Kanyori v Eringo (Civil Appeal E632 of 2022) [2024] KEHC 9280 (KLR) (Civ) (15 July 2024) (Judgment)
Neutral citation:
[2024] KEHC 9280 (KLR)
Republic of Kenya
Civil Appeal E632 of 2022
H Namisi, J
July 15, 2024
Between
Ann Wanjiku Kanyori
Appellant
and
Elijah Mukiira Eringo
Respondent
(Being an Appeal against the Judgement and decree of Hon. Martin Mutua, Resident Magistrate delivered on 22nd October 2021 in SCCC No. 310 of 2021))
Judgment
1.This is an appeal against the judgement of Hon. Martin Mutua, Adjudicator, in which the Appellant has raised the following grounds:i.That the learned Magistrate erred in law by omitting to take into account that it was the Respondent who breached the contractual terms of the sale of the car wash by his inability or refusal to complete payment of the purchase price and was not therefore entitled to benefit from his own default;ii.That the learned Magistrate erred in law by his completed failure to take into account the fact that the Respondent had benefited from the use of the car wash for two years and that in law the earnings for that period ought to have been set off against any claim against the Appellant’iii.That the learned Magistrate did not take into account the Appellant’s counterclaim/set off and which was a misdirection in law on the part of the trial Magistrate;iv.That the learned Magistrate misdirected himself in law by taking into account matters that were extraneous to the issue before him when he took into account the sale of the car wash to a third party while this was irrelevant in law to the dispute before the trial Magistrate;
2.Parties canvassed the Appeal by way of written submissions.
3.In her submissions dated 22nd May 2024, the Appellant relied on the case of Chase International Investment & Anor -vs- To Laxman Keshra & 3 Others in which the Court of Appeal addressed the issue of unjust enrichment. It was the Appellant’s submission that the Adjudicator erred in law by failing to apply the principle of unjust enrichment, which is a matter of law.
4.On his part, the Respondent filed his submissions dated 16th May 2024 and submitted that this Court has no jurisdiction to hear and determine this appeal on matters of fact. The Respondent relied on several cases, including Owners of Motor Vessel “Lillian S’ -vs- Caltex Oil (Kenya) Ltd [1989] eKLR, on the issue of jurisdiction.
5.Section 38 of the Small Claims Court Act provides as follows:1.A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law;2.An appeal from any decision or order referred to in sub section (1) shall be final.
6.In the case of Otieno, Ragot & Company Advocates -vs- National Bank Kenya Ltd [2020] eKLR, the Court of Appeal addressed the duty of a court considering points of law.
7.Similarly in the case of Mwita v Woodventure (K) Limited & another (Civil Appeal 58 of 2017) [2022] KECA 628 (KLR) (8 July 2022) (Judgment), the Court of Appeal stated:
8.The duty of this Court in this instance is similar to that stated herein above, which is essentially on points of law. In the case of J N & 5 Others -vs- Board of Management, St. G School Nairobi & Another [2017] eKLR, in addressing a point of law and a point of fact, Justice Mativo stated thus:
9.Turning to the grounds of appeal, these relate primarily to questions of fact and evidence before the trial court. The trial court is entitled to evaluate the evidence and determine the evidence that it believes. The trial court cannot be faulted for reaching the decision it did based on the evidence that was presented before it.
10.The Appellant has not raised a single issue of law.
11.The upshot of the foregoing is that the Appeal lacks merit and is consequently dismissed with costs of Kshs 40,000/= to the Respondent.
DATED AND DELIVERED AT NAIROBI THIS 15 DAY OF JULY 2024.HELENE R. NAMISIJUDGE