https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10321

Baraza v Master (Small Claims Appeal E103 of 2025) [2026] KEHC 10321 (KLR) (Civ) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10321 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Small Claims Appeal E103 of 2025 D Mburu, J July 9, 2026 Between Allan Collins Baraza Appellant and Maisiba Edgar Master Respondent (Being an appeal from the judgment of the Small Claims Court at Milimani by the Hon. Adjudicator E. M. Wamae delivered on 13th February 2025 in Nairobi SCCCOMM E16179 of 2024) Judgment 1.The respondent filed a claim before the Small Claims Court through his statement of claim dated 10th October 2024 by which he claimed the sum of Kshs. 360,000/=, interest and costs of the suit. The claim was in respect of an agreement for the sale of a motor vehicle registration number KBV 724S. It was the respondent’s case that he had paid a sum of Kshs. 400,000/= to the appellant as purchase price for the said motor vehicle, and that after the appellant failed to transfer the said motor vehicle in favour of the respondent, the parties agreed that the appellant would refund the entire purchase price. The respondent contended that the appellant refunded only Kshs. 40,000/= leaving an outstanding balance of Kshs. 360,000/= hence the suit. 2.The appellant duly entered appearance and filed a response to statement of claim dated 18th November 2024 denying all allegations pleaded against him and therefore urged the court to dismiss the claim with costs. 3.In her judgment, the trial adjudicator found that the respondent had proved his claim and allowed it as prayed. 4.Being dissatisfied with the said judgment, the appellant lodged this appeal vide the Memorandum of Appeal dated 13th February 2025 and raised three (3) grounds of appeal as follows: -1.That the learned trial Adjudicator erred in law by failing to make a finding that the respondent failed to discharge his burden of proof.2.The learned trial adjudicator erred in law by failing to appreciate the law as it relates to a claim for special damages.3.That the learned trial adjudicator erred in law by not giving weight and consideration to the Appellant’s submissions and case law cited. 5.The respondent though served did not participate in the appeal. I have carefully considered the submissions filed by the appellant. This being a first appeal, the Court is duty bound to evaluate the evidence before the trial court afresh and come to its own independent findings and conclusions. (See Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA 123). 6.Before the trial court, the parties proceeded under section 30 of the Small Claims Act which provides that subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court. 7.It is upon this basis that the trial court proceeded to determine the suit before it. In his statement of claim, the respondent sought special damages of Kshs. 360,000/=. It is trite law that special damages must not only be specifically pleaded, they must also be strictly proved. The appellant admits that the claim was specifically pleaded but argues that it was never strictly proved. 8.I have considered the evidence tendered before the trial court and the submissions made before me. This being an appeal from the Small Claims Court, it is important to point out that 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.” 9.It is clear from the foregoing that the jurisdiction of this Court from the Small Claims Court is only on matters of law and not factual issues. 10.In the case of Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR, the Court of Appeal clarified that where a right of appeal is confined to questions of law only, an appellate court is duty bound to accept the findings of fact of the lower court and should not interfere with the decisions of the trial court on the factual issues “unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.” [Emphasis added]. 11.In this appeal, the question for determination by this Court that arises from the grounds of appeal pleaded by the appellant is whether the trial court erred in law in holding that the respondent had proved his claim against the appellant. 12.The appellant submits that there was no proof of transmission of Kshs. 400,000 to the appellant by the respondent. That the respondent did not produce any receipt, bank statement, M-pesa statement or any other form of evidence of the alleged transaction and that there was also no proof of the alleged agreement between the respondent and the appellant for the sale of motor vehicle registration number KBV 724S on 20th May 2020. That if at all the said agreement was an oral one, then the respondent ought to have corroborated his assertion by providing evidence of payment of the funds pursuant to the oral agreement. 13.The trial court in its judgment found that the claimant’s claim was supported by the Agreement to Refund. The said agreement was in writing and although disputed by the appellant, the appellant did not plead either fraud or forgery. He did not set out any particulars of fraud or forgery; neither did he prove that the signature appearing on the said agreement did not belong to him. 14.In the case of Kuria Kiarie v Sammy Magera [2018] eKLR, the court pronounced itself on the issue of fraud as follows:“It is well established that fraud must be specifically pleaded and that particulars of the alleged fraud must be stated on the face of the pleading. The facts alleged to be fraudulent must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts of a case.” 15.Therefore, the allegations by the appellant remain mere denials without probative value. It is trite law that fraud must be specifically pleaded and proved by the party alleging the fraud. 16.This court is satisfied that on a balance of probabilities, the respondent was able to prove his claim before the trial court. The appellant did not provide any rebuttal evidence to displace that of the respondent. 17.Invariably, this court hereby finds that the trial court cannot be faulted for its finding that the respondent had proved his claim. 18.Consequently, I do hereby find and hold that the appeal herein lacks merit. I therefore make the following orders:a.The appeal is hereby dismissed but with no order on costs. DATED, SIGNED AND DELIVERED AT NAIROBI, VIRTUALLY THIS 9TH DAY OF JULY 2026.DAVID MBURUJUDGE