Macharia v Wanjohi t/a Gitonyi Supplies & Services (Commercial Case E245 of 2023) [2025] KEHC 1652 (KLR) (Commercial and Tax) (6 February 2025) (Judgment)
Neutral citation:
[2025] KEHC 1652 (KLR)
Republic of Kenya
Commercial Case E245 of 2023
AM Muteti, J
February 6, 2025
Between
Pharis Njoroge Macharia
Appellant
and
Paul Gitonyi Wanjohi t/a Gitonyi Supplies & Services
Respondent
(Being an appeal from the judgment of Hon V.M.............)
Judgment
Introduction
1.The present Appeal was instituted by the Appellant vide a Memorandum of Appeal dated 20th September, 2023. The appellant is seeking-a)That this Appeal be allowed;b)The judgment delivered by Hon. V.M Mochache on 5th May 2023 be set aside and or quashed;c)The Appellant's claim as prayed in the Statement of Claim dated 17th February,2023, be allowed;d)The costs of this Appeal and the suit in the subordinate court be borne by the Respondent.
Background
2.The Appellant instituted a suit vide a statement of claim dated 17th February, 2023 vide Milimani Small Claims Cause No. E1178 of 2023 against the Respondent herein.
3.The Hounourable court in its judgement dated and delivered on the 5th May, 2023, found that the Appellant's claim lacked merit and dismissed the same with costs to the respondent.
4.The Appellant being aggrieved with the judgement and Orders of Hon. V.M Mochache dated and delivered on the 5th of July, 2023 appealed to this Hounourable Court.
5.The appellant set out the following grounds of appeal for consideration by this court that;-a)the Learned Adjudicator erred in law by failing to give her judgment within the mandatory timelines prescribed by section 34 (1) and (2) of the Small Claims Act hence the Court's jurisdiction had lapsed by the time it issued its judgement on 5th May, 2023;b)the Learned Adjudicator erred in law by failing to take into account and appreciating the substantive issues of law raised by the Appellant's counsel during the hearing of the main suit and in the submissions, authorities and other documents on record;c)the Learned Adjudicator erred in law in finding that the Appellant did not discharge its burden of proof;d)the Learned Adjudicator erred in law in finding that the Appellant's suit lacked merit;e)the Learned Adjudicator erred in law by failing to find that there was a breach of contract by the Respondent when they issued bouncing cheque in direct contravention of Section 47 of the Bills of Exchange Act;f)the Learned Adjudicator erred in law by failing to appreciate the nature of the business transactions between the parties thereby misapprehending the evidence tendered by the Respondent and arriving at erroneous findings on the issue of whether the Respondent owes the Appellant the amount Claimed;g)the Learned Adjudicator erred in law by arriving at a decision that was not based on the pleadings and evidence on record; andh)in the circumstances of the case, the Learned Adjudicator failed to render justice to the Appellant and to uphold the rule of law.
Analysis
Appellant’s Case
6.On whether the learned adjudicator erred in law by failing to give her judgment within the mandatory timelines prescribed by section 34 (1) and (2) of the Small Claims Court Act, the appellant submitted that Section 3 of the Small Claims Act, provides for the overriding principles of the court, it states that "(1) in exercise of jurisdiction under this act the court shall be guided by principles of judicial authority prescribed under Article 159(2) of the Constitution;
7.The appellant went further to submit that Section 34 of the Small Claims Court Act, provides for the expeditious disposal of cases whereby sub section 1 provides that "in proceedings before the court on any particular days so far as is practicable shall be heard and be 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 the filing of the claim".
8.The appellant also argued that Sub Section 2 of the same provision provides "that judgement given in the 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".
9.The appellant in support of the submissions cited the case of Kartar Singh Dhupar & Company Limited v ARM Cement PLC (In Liquidation ){2023} KEHC 2417 (KLR) the court held that "Guided by these authorities, this court is satisfied that the judgment delivered by Hon CA Okumu (Ms)/ Adjudicator on August 23, 2022 was done outside the statutory timelines set under section 34 of the Small Claims Court Act and hence made without jurisdiction. It is therefore a nullity, bereft of any force or effect in law.
10.The appellant also cited the High Court decision in the case of Kituo Cha Sheria vrs Gil Adiz Advertising Company Limited have in relying on the Case of Biosystems Consultants vrs Nyali Links Arcade, where the court held that "the legislative intent of Section 34 of the Small Claims Court Act was not to impose unnecessary bottlenecks. Even tax statutes have timelines for paying or declaring taxes. It was never meant that non-payment made those taxes void....".
11.The appellant argued that whereas he appreciated the development in law by the courts when it comes to the interpretation of the applicability of Section 34 of the Small Claims Court Act, it was his view that the courts interpretation on the applicability of Section 34 of the Small Claims Act could not be applied in the Appellant's case.
12.The appellant submitted that in the instant case the Statement of claim dated 17th February, 2023 was filed on the same dated and the judgement was delivered on 5th May 2023 as such 60 days lapsed on or before the 17th April,2023 and therefore the judgement should be rendered nugatory due to non- compliance with section 34 of The Small Claims Act as the court had no jurisdiction to determine the matter.
13.Further, the appellant submitted that the Learned Adjudicator erred in law by failing to give her judgment within the mandatory timelines prescribed by section 34 (1) and (2) of the Small Claims Act hence the Court's jurisdiction had lapsed by the time it issued its judgement on 5th May, 2023.
14.On whether the learned adjudicator erred in law by failing to take into account and appreciating the substantive issues of law raised by the appellant's counsel during the hearing of the main suit and in the submissions, authorities and other documents on record, the appellant submitted that there were two issues that were raised by the Appellant in his submissions dated 3rd April, 2023;-a)Whether there was a breach of payment of consideration as a term of contract by the Respondent; andb)Whether the claimant was entitled to the relief sought in the suit.
15.The appellant acknowledged that in the determination of the issues the burden of proof was on him on a balance of probabilities.
16.Section 107(1) Of the Evidence Act, provides that, "whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist".
17.The Appellant submitted that he had an oral agreement for the supply of meat to the Respondent payable as and when delivered either in cash or postdated cheques.
18.The appellant invited this court to consider what is a contract under the Sale of Goods Act.
19.Section 3(1) of the Sale of Goods Act, Chapter 16, states;- a contract of sale of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.
20.The appellant argued that it was established by both parties that indeed they had an oral agreement which was entered into sometimes in the year 2019 and the Claimant supplied the Respondent with meat on diverse dates.
21.The law on sale of Goods was aptly captured by Onguto J. In the case of Isaac Mugweru Kiraba T/A Isamu Refri-electricals-versus-Net plan East Africa Limited [2018] eKLR as follows; -
22.The Appellant submitted that while under Re- Examination he confirmed that he used to supply meat and he would be paid by Mpesa or cash. He went further and testified that her served a demand letter, and that he was the one who took it to the respondent.
23.The Appellant went further to testify as follow, "He admitted the debt and told me to give him time to pay. I stopped supplying. I waited him to pay first. He paid Kshs. 10,000 on 29/08/2020, Kshs. 10,000 on 5/9/2020, Kshs. 10,000 on 15/9/2020, Kshs. 10,000 on 27/9/2020 and Kshs. 10,000 on 7/10/2020.I haven't been paid again."
24.The Respondent, acknowledged the receipt of the demand letter and that he signed the demand letter dated 25th August, 2020. The respondent did not dispute the amounts.
25.He also admitted issuing the cheques after receiving the demand letter and that he also made some payment through cash and Mpesa.
26.According to the appellant no further payments were made after filing of the claim.
27.The appellant contended that a scrutiny of the said Mpesa statement of the respondent would reveal that from date 25/8/2020 which date the Respondent confirmed he was served with the demand letter and did not dispute the outstanding amounts, he made some payments only a total of Kshs. 50,000/- which amounts were paid on diverse dates between 29/8/2020 to 7th October, 2020.
28.The appellant further submitted that the other transactions indicated in the Mpesa statement are for diverse dates between 3/1/2019 to 4/7/2020 related to other transactions which the Appellant and the Respondent herein had that gives us a clear picture that the parties herein have been doing business for a long period of time.
29.In addition, the appellant submitted that as at 25th August, 2020, when the Respondent was being served with the demand letter he acknowledge the amounts owing as being Kshs. 552,960/= thus the appellant urged this court to assume that the payments that were made for the period between 3/1/2019 to 4/7/2020 were meant to satisfy the debt.
30.As to whether the learned adjudicator erred in law in finding that the appellant did not discharge its burden of proof and that his suit lacked merit, the appellant submitted that vide a Statement of claim dated 17th February, 2023 the Appellant instituted a claim as against the Respondent herein which was designated as Milimani Small Claims Court Cause No. E1178 OF 2023.
31.Section 107(1) Of the Evidence Act, provides that, "whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist".
32.The Court in the case of Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR, the court observed that "It is a well-established rule of evidence that whoever asserts a fact is under an obligation to prove it in order to succeed. The appellant was thus under duty to establish his case in order to succeed.
33.The Appellant in support of his claim gave his evidence in chief vide his statement dated 17th February, 2023 and produced his list of documents dated 17th February, 2023.
34.The Respondent testified and said "I signed the demand letter dated 25th August, 2020. I didn't dispute the amounts. I issued the cheques. After receiving the demand letter I made some amount. I paid through cash and mpesa. No further payments have been made after filing of the claim." No evidence of payment in cash was availed in trial court.
35.The appellant therefore was able to establish that the figure in issue was actually owing and due to him.
36.The burden of proof was therefore discharged according to the appellant.
37.On whether the learned adjudicator erred in law by failing to find that there was a breach of contract by the respondent when they issued bouncing cheque in direct contravention of section 47 of the bills of exchange act, the appellant cited the case of Caleb Onyango Adongo v Bernard Ouma Ogur [2020] Eklr, relied on the case of the Court of Appeal in the case of Abdulkadir Shariff Abdirahim & Another vs. Awo Sharriff Mohammed t/a A. S. Mohammed Investments (2014) eKLR where the Court of Appeal held that: -
38.According to the appellant the appellant the issuing of a bouncing cheque is by itself proof of a none payment of a debt by the respondent thus proof of a breach of contract.
39.The High Court at Migori in the case of case of Caleb Onyango Adongo v Bernard Ouma Ogur (supra) relied on the case of Rose and Frank Co. vs. JR Crompton & Bros Ltd (1923) 2 KB it was held that: -
40.The appellant maintained that they had met all the requirements of a valid contract to attract relief from the court. The appellant cited the case of Caleb Onyango Adongo v Bernard Ouma Ogur (supra) relied on the case of William Muthee Muthami vs. Bank of Baroda (2014) eKLR where the Court of Appeal observed that: -
41.The issue of existence of an oral agreement between the parties was not disputed.
42.The Respondent confirmed that the Appellant supplied him with the meat on diverse dates and the Respondent would pay for the same as and when the same got delivered.
43.The Respondent also confirmed that he issued the Claimant with cheques, totaling to Kshs. 552,960/= as evidenced at pages 49-52 of the Record of Appeal for supplies received from the Appellant with a gentleman's understanding that the same would be deposited on later dates when the Respondent would have credited his account.
44.The four cheques were issued as follows: -a)15/10/2019- Kshs 70,130/=b)30/10/2019- Kshs. 88,070/=c)30/10/2019-Kshs. 194,760/=d)20/11/2019-Kshs. 200,000/=
45.All the cheques were deposited in the bank on 25th March, 2020 with the Family Bank Limited and all the four cheques bounced. The appellant’s case therefore is that the debt owed to him was never settled by the respondent.
46.The appellant further submitted that the Learned Adjudicator erred in law by arriving at a decision to the effect that the Respondent had made payment to the Claimant of approximately Kshs. 557,400/= yet no pleading or evidence was availed in court that such amount had been paid as from the 25/8/2020.
Respondent's Case
47.The Appellant herein instituted a suit under the Small Claims Court Case No. E1778 of 2023, vide a Statement of Claim dated 17th February 2023 against the Respondent seeking;a.Judgment in the sum of Kshs. 558,360/-.b.Costs of the claim, to be assessed by the court.c.Interest on all the above.
48.The suit was defended by the Respondent and upon hearing the parties together with the evidence tendered, Judgment was entered on 5th May 2023 in favor of the Respondent herein dismissing the Appellants suit at the lower Court with costs to the Respondent on the basis that the claim lacked merit.
49.According to the respondent, the issues that fall for determination are;-a.Whether the Judgment being delivered out of the time frame under Section 34 (1) and (2) can nullify the Judgment?b.Whether there was a breach of the contract of sale of goods?c.Whether the Appellant discharged its burden on a balance of probabilities?d.Whether there was a breach by the Respondent in issuance of cheques?e.Whether the decision arrived at in the Judgment delivered on 5th May 2023 was based on the pleadings and the evidence on record?
48.As to whether the judgment delivered out of time frame under section 34 (1) and (2) can nullified the respondent submitted that the High court cannot do so and cited the case of Crown Beverages Limited v MFI Document Solutions Limited (Civil Appeal E833 of 2021) [2023] KEHC 58 (KLR) (Civ) (17 January 2023) (Judgment), Justice Majanja stated as follows: -
48.On the strength of the decision the respondent contended that more injustice would be visited upon the parties if this Court were to hold that the non-delivery of the judgment within the stipulated time divests the Court off its jurisdiction. The respondent urged this Court to be bound by the above decision in holding that the Court did not lack jurisdiction to rule on this case post the set timelines and find that there are no penal consequences for delivery of the Judgment post the 60 days' period.
49.The respondent further submitted that the Appellant in the lower court did not contend that the failure to deliver the judgment within the stipulated timelines was prejudicial or that the delay was inordinate. Therefore, the Appellant's contention that the judgment is null and void should be rejected by this Honorable Court.
50.The respondent further relied on the case of Good Living Properties v Pearl Garden Management Limited (Civil Appeal E353 of 2022) [2024] 4548 (KLR) (Civ) (2 May 2024) where the learned Hon judge held;-
48.The respondent thus submitted that the Judgment that delivered on 5th May 2023 by Hon. V. M. Mochache, the Judgment date was given by the court thust the Appellant has no right to pin the delay in delivering the judgment on the Respondent.
49.The Judgment date given by the trial Court for 5th May 2023 was given in the presence of both parties and was taken by consent by counsel for the Appellant and counsel for the Respondent. The Appellant did not raise the issue of Section 34 (1) while the date was issued by the Court and as such the Appellant's submissions should be dismissed for being an afterthought and not founded on any law or fact.
50.The Appellant could have raised the same which can be confirmed in the proceedings attached in the Appellant's Record of Appeal but chose to remain silent which is contrary to the maxim of equity that says equity does not aid the indolent but the vigilant.
51.Therefore, we humbly urge this Court to uphold the Judgment that was delivered on 5th May 2023 by Hon. V. M. Mochache was made by a Court with competent jurisdiction.
52.On Whether there was a breach of the contract of sale of goods, the respondent submitted that the contract between the Appellant and the Respondent, was purely verbal, whereby the Appellant and the Respondent entered into a contract for the supply of meat to the Respondent at a consideration payable through cash and Mpesa payment method.
53.It is the Appellant's contention that the Respondent breached the contract of sale of goods that was entered sometime back in 2019 by failing to pay a total sum of Kshs. 552,960.00/-. The Respondent reiterates that the he is not indebted to the Appellant. The Respondent provided before the Trial Honorable Court, evidence in the form of his Mpesa statements, for the period between 1st December 2018 to 31st December 2021, evidencing payments for the amounts owed to the Appellant in full.
54.The respondent went on to submit that the Appellant failed to discharge the burden of proof that lay upon him in line with Section 107 of the Evidence Act, as was rightly held by the Trial Magistrate, which states that;(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
48.The respondent urged this Honorable Court to reach a finding that the Appellant's appeal lacks merit since the appellant has failed to provide any form of evidence that indeed the Respondent was indebted to him to warrant the claim by the Appellant that the Respondent breached the Agreement between them.
49.According to the respondent the Appellant is only trying to self-enrich themselves unjustly.
50.On whether the appellant discharged the burden of proof the respondent urged the court to find that that was not done and dismiss the appeal.
51.The respondent placed reliance on Section 107 as read with Section 108, 109 and Section 112 of the Evidence Act places the burden of proof on the Appellant, he who alleges must prove.
52.The Court of Appeal in the case of Mbuthia Macharia v Annah Mutua Ndwiga & another [2017] eKLR explained that the legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. That constitutes evidential burden.
53.The learned Judges cited with approval the same principle of law as amplified by the learned authors of The Halsbury's Laws of England, 4th Edition, Volume 17, at paras 13 and 14 which states as:
48.The respondent maintained that the Appellant failed to adduce any evidence as to the existence of a debt, thus he failed to discharge the evidential burden of proof even at the appeal and the same cannot shift to the Respondent to adduce evidence rebutting the existence of the debt. The Respondent already discharged its burden of proof at the trial court by giving evidence demonstrating that he had settled all dues owing to the appellant.
49.Therefore, in conclusion, we humbly pray that your Ladyship do dismiss the present appeal with costs to the Respondent on this ground.
50.On the issue of bounced cheques, the Respondent wishes to reiterated that the evidence before the court in the form of cheques clearly showed that the cheques were dated different dates but the Appellant presented them all on the same day, which is 20th March 2020, which was more than five months since the cheques were written.
51.The respondent submitted that that showed that on a balance of probabilities that the cheques were not meant to be for cashing as no reason was advanced by the Appellant why he went on to bank the cheques on the same day, 20 March 2020.
52.The respondent sought to persuade this court that the cheques were issued in good faith to facilitate the Appellant in obtaining meat from his suppliers and the cheques were not issued on the basis that the Respondent owed the Appellant Kshs. 552,960.00/-, a debt which the Respondent had already settled as evidenced by the Mpesa Statements produced by the Respondent before this Court.
53.The Respondent maintained that he did not breach the contract between himself and the Appellant by issuing the cheques disclosed to the Appellant. The Respondent made good the Appellant's claim as evidenced with his Mpesa Statements for the period between 1st December 2018 to 31st December 2021 hence the present appeal lacks merit.
54.The decision arrived at the lower court was correctly arrived at based on the pleadings and evidence on record placed before this court by both parties.
55.The appellant urged this court in conclusion, to dismiss the present appeal with costs to the Respondent as the Appeal lacks merit as once again the Appellant has failed to discharge their burden of proof on a balance of probabilities.
Analysis and Determination
48.The appeal raises the important question of the jurisdiction of the small claims courts to hear and determine matters beyond the statutory period of 60 days. The issue of jurisdiction such that the courts of this country must pronounce themselves with finality on the matter of the Small Claims Courts jurisdiction because the disputes that find there way into those courts touch on the very critical mass of society which has time and again accused the courts of paying little regard to the cry for justice by the majority of Kenyans who are not financially endowed.
49.In dealing with the issue the court must begin by asking what really was the intention of parliament in enacting the Small Claims Court Act of 2016.
50.The long title to the Act clearly states that it was intended to establish Small Claims Courts to provide for the Jurisdiction and Procedures of the Court and for connected purposes.
51.The long title therefore makes it clear that the jurisdiction conferred under the Act is specific and must remain the only jurisdiction exercisable by the court.
52.The jurisdiction is not expandable in the view of the court given that statement of intent expressed by the legislature. The court being a creature of statute can only exercise the specific jurisdiction conferred upon it by the legislature and no more. This court is guided by the decision of the court of appeal in Anarita Karimi Njeru Vs. Republic 1979 eKLR : “We cannot agree with any of Mr Mwirichia’s submissions and we are satisfied that this Court having been established by statute enjoys only that jurisdiction conferred on it by statute.”
53.It is not open to a court that has limited jurisdiction to expand it whimsically.
54.In Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & Others (2012) eKLR Supreme Court stated as follows:
48.In the submissions of the respondent the respondent has cited decision of this court that the respondent has urged the court to follow. The court in Good Living Properties v Pearl Garden Management Limited (Civil Appeal E353 of 2022) [2024] 4548 (KLR) (Civ) (2 May 2024) declared the 60day timeline for conclusion by the Small Claims Courts as aspirational. This court is not minded to agree with that position because the Act specifically sets the timeline in mandatory terms.
49.In fact, the respondent, in the decision he has cited by the late Majanja J fails to appreciate that the judge agreed that the 60 day period set out in the statute is couched in mandatory terms. See the case of Crown Beverages Limited v MFI Document Solutions Limited (Civil Appeal E833 of 2021) [2023] KEHC 58 (KLR) (Civ) (17 January 2023) (Judgment), Justice Majanja.
50.The court in the above quoted decision went on to draw a comparison between the 60 day timeline set in the Small Claims Court Act to the provisions of the Civil Procedure Order 21rule 1 and effectively made a finding that the time limit was a mere direction.
51.It is the view of this court that parliament in enacting Section 34 of the Small Claims Act must have intended to have proceedings come and terminate within 60 days in order to achieve the goal of expeditious disposal of case as the headnote to the section implies. The doctrine of presumption of legality would favor an interpretation that where the legislature delivers itself in a language that is unambiguous the courts must give effect to the law as enacted by the legislature.
52.The Courts by allowing the Small Claim Courts to determine matters beyond the 60 days prescribed in law would be encouraging a clear violation of the law.
53.It would make no jurisprudential sense to have the Small Claims Court left to determine cases way beyond the statutory timeline of 60 days because that would defeat the very purpose of setting up the courts.
54.The expeditious disposal of cases falls squarely within the provisions of Articles 50 and 159 of the Constitution of Kenya 2010. The litigants whose matters go before the small claims courts have a legitimate expectation that the process before that court would conclude within 60 days thus to extend the period beyond the statutory timeline would be against the parties fair hearing rights.
55.The limit on jurisdiction is not only on the 60 days but on a host of other aspects like the Ksh 1million pecuniary jurisdiction. The court cannot be allowed to entertain a figure beyond that limit and it is precisely for the same reason that parties must accept that this is a special court designed to deliver justice strictly within a set time line just like the election courts.
56.One may ask is it equitable to down tools after the 60th day or does it further the interests of justice in doing so? The answer to that question in my view leans towards the resolution of disputes with a keen eye of equity but still equity cannot against express statutory provisions. In the case of Shiv Kumar Sharma v. Santosh Kumar, AIR 2008 SC 171: the court held;-
48.The view of this court is that much as the court is alive to the capacity constraints of the Small Claims Court, the solution to the personnel question cannot be allowing the courts to operate outside the express provisions of the enabling statute. The same parliament that passed the law must actuate the noble intention of setting up the court by providing adequate resources for the court to function optimally within the law.
49.As result this a court finds that the judgment delivered by the learned honorable V. Mochache was delivered without jurisdiction and is hereby set aside.
50.The effect of that finding is that the other issues raised in the appeal collapse on the issue of jurisdiction since all the determinations by the court were a nullity.
51.The appeal is allowed with costs to the appellant.
52.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 6TH DAY OF FEBRUARY 2025.A. M. MUTETIJUDGEIn the presence of:Court Assistant: KiptooKinyanjui holding brief Kinyanjuhi for AppellantShimoli for Respondent