Denko Properties Limited v Amlani & another (Civil Appeal E044 of 2024) [2025] KEHC 18144 (KLR) (27 November 2025) (Judgment)
Neutral citation:
[2025] KEHC 18144 (KLR)
Republic of Kenya
Civil Appeal E044 of 2024
EN Maina, J
November 27, 2025
Between
Denko Properties Limited
Appellant
and
Sachin Kumar Mahesh Amlani
1st Respondent
Devan Maheshkumar Amlani
2nd Respondent
(Being an Appeal against the Judgement of the Honourable B A Luova (Small Claims Court Machakos Law Courts in SCCOMM no. E315 of 2022 delivered on 26/01/2024)
Judgment
1.Through a claim dated 14th October 2022, Respondent’s sued the Appellant in the small claims court for a sum of Kes.650,000 being money had and received pursuant to a contract for construction of a greenhouse on the respondent’s parcel of land at Athi River but which was never constructed hence breaching the contract.
2.Briefly, the claim was that on 27th March 2019 the parties entered into an agreement wherein the appellant was to construct a greenhouse on the respondent’s parcel of land LR No Athi River/Athi River Block 19. It was alleged that the appellant failed, refused and neglected to construct the greenhouse as agreed despite several follow ups and receiving a payment of the contractual sum of kes650,000.
3.The respondent while admitting that he entered into the contract with the appellant denied that he breached the agreement and contended that the contract was frustrated after the appellant evicted him from the parcel of land where the greenhouse was to be constructed. He averred that the delay was occasioned by scarcity of materials as a result of the covid 19 pandemic and that by the time he got the materials he could not continue as he had already been evicted from the site. He contended that his plea for extension of time was not heeded by the Respondent. In its response dated 6th September 2023, the respondent also counterclaimed for a sum of kes119,250 in respect to a water bill which was allegedly outstanding as at the time it was evicted.
4.The claim was heard through viva voce evidence. After considering the evidence and submissions by both sides the learned Adjudicator found in favour of the respondent and awarded them the sum claimed together with interest and costs.
5.Aggrieved by the judgment, the appellant lodged this appeal on grounds that: -
6.The appeal was canvassed by way of written submissions.
7.Briefly, Learned Counsel for the Appellant submitted that the Adjudicator erred in entertaining and hearing the case without jurisdiction to do so; that the Adjudicator misconceived the contractual provisions between the parties; that based on the Appellants' evidence and submissions, the Appellants proved their case on a balance of probability; that the Adjudicator erred in law by rendering her judgement without considering the entire evidence adduced by the Appellants thereby ignoring pertinent issues and that therefore, the Appellant is entitled to the reliefs sought in this Appeal.
8.For the Respondent it was submitted that the Adjudicator had jurisdiction to deliver the judgment notwithstanding the time within which it was delivered was outside the timelines provided in the Act; that the Respondent sufficiently satisfied the trial court that it is the Appellant which breached the contract between through non-performance. Further, that this appeal is unmerited and is only calculated at getting an unfair advantage over the Respondents and the same should be dismissed.
Determination
9.As the first appellate court, I have considered and re-evaluated the evidence that was adduced in the court below so as to arrive at my own independent conclusion while keeping in mind that I did not see or hear the witnesses. I have also considered the rival submissions of the learned counsel for the parties, the cases cited and the law.
10.The gravamen of this appeal is firstly whether the Adjudicator decided the case against the weight of evidence and secondly whether the judgment is irregular for being delivered outside the time limited for doing so.
11.That there was a contract between the parties for construction of a green house is not in contention. That this did not materialize is also not in contention and in fact the respondents do not dispute that they terminated the contract but contend they did so because the appellant did not keep his part of the bargain.
12.The question of who was to blame is a matter of fact to be decided from the evidence. The respondents’ evidence in the court below, was that the appellant was to construct a greenhouse on their land in Athi River and had on several occasions given indication that the construction was underway only for one of them to visit the site with employees of the appellant to find nothing on the ground. The respondent adduced several emails between them and the appellant including one dated 17th July 2020 terminating the agreement for reason of non-performance by the. Whereas the appellant contended that he had sought and been granted extension of time by the respondents, he did not adduce any such correspondence. In the court below, he referred to an email by which he alleged time was extended only for him to admit it was not representative of such an extension. It is my finding that by 17th July 2020 no greenhouse had been constructed. I also find that the appellant was never granted extension of time and I also find that he breached the contract between him and the respondents. I am therefore in agreement with the findings of the Adjudicator that the claim was proved on a balance of probabilities and this appeal has no merit. That limb of the appeal therefore fails.
13.As regards the submission that the Adjudicator did not have jurisdiction when she delivered the judgment it is trite that claims in the small claims court must be determined within sixty days- see Section 34(1) of the Small Claims Court Act which limits the time for determination of claims before that court to sixty days. Be that as it may, there are two schools of thought as to the legality of the judgments delivered after the sixty days. One school of thought holds that such a judgment is a nullity (see the case of Kartar Singh Dhupar & Company Limited v Arm Cement PLC (IN LIQUIDATION)[2023]KEHC 2417 (KLR). The second school of thought holds that failure to comply with the time is not fatal to such a judgment – (see the cases of Biosystem Consultants versus Nyali Links Acarde (Civil Appeal E185 of 2003) 2023) KEHC 21068 (KLR) (31 July 2023 (Ruling), Crown Beverages Limited vs MFI Document Solutions Limited (Civil appeal E833 of 2021) (2023) KEHC 58 (KLR) (Civ) (17 January 2023) (judgment) and Wekesa v Matata (Civil Appeal E685 of 2022) [2024] KEHC 8284 (KLR) (28 June 2024) Judgment).
14.I may not have to determine that issue as of now the reason being that from the record, a judgment was indeed rendered within sixty days as provided by the Act. However, that judgment was set aside at the behest of the appellant as he claimed not to have been served. In my considered view in the peculiar circumstances of this case time begun to run from the time the appellant who was the respondent, filed his response on 14th September 2023 but not when the claim was filed. The record also shows that hearing of the matter was delayed because the parties could not agree on the issue of thrown away costs which was a condition precedent to setting the default judgment aside. The appellant now wants to benefit from his own delay.
15.The upshot is that this appeal is unmerited and it is dismissed with costs to the respondents.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 27TH DAY OF NOVEMBER 2025.E. N. MAINAJUDGEIn presence ofMr. Mulama HB for Mr Nga’ng’a for the Appellant.Mr. Ochieng for the Respondent.Geoffrey Court Assistant.