Noor Aluminium & General Hardware Ltd v Hydro Aluminium Ltd (Civil Appeal E749 of 2023) [2025] KEHC 10690 (KLR) (Civ) (21 July 2025) (Judgment)
Neutral citation:
[2025] KEHC 10690 (KLR)
Republic of Kenya
Civil Appeal E749 of 2023
DKN Magare, J
July 21, 2025
Between
Noor Aluminium & General Hardware Ltd
Appellant
and
Hydro Aluminium Ltd
Respondent
(Appeal from the Judgment and decree of the Honourable V.M. Mochache, RM/Adjudicator given on 24.03.2023 in Milimani SCC COMM. No. E7846 of 2022)
Judgment
1.This is an appeal from the Judgment and decree of the Honourable V.M. Mochache, RM/Adjudicator given on 24.03.2023 in Milimani SCC COMM. No. E7846 of 2022. The court shall be dismissing the appeal shortly. The Appellant was the Respondent in the Small Claims Court.
2.The matters in the claim and response are not in dispute. The only issue raised in this appeal is that the decision of the court was made after expiry of 60 days from the date of filing. The claim was based on goods sold between 2021 and 2022 to the Appellant for a sum of Ksh. 265,978.42. These goods were in respect of invoices numbers 5810, 6162, and 6164. The invoices and sales orders were filed.
3.A response was filed by the appellant stating the payments for 230,178/= were made for these invoices. They disputed certain interest of 3% for delayed payments. This however is not the dispute in court. Upon the matter being concluded, each party filed submissions. Their argument was that payments were made. They sought dismissal. It is not necessary to go into what the Respondent stated.
4.The question whether the matter had exceeded its time was not raised at any stage and was not part of the questions left for the court to determine. Upon the court considering submissions, the court, pursuant to Section 32 of the Small Claims Act found in favour of the respondent. There is no factual dispute or any legal dispute from the determination by the court.
5.The Appellant filed an appeal and set out 4 grounds of appeal, which I do not wish to set out in this appeal as they are repetitive. The first ground is otiose as it does not raise the question of law that errors occurred in. Only grounds 2-4 were available. They raised a question as to the effluxion of time as at 13.02.2023.
Submissions
6.This appeal was argued by way of written submissions. The parties filed acres of submissions on what is essentially a question of law. The appellant argued that as the first appellate court, this court has a duty to re-evaluate evidence. They relied on the decision of the supreme court of India in Santosh Hazari vs Purushottam Tiwari (Dead), AIR 2001 Supreme Court 965, 2001 (3) SCC 179. It was then posited that the jurisdiction of the court is set out in Section 38 of the Small Claims Act. The court was invited, but declines to re-evaluate evidence as this is not in tandem with the aforesaid section.
7.In respect to the matters in issue, reliance was placed in Section 34 of the Small Claims Court Act, and stated that the claim was filed on 13.12.2024 and concluded outside the stipulated time on 24.03.2023. They relied on a case of Aprim Consultants v Parliamentary Service Commission & another [2021] KECA 1090 (KLR), where the Court of Appeal set aside a decision of the High Court by stating as doth:Our reading of the Act is that the High Court was under an express duty to make its determination within the time prescribed. During such time did its jurisdiction exist, but it was a time-bound jurisdiction that ran out and ceased by effluxion of time. The moment the 45 days ended, the jurisdiction also ended. Thus, any judgment returned outside time would be without jurisdiction and therefore a nullity, bereft of any force or effect in law.
8.They also relied on the decision of my sister Gichohi, J in High Court in Kartar Singh Dhupar & Company Limited v ARM Cement PLC (In Liquidation) [2023] KEHC 2417 (KLR).
9.The respondent wrote a thesis for submissions. It is a 31 paragraph 9 page monolith. They sought to rely on Section 38 of the Small Claims Court Act to maintain that the court’s jurisdiction is on matters of law only. They relied on what they indicated to be emerging local jurisprudence. Reliance was placed on the decision of D.S. Majanja, in the case of Lumumba v Rift Gas Limited [2023] KEHC 25998 (KLR) and Crown Beverages Limited v MFI Document Solutions Limited [2023] KEHC 58 (KLR).
10.It was their case that the small claims court does not set out consequences for failure to comply while the Public Procurement and Asset Disposal Act, 2015 provides for consequences. They reiterated their submissions that the use of the words, so far as practicable connotes flexibility. They then went into the factual context of the delay.
11.They further relied on the case of Kituo Cha Sheria v Gil Adiz Advertising Company Ltd [2023] KEHC 25743 (KLR), where this court stated that there must be demonstration of prejudice. They were happy with the holding in Kartar Singh Dhupar & Company Limited v ARM Cement PLC (In Liquidation) [2023] KEHC 2417 (KLR) to the effect that:
12.The Respondent set out in extensio my own decision in Biosystems Consultants v Nyali Links Arcade (Civil Appeal E185 of 2023) [2023] KEHC 21068 (KLR) (31 July 2023) (Ruling) Neutral citation: [2023] KEHC 21068 (KLR), where this court addressed the foregoing issue as follows:
13.They relied on the case of Nyagwoka Ogora Alias Kennedy Kemoni Bwogora V Francis Osoro Marko [2004] KECA 14 (KLR), where Court of Appeal, [R.S.C Omolo. E.M. Githinji,JJA and A.G. Ringera Ag. JA] addressed the issue of timelines for delivery of judgment as follows:
14.The respondent prayed for the appeal to be dismissed with costs.
Analysis
15.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:(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.
16.However, an appeal of this nature is on points of law. It can be pure points of law or mixed points of law but points of law it is. An appeal on points of law is akin to a second appeal to the Court of Appeal. The duty of a second appeal was set out in the case of M/s Otieno, Ragot & Company Advocates vs National Bank of Kenya Limited [2020] eKLR: -
17.Then what constitutes a point of law? In Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR, the court stated as doth: -
18.In Peter Gichuki King'ara Vs Iebc & 2 Others, Nyeri Civil Appeal No. 31 of 2013 (Court of Appeal) (Visram, Koome & Odek, JJA) on 13.02.2014, the court held as follows: -
19.The main issue for determination in this case is whether the trial court erred in law in failing to dismiss the suit for being determined outside the 60 days provided under section 34 of the Small Claims Act which provides as follows:(1)All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day to day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.(2)Judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing.(3)The Court may only adjourn the hearing of any matter under exceptional and unforeseen circumstances which shall be recorded and be limited to a maximum of three adjournments.(4)When considering whether to allow an adjournment on the grounds of exceptional and unforeseen circumstances referred to in subsection (3), the court may in particular take into consideration where appropriate any of the following exceptional and unforeseen circumstances—(a)the absence of the parties concerned or their advocate or other participants to the proceedings required to appear in court for justified personal reasons which may include sickness, death, accident or other calamities;(b)an application by a party for the Adjudicator to withdraw from hearing the matter;(c)a request by parties to settle the matter out of court;(d)an appeal filed in the matter where orders of stay of proceedings have been granted;(e)an application by a party to summon new witnesses to court,collect new evidence, new inspection or evaluation or supplementaryinvestigation on the subject matter of the case; and(f)any other exceptional and unforeseen circumstances which in theopinion of the court justifies or warrants an adjournment.
20.The two sub-issues that arose in this matter relate to the timelines and the second is on whether this is a question properly before the court. The submissions filed in the small claims court did not raise the question of time lines at all. The question of time lines was not an issue submitted to the court for adjudication on 28.2.2023 when the court reserved the date for ruling. It is thus not an issue for the appeal. It is an issue arsing for the first time during the appeal. Secondly, even where the issue is raised, jurisprudence from both this court and the Court of Appeal is fairly crystalised on the subject of delayed decisions. In the case of Sugut v Jemutai & 3 others (Civil Appeal 110 of 2018) [2023] KECA 202 (KLR) (17 February 2023) (Judgment) Neutral citation: [2023] KECA 202 (KLR), the Court of Appeal addressed a question of delay in delivering of judgment as follows:
21.I agree with FROO Olel, J in his holding in the case of Trundell v EWK (Minor suing through mother and next friend WK) (Civil Appeal E57 of 2021) [2023] KEHC 25275 (KLR) (7 November 2023) (Judgment), where he posited as follows as regards to unpleaded issues:
22.In spite of 60 days having run out as at the time the Appellant was testifying, he did not raise any issue. He was raising questions of fact, which the court found were not sufficient to displace the solid case before her.
23.Secondly, even if the issue had been raised, there is no question of law relating to conclusion of the case within 60 days. Unlike other time bound legislation, the Small Claims Act requires that the decision be made as is practicable. This question has been dealt by courts and fairly settled. D.S. Majanja, in the case of Lumumba v Rift Gas Limited [2023] KEHC 25998 (KLR) stated that:
24.The court must consider the provisions of section 34 within its broader context, guided by key principles such as ensuring that all proceedings are resolved promptly and in the most cost-effective manner possible. There is no useful purpose to be served if the parties were to be retuned to do the case afresh, when the results are not in dispute. In the case of Crown Beverages Limited v MFI Document Solutions Limited [2023] KEHC 58 (KLR), where DS Majanja J Posited as doth:9.Although section 34(2) of the SCCA is couched in mandatory terms, the court must look at the context of the provision in light of the guiding principles which include, inter alia, the timely disposal of all proceedings before the court using the least expensive method. The provision as to delivery of judgment is meant to be directory and not mandatory as it is not the intention of the SCCA to invalidate any proceedings that violate the statutory timelines. To adopt such a position would undermine the statutory objects and cause injustice to the parties as the case would have to be reheard.10.The issue of breach of timelines for delivery of judgment is not a novel issue and has been dealt with by our courts in reference to order 21 rule 1 of the Civil Procedure Rules which provides that judgments must be delivered within 60 days upon conclusion of the hearing. In Nyagwoka Ogora alias Kennedy Kemoni Bwogora v Francis Osoro Maiko Civil Appeal No 271 of 2000 (UR) the Court of Appeal observed as follows: The real question is what is the consequence of non-compliance therewith? No doubt that rule is an important one in the expeditious dispensation of justice. And it is made to be obeyed. However, if non-compliance with the rule were to have the effect contended for by the appellant, we think the overall result would be more injustice than justice to the parties. A lot of time and resources spent in litigation would come to naught if judgments delivered after the expiry of 42 days were to be voided or declared void ipso facto. The rule cannot and in our view could not have been intended to deprive a trial judge of his jurisdiction to write and pronounce judgment in a case he has heard. In our considered view, while non-compliance with the rule and particularly persistent non-compliance or inordinate delay in compliance should call for censure of the judicial officer concerned from those in-charge of judicial administration, it should not be a ground for vitiating a duly delivered judgment. Being of that persuasion we would reject ground 1 of appeal.11.There may be instances where the delay is inordinate and such delay prejudicial to the parties. In such cases, the court may set aside the judgment as was held by the Court of Appeal in Manchester Outfitters Services Limited and Another v Standard Chartered Financial Services Limited and Another [2002] eKLR. The appellant does not contend that the failure to deliver the judgment within the stipulated timelines was prejudicial or that the delay was inordinate. I therefore reject the appellant’s contention that the judgment is null and void.
25.The objective of the Small Claims Court Act is to ensure the swift resolution of disputes while safeguarding the right to be heard. Striking a balance between these two goals may, in some instances, lead to exceeding the 60-day timeline. This happened in this case where parties were fully heard. I had hitherto addressed the question of the sixty day time lines in the case of Biosystems Consultants v Nyali Links Arcade (Civil Appeal E185 of 2023) [2023] KEHC 21068 (KLR) (31 July 2023) (Ruling) Neutral citation: [2023] KEHC 21068 (KLR):54.I don’t think the legislative intent of section 34 of the Small Claims Act is to impose unnecessary bottlenecks. Even tax statutes have timelines for paying or declaring taxes. It is never that non-payment makes those taxes void. There should be consequences. In the Income Tax Act, the non-compliance with deadlines does not vitiate the taxes. It attracts known penalties. What are the consequences under section 34 of the Small Claims Court?55.A court is not entitled to impose a penalty that was not hitherto anticipated. The parties must know, a priori, the consequences of their actions. Any act, especially one promoting certain aspects of the constitution cannot be read mechanically. The Supreme Court in the case of Munya v Kithinji & 2 others (Petition 2B of 2014) [2014] KESC 38 (KLR) (30 May 2014) (Judgment), opined that a purposive interpretation should be given to statutes so as to reveal the intention of the statute. The court observed as follows:56.The purpose of the Small Claims Court Act is to facilitate expeditious disposal of the disputes while at the same time respecting the right to be heard. The net result is that balancing the two may result at times to overshooting the 60 days. The 60 days do not have penal consequences for good reason. They are aspirational. This is part of having access to justice over amounts that need not be in the normal system. Allowing the application will open flood gates that will eventually defeat the purpose of the Act.57.It is my take that the non- compliance goes to the court’s performance and is answerable internally. It cannot affect parties who are in court and ready to be heard. I have seen defendants use various gimmicks to have matters adjourned and thereafter turn around to say, 60 days are over. The parties have wasted a full month arguing in this court and with preliminary objections that are much ado about nothing.
26.It appears that the words of the Supreme Court in the Munya v Kithinji & 2 others (Petition 2B of 2014) [supra] fell on deaf ears. The court stated as follows:
27.There is nothing in the Act to require punishment for the court that has endevoured to complete a judgment within 60 days but overshoots by a few weeks. In the circumstances, I find no merit in the appeal. It is accordingly dismissed.
28.The Supreme Court has set forth guiding principles applicable in the exercise of discretion in respect to costs in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR as follows: -
29.Since costs follow the event, the Respondent is entitled to costs of the appeal. A sum of Ksh 70,000/= will be right and just.
Determination
30.In the upshot, I make the following orders:
a.The appeal lacks merit and is according dismissed with costs of Ksh. 70,000/= to the Respondent.b.Costs be paid within 45 days, in default, execution do issue.c.The file is closed.
DELIVERED, DATED and SIGNED at NYERI on this 21st day of JULY, 2025.Judgment delivered through Microsoft Teams Online Platform. .KIZITO MAGAREJUDGEIn the presence of:No appearance for the AppellantMr. Nyanchwa for the RespondentCourt Assistant – Michael