https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10981

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E215 OF 2024** **DAVID OKELLO……………….…………..………..………..APPELLANT** **-VERSUS-** **RONALD KEMBOI…………………….…….………….…RESPONDENT** **(Being an Appeal from the Judgment of Hon. C. Maiyo (Adjudicator) delivered on 1st October, 2024 in Kisumu SCCommC Number E657 of 2024)** **JUDGMENT** **Introduction** 1. The Appeal related to the Judgment delivered in Kisumu Small Claims Commercial Case Number E657 of 2024, in which the Adjudicator found the Appellant herein liable to pay a sum of Kshs.250,000/- being refund of part of the purchase price for motor vehicle registration number KCG 918F. 2. The Appellant was dissatisfied with that order, basically stating that trial court erred in making that finding without finding that the cause of action was time barred as provided for under Section 4 (1)(a) of the Limitation of Actions Act. **Trial Courts Evidence** 1. The Claimant’s case was that he bought the vehicle from the Respondent in the year 2017. The agreed purchase price was Kshs.650,000/- which the Claimant states that he paid in full. 1. The witness told court that in late 2019, the Respondent telephoned him and informed him that the vehicle would be repossessed, having been bought through a hire purchase and the facility for the hire purchase had not been settled. The witness states that he agreed with the Respondent that the Respondent can refund him Kshs.500,000/- and in return, the Claimant could return the vehicle. 1. The witness states that the Respondent sent a relative to pick the vehicle and in exchange thereof, the Claimant was given two cheques that were postdated. That he deposited the cheques but the cheque dated March, 2020 was returned unpaid. The Claimant states that he followed up with the Respondent but was not able to recover the Kshs.250,000/- and that is how he filed the matter in court. 2. The Claimant told court that he only got to know that there was a 3rd Party when the issue of repossession came up. That at the time of the sale of the vehicle, he did not know that there was a pending obligation. 3. The Claimant had produced in court the documents in support of the claim, being the WhatsApp messages between him and the respondent and his bank statement from cooperative bank of Kenya indicating the deposit of the two cheques on 5th January 2020 and 23rd March 2020, with the latter being returned unpaid. 1. The Respondent on the other hand acknowledged that he had sold the vehicle to the Claimant. He however told court that the purchase price was Kshs.850,000/- of which the Claimant paid only Kshs.650,000/-, to pay the Respondent the amount he had already paid pursuant to the hire purchase agreement. That the Claimant was supposed to continue repaying the balance of the hire purchase facility, but he did not and the vehicle was repossessed. The Respondent claims that the Claimant went missing and he had been looking for him all over but he did not find him. That the Claimant only resurfaced when the vehicle was being repossessed. 2. According to the Respondent, the vehicle was repossessed by a 3rd Party and he has no powers to repossess. He told court that the Claimant was to blame for what befell him. **Submissions by the Appellant** 1. The Appellant submitted that the trial court erred in not finding that the cause of action herein was time barred. According to the Appellant, the cause of action arose in 2017, when he sold the vehicle to the Claimant and it was erroneous for the adjudicator not to hold that the cause of action offended the provisions of Section 4(1) (a) of the Limitation of Actions Act. According to the Appellant, the action was brought in 7 years after the cause of action and the court should not have entertained it. 2. The Appellant also submitted that the Adjudicator had shifted the burden of proof to the Appellant herein, which is against the Rules of evidence. That the Claimant had not established his claim on a balance of probabilities and had not tendered any evidence in support of the claim yet the court went against the provisions of Section 107 and 109 of the Evidence Act. 3. The Appellant urged the court to interfere with the findings of the trial court and overturn the decision of the Adjudicator. **Submissions by the Respondent** 1. The Respondent in the Appeal submitted that the Appellant’s grounds of Appeal are factual and only one issue of law was raised. That the only issue of law was on Limitation of Actions Act. 2. That though the Appellant agrees at paragraph 2 of his written submissions that indeed, the Appeal from the Small Claims Court to the Superior court should strictly be on points of law, that he had gone ahead to submit on factual issues, and the Respondent urged the court to strike out the factual issues and only deal with the issues of law. 3. The Respondent submitted on the provisions of **section 38(1) of the** Small Claims Act, which states that: *“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,”* and urged the court to strike out all the grounds of Appeal except for ground 1 and any submissions on grounds 2, 3, 4, 5 and 6 of the Memorandum of Appeal, for offending the provisions of Section 38 (1) of the Small Claims Court Act. 4. Counsel cited the decision in **Bashir Haji Abdullahi v Adan Mohamed Nooru & 3 Others (2014) eKLR,** where the Court of Appeal held inter alia that when faced with a situation where a Memorandum of Appeal raises factual issues, an Appellate Court is at liberty to strike out the offending ground(s) while retaining those that are compliant. 5. Counsel also referred the court to **Murage v Lesedi Developers Limited (Civil Appeal 196 of 2023) [2024] KEHC 8882 eKLR)** where the court stated, ***“…*** *It therefore follows that in appeals originating from the Small Claims Court to this court, the court can only entertain appeals limited to points of law in terms of Section 38(1) of the Small Claims Court Act. It therefore follows that the trial court’s findings on the question of fact are to be accepted by this court unless it is demonstrated to this court that the trial court’s conclusions on those facts are so perverse, to warrant the attention of this court, exercising its appellate jurisdiction under the law.* Counsel urged this court to only deal with the matter of law, that is raised. 6. On the matter of law, the Respondent submitted that the cause of action arose in March of 2020, when the cheque was returned unpaid and not in the year 2017 when the motor vehicle was sold. He submitted that the trial magistrate did not err in finding that the cause of action was not time barred. **Analysis and Determination** 1. As properly submitted by both parties, appeals from the Small Claims Court are governed by Section 38 (1) of the Small Claims Court Act, 2016, and are only on matters of law. I have considered the trial court decision, the grounds of Appeal and the submissions by the parties and the following are the issues for determination. 1. Whether the Suit herein offends the provisions of Section 4 (1) (a) of the Law of Contract Act. 2. Whether the judgment of the learned Adjudicator offends the provisions of Section 107 and 109 of the Evidence Act by shifting the burden of Proof. **Whether the Suit herein offends the provisions of Section 4 (1) (a) of the Limitation of Actions Act.** 1. The relevant provision of the law being**Section 4 (1) (a) of the Limitation of Actions Act** provides as follows: - ***“*The following actions may not be brought after the end of six years from the date on which the cause of action accrued –** 2. **actions founded on contract…*”*** 3. It is clear therefore an action based on contract cannot be brought to court more than six years from the date when the cause of action accrued. So that the next question in the instant case would be, what is the cause of action herein and when did it accrue? 4. The case herein stems from a contract that was breached. In **South Nyanza Sugar Company Limited v Charles M. Nyantahe [2022] eKLR** the court was of the following view in a similar case. ……*That the cause of action on breach of contract can only be brought at the time the actual breach occurred. This is when it can be said the time started running.* 5. Similarly, in the case of **South Nyanza Sugar Company Limited v Dickson Aoro Owuor (2019) eKLR**the court held that; *“…It is only when one of the parties happens to be in breach of the contract that a possible cause of action arises as at that date of the alleged breach and not at the end of the contract period.”* 6. In the instant case, the motor vehicle was sold in 2017 and the Respondent did not know that it had a pending loan obligation until the year 2019 when he was alerted by the Appellant herein. After the Respondent got this information, a compromise was reached where he was to surrender the vehicle in exchange of a refund of Kshs.500,000/-. Indeed, the Appellant used two cheques of Kshs.250,000/- each but one of the cheques was retuned unpaid. 7. So that the cause of action accrued at the time when the cheque was returned unpaid on 23rd March 2020. Under Section 4 (1) (a) of the Limitation of Actions Act, the Respondent had six (6) years from this date to institute the claim against the Appellant herein. This claim was instituted in the year 2024 which was within the statutory period for such a claim. 8. I find that the trial Adjudicator did not err in finding that the claim herein was filed within the Statutory timelines provided under the Limitation of Actions Act. **Whether the judgment of the learned Adjudicator offends the provisions of Section 107 and 109 of the Evidence Act by shifting the burden of Proof.** 1. The Appellant’s contention is that the trial court shifted the burden of proof by requiring evidence that the Kshs.250,000/- was ex gratia assistance to the Respondent. 2. I have considered this submission alongside the Judgment of the learned adjudicator. It is not correct that the adjudicator shifted the burden of proof. In fact, the adjudicator analyzed the evidence tendered by the Claimant and the Respondent and concluded on paragraph 15 of the Judgment that “the Claimant has tendered sufficient evidence in support of the claim, thus discharging his evidential burden of proof, whereas the Respondent has not countered any of it, but made mere denials. 3. That statement by the trial adjudicator does not at all shift the burden of proof to the Respondent and I find nothing in the Judgment of the Adjudicator to suggest that the Appellant herein was called upon the bring evidence. 4. I find that the trial court did not err and did not at any point shift the burden of proof to the Appellant herein. 5. And before I conclude, I have noted a lot of new issues in the submissions by the Appellant. This is an Appeal governed by the provisions of Section 38 of the Small Claims Court Act. The Appeal must be strictly on matters of law. 6. It would be prejudicial to allow a party to introduce new issues of fact at the Appellate stage, which issues were not canvassed at the trial court. In the case of **Charles Kipkoech Leting v Express (K) Ltd & Another [2018]eKLR,**the Court of Appeal stated 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 by the lower court. So that it is improper and against the rules of procedure to entertain questions that were not determined by the trial court, yet at the Appellate stage, only matters of law can be properly canvassed. 7. **In conclusion my finding is that the Appeal herein lacks merit and the same is dismissed with costs to the Respondent.** **Judgment** delivered, dated and signed virtually at **Nairobi** this **17th** dayof **July,** 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** *Leadys* – Court Assistant Mr. Godia for Mr. Ogenga the Appellant. N/A for the Respondent.