https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12379

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUSIA** **CIVIL APPEAL NO E046 OF 2025** **DAWAMEDS HOSPITAL LIMITED………………………………..APPELLANT** **VERSUS** **BETH WAMBUI T/A NOMAD OPTICIAN……………………...RESPONDENT** *(Being an appeal from the Ruling of Hon A. Z. Ogange (Adjudicator) delivered at Busia Small Claims Court Commercial Case No E028 of 2025 on* *18th June 2025)* **JUDGMENT** **INTRODUCTION** 1. In her decision of 18th June 2025, the Adjudicator, Hon A. Z. Ogange, dismissed the Appellant’s Preliminary Objection dated 10th June 2025. 2. Being aggrieved by the said decision, on 1st July 2025, the Appellant herein filed a Memorandum of Appeal of even date. He relied on five (5) grounds of appeal. 3. His Written Submissions were dated 17th December 2025 and filed on 18th December 2025 while those of the Respondent were dated and filed on 30th January 2026. The Judgment herein is based on the said Written Submissions which parties relied upon in their entirety. **LEGAL ANALYSIS** 1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 2. This was aptly stated in the case of **Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123** where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 3. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the only issue that had been placed before it for determination was **whether or not the Learned Adjudicator erred in dismissing the Appellant’s Preliminary Objection dated 18th June 2025 on territorial jurisdiction.** 4. **The Appellant invoked Sections 4 and 11 of the Small Claims Court Act and submitted that in fulfilling her mandate as per the said provisions and the Constitution, the Chief Justice through Kenya Gazette Vol-CXXV-NO 206 Gazette Notice No 12405 established the Malaba Small Claims Court to exercise jurisdiction within Busia County. It argued that from the said gazette notice, it followed that the local limits of the jurisdiction of Malaba Small Claims Court was Busia County.** 5. **It asserted that none of the parties hailed from Busia and that the supply of goods was done in Bungoma from Nairobi. He was emphatic that the two counties were outside the jurisdiction of Malaba Small Claims Court and thus it followed that it was an error on the part of the Adjudicator in holding that the cause of action in the matter had a connection with the local jurisdiction of the Small Claims Court in Malaba as no such connection existed.** 6. **It was emphatic that the Adjudicator erred in law in holding that it had jurisdiction to hear and determine the claim herein as the same amounted to assuming jurisdiction through judicial craft. It placed reliance on the case of** **CM & A Logistics Limited vs Upland Premium Diaries and Foods Limited [2022] KEHC 14428 (KLR) where it was held that while the Small Claims Court Act (SCCA) provides for the local limits of jurisdiction of the court, it does not state or define the place of suing and Wangui vs Evergreen Ever Limited[2024] KEHC 15827 (KLR) where it was held that the jurisdiction of the Small Claims Court is established under Section 15 of the Small Claims Act.** 7. **It urged this court to find merit on its appeal and allow the same with costs.** 8. **On her part, the Respondent submitted that it was not in dispute that the cause of action arose in Bungoma County and that the Appellant also resided in Bungoma County. She was categorical that she filed the claim in Malaba Small Claims Court for reasons that Bungoma County lacks a Small Claims Court.** 9. **She explained that the Trial Court relied on Section 4(3) of the Small Claims Court Act 2016 as read with Article 6(3) of the Constitution of Kenya, 2010. She asserted that the said provisions allowed for jurisdiction to be defined in terms of sub-counties or other decentralized units and thus supported the decentralization of judicial services and ensured that justice is accessible even in areas without a designated Small Claims Court.** 10. **She urged the court to be guided by Article 48 and 159(2) of the Constitution of Kenya, 2010 as was held in the case of Wachuri vs 15 Minutes Logistics Limited & 2 Others (eKLR citation not given). She was emphatic that filing the claim in Malaba was not an abuse of the court process but was due to the absence of a Small Claims Court in Bungoma County, making Malaba th closest available forum. She added that striking out the claim would deny the Claimant access to justice, contrary to the principles of the Constitution.** 11. **She further urged the court to rely on the doctrine of necessity to avoid a miscarriage of justice. In this regard, she relied in the case of Margaret Kisingo Muga & 21 Others vs County Government of Mombasa & 2 Others [2020]eKLR where it was held that the doctrine of necessity was a term used to describe the basis on which extraordinary actions by administrative authority, which are designed to restore order or uphold fundamental constitutional principles are found to be constitutional even if such an action would normally be deemed to be in contravention to established norms or conventions.** 12. **She was categorical that the absence of a Small Claims Court in Bungoma County revealed a gap in judicial service delivery that could be cured by invoking the doctrine of necessity. She further cited the case of Rawal & 2 Others vs Judicial Service Commission & 2 Others; Okoiti (Interested Party); International Commission of Jurists & 2 Others (Amicus Curiae)[2016]eKLR where it was held that the doctrine of necessity would not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of such injustice.** 13. **She contended that the Appellant shall not suffer any prejudice if the court determines the Claim. She urged the court to dismiss the appeal with costs.** 14. **Section 4 of the Small Claims Court Act, Cap 10A (Laws of Kenya) provides the establishment of the Small Claims Courts. It provides as follows:-** **(1) There is established a court to be known as the Small Claims Court which shall be a subordinate Court pursuant to Article 169(1)(d) of the Constitution.** **(2) Pursuant to Article 6(3) of the Constitution, the Chief Justice shall, by notice in the *Gazette*, designate any Court station as a Small Claims Court with such geographical jurisdiction as may be specified in the notice.** **(3) Notwithstanding subsection (2), the geographical jurisdiction may be in relation to a sub-county or other units of decentralization in compliance with Article 6(3) of the Constitution.** 1. Section 15 further provides for Parties to proceedings before the Court. It provides as follows:- **(1) A person has the right to lodge a claim before the Court only if—** **(a) such a person ordinarily resides or carries on business within the local limits of the jurisdiction of the Court;** **(b) the subject matter of the claim is situated within the local limits of the jurisdiction of the Court;** **(c) the contract to which the claim relates was either made or was intended to be performed within the local limits of the jurisdiction of the Court;** **(d) the cause of action arose within the local limits of the jurisdiction of the Court; or** **(e) the defendant to the claim resides within the local limits of the jurisdiction of the Court.** **(2) Without prejudice to subsection (1), any person against whom notice of a claim has been served under** [**section 25**](https://new.kenyalaw.org/akn/ke/act/2016/2/eng%402022-12-31#part_IV__sec_25) **shall be party to the proceedings of that claim.** 1. This court had due regard to the case of **CM & A Logistics Limited vs Upland Premium Diaries and Foods Limited (Supra), where Majanja J (may his soul rest in eternal peace) rendered himself as follows: -** ***“While the SCCA provides for the local limits of jurisdiction of the court, it does not state or define the place of suing. Unlike the*** [***Civil Procedure Act***](https://new.kenyalaw.org/akn/ke/act/1924/3) ***(Chapter 21 of the Laws of Kenya), which at sections 11 to 15 provides for the place of suit, the SCCA does not so provide. Since the*** [***Civil Procedure Act***](https://new.kenyalaw.org/akn/ke/act/1924/3) ***does not apply to the SCCA, the test for place of suing cannot be constrained by place of business rather the court only needs to be satisfied the subject of the suit has a connection to the local jurisdiction.****”* 1. **This was to mean that the territorial jurisdiction rules under the Small Claims Court Act was wide and ambiguous and not as specific as those of the Civil Procedure Act.** 2. **Be that as it may, before mid-2026, many litigants in the wider western region (including Bungoma) frequently utilized neighboring operational border registries like Malaba or Busia Small Claims Court due to lack of closer local stations. In fact, matters filed in Busia Small Claims Court from Bungoma would be re-directed to the Small Claims Court in Malaba. This was purely on administrative accessibility. It was on this basis that the Adjudicator in Malaba Small Claims Court held that the court had the territorial jurisdiction to handle the matter herein at that time.** 3. **However, in May 2026, the Judiciary launched the Bungoma Small Claims Court. Therefore, before mid-2026, filing matters in Malaba whose cause of action arose in Bungoma was often permitted on the grounds of administrative accessibility and that explained why the Adjudicator dismissed the Appellant’s Preliminary Objection dated 10th June 2025 on territorial jurisdiction.** 4. **This court could, therefore, not fault the Adjudicator for having held that she had the jurisdiction of handling the matter at the time.** 5. **However, as at now, the Respondent should transfer her matter from Malaba Small Claims Court to the Small Claims Court in Bungoma in the event she was willing to proceed with prosecuting the same.** 6. In the premises, the Grounds of Appeal No (1), (2), (3), (4) and (5) were not merited and the same be and are hereby dismissed. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s appeal that was lodged on 1st July 2025 was not merited and the same be and is hereby dismissed. 2. The Appellant shall bear the costs of this appeal. Orders accordingly. **DATED** and **DELIVERED** at **BUSIA** On this **23rd day of July 2026** **S. MOHOCHI** **JUDGE**