Amos Okinyi(RW1) on behalf of the respondent recorded a witness statement which he adopted as his testimony. He said that indeed there was a contract for the Respondent to hire Motor Vehicles from the Claimant for the provision of Car Hire Services on need basis as per the rates outlined in the contract.
8. In the contract among the agreed terms were;
a. The respondent would refuel the Motor Vehicles upon completion of the hire period and would return the Motor Vehicle at full tank to the Claimant.
b. Where hired vehicle sustained damage, while in the custody of the Respondent, the claimant would communicate to the respondent about the extend of damages and assessment of repairs before undertaking the repairs. The Respondent would then authorize then repairs and settle the invoices.
c. The Claimant would raise an invoice after each vehicle hire and all accounts would be cleared within 30 days of the receipt of the invoice, by way of cheque or direct bank transfer.
9. The Respondent has promptly paid for the car hire services and all other related invoices were settled by the Respondent. However, the Claimant had not previously communicated to the Respondents about any damages that any of the hired Motor Vehicles may have sustained while under the use of the Respondent and has not received any requests from the Claimant to undertake any repairs or maintenance. In support of the evidence, the Respondent produced the Contract between the parties as exhibit 1, current account for the Claimant Company as exhibit 2 and a response to the demand letter dated 25th September, 2023 as Exhibit 3.
10. Under cross examination, the witness said that clause 5 meant that upon completion of car hire, the lessor was supposed to invoice the bank and payment be made within 30 days. Some of the invoices were produced and no objection was ever raised.
11. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal based on the following grounds;
a. That the Learned Adjudicator erred in law and fact by holding the existence of a contract despite the Claimant failing to discharge its legal and evidentiary burden to prove the existence of all the essential elements of a valid contract.
b. That the Learned Adjudicator misapplied the law on discharging the evidential and legal burden of proof, in particular section 107, 108 and 109 of the Evidence Act.
c. That the Learned Adjudicator erred in law and fact by finding that the Claimant discharged its evidentiary and legal burden of proof.
d. That the Learned Adjudicator erred in law and fact by failing to appreciate that the subject invoices were not payable.
e. That the Learned Adjudicator erred in law and fact by failing to consider clause 3, 5 and 7 of the Service Level Agreement between the Claimant and the Respondent.
f. That the Learned Adjudicator erred in law and fact by failing to consider schedule 1(e), 1(i), 1(j) and Schedule 11(e), and 11(h) of the Service Level Agreement between the Claimant and the Respondent.
g. That the Learned Adjudicator erred in law and fact by failing to consider pleadings, evidence on record and the submissions.
h. That the Learned Adjudicator erred in law and fact by going beyond the pleadings when it found that the Respondent was estopped from claiming that invoices could not be settled outside the 30 windows upon presentation of the invoice for payment, when this was not in contention by the Claimant.
12. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
13. 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 Respondent proved its case on a balance of probability.
14. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: “ Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.” Section 109 states that “ the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person” Section 112 reads “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.”
15. In Anne Wambui Ndiritu Vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: “ As a general proposition under section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
16. Many are the decisions on contracts and whereas I may not be able to exhaustively sample them in this Judgement, I find the following passages apposite to act as my anchorage;
a. In Rufale Vs Umon Manufacturing Co. (Ramsboltom) (1918) L.R 1KB 592, Scrutton L.J. held as follows: “The first thing is to see what the parties have expressed in the contract and then an implied term is not to be added because the court thinks it would have been reasonable to have inserted it in the contract.”
b. In the case of Attorney General of Belize et al Vs Belize Telecom Ltd & Another (2009), 1WLR 1980 at page 199 3, citing Lord Person in T rollope Colls Ltd Vs North West Metropolitan Regional Hospital Board (1973) I WLR 601 at 609, held as follows: “ The court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves. If the express terms are perfectly clear and from ambiguity, there is no choice to be made between different meanings. The clear terms must be applied even if the court thinks some other terms could have been more suitable.”
c. The importance of interpreting contracts strictly was further reiterated in the case of Curtis Vs Chemical Cleaning & Dyeing Co. Ltd (1951), ALL ER 631 in which Lord Denning held as follows: “If a party affected signs a written document, knowing it to be a contract which governs the relations between him and the other party, his signature is irrefragable evidence of his assent to the whole contract, including exception clauses, unless the signature is shown to be obtained by fraud or misrepresentation.”
17. The claim arises out of a contract and as such, the court must be cautious not to re-write a contract for the parties. Put differently, the court shall at all times in the absence of any contrary evidence, be guided by the terms of the contract in any contractual claim and give effect to the intentions of the parties as set out in their contract.
18. Undisputedly, parties in this claim agreed to set out the terms in their agreement dated 1st day of October 2015. The relevant provisions of the contract to the claim at hand is captured under Clause 5 and Clause 7. Clause 5 reads “The lessee shall raise an invoice after each vehicle hire and all accounts shall be cleared within 30 days of receipt of then invoice, by way of cheque or direct bank transfer” Clause 7 reads “during the period of hire, should there be an accident involving the car hired out which makes the immediate use of the same impossible either to the lessor or lessee, the parties agree that until the repair of the same on a time frame given by the garage as per the assessor, the lessor will provide an alternative car to the lessee at no additional cost upon due notification and request for the same. If the estimated repair period given by the garage or the assessor lapses then the lessee shall be entitled to a replacement car from the lessor at no further cost.”
19. Schedule 11(h) provides for the lessee obligations which reads “meet the cost and expenses related to damage to the cars that may be occasioned by reckless or careless driving or the condition of works and roads during the period of hire. This relates to minor damages where the cost of repair might be less than paying excess.”
20. Now, pertaining to this claim, is a sum of Kshs107,500/. However, some of the invoices which fell outside the 6-year period formed part of the material in the computation. Indeed, that ought not to have been included. The invoices that fell within the timelines of the claim and duly received by the appellant amounted to Kshs69,280/which the Respondent was entitled under the terms of agreement.
21. When a by-stander reads the relevant terms of the agreement, what comes out is, that upon presentation of the invoice, it was an obligation on the part of the Appellant to settle the claim within 30 days. If it failed to honour its obligation as per the contract, then the Respondent was at liberty to file suit in court within 6 years for the recovery of the monies. The appellant did not honour their part of the bargain and the Respondent was at liberty to file this claim.
22. Putting all these together, I make the following findings;
a. The Appeal lacks merit and it is dismissed.
b. The judgement of the lower court is upheld.
c. Cost of the Appeal to the Respondent.
Judgement delivered in Court virtually in the presence of the parties and in the presence of Mr Sagai-Court Assistant this 9th September, 2026.