https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6697

Four Parts Solutions Ltd v Board of Management Khairat girls Muslim Secondary and Technical School (Civil Appeal E149 of 2025) [2026] KEHC 6697 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6697 (KLR) Republic of Kenya In the High Court at Malindi Civil Appeal E149 of 2025 M Thande, J May 15, 2026 Between Four Parts Solutions Limited Appellant and The Board of Management Khairat girls Muslim Secondary and Technical School Respondent Judgment 1.This appeal arises from SCCCOMM No. E265 of 2025 delivered on 27.11.25. 2.The Appellant’s claim before the Adjudicator is that on or about 1.9.23, it entered into an agreement with the Respondent where the Appellant leased to the Respondent a printer described as Samsung CLX-9301 MFP Color (the printer). The Respondent was to pay for its use monthly, based on page count. The Appellant avers that it raised an invoice which the Respondent refused to pay and it filed SCCOMM NO. E013 OF 2025 seeking payment of the arrears. A default judgment was issued on 18.3.25. On 26.5.25, the Appellant sent a technician to the Respondent's premises to uplift the printer because the Respondent failed to comply with the terms of the agreement but found that the printer was not in the Respondent's premises. Upon inquiry, he was informed that the school principal had taken the printer to his home. It was further averred that the Respondent asked the technician to return on 9.6.25 but on that date found the printer was still not available. The Appellant raised an invoice dated 26.5.26 for Kshs. 41,760/= to cater for the transport charges of its technician on 26.5.26 and 9.6.26. 3.The Appellant further stated that it was a term of the agreement that the printer shall not be removed from the agreed location without its prior consent, which the Respondent breached. Following failure by the Respondent to produce the printer, the Appellant raised an invoice dated 30.6.25 for Kshs. 156,600/= being the cost of the printer. The Respondent however neglected to pay the same. 4.After hearing the case, the Adjudicator entered judgment, in favour of the Appellant in the following terms:1.The subject printer machine shall be returned to the Claimant within sixty (60) days from the date of effecting physical service this judgment.2.In default of compliance, the principal who is alleged to have taken the machine home shall be held personally liable and shall pay the Claimant the sum of Kshs. 156,000, being the value of the printer machine.3.The monetary claims for transport and other incidental costs are declined for lack of proof.4.Each party shall bear their own costs. 5.Dissatisfied with the said decision, the Appellant lodged this appeal citing the following grounds of appeal:1.That the learned Adjudicator erred in law and fact by making an order for the return of the printer machine, which was not a prayer sought in the claim.2.That the learned Adjudicator erred in law and fact by entering judgment against a third party who was not privy to the contract between the Appellant and the Respondent.3.That the learned Adjudicator erred in law and fact by entering judgment against a third party who was not a party in the suit, thus making it impossible for the Appellant to execute the decree.4.That the learned Adjudicator erred in law and fact by condemning a third party unheard and going against the rules of natural justice.5.That the learned Adjudicator erred in law and fact by stating that the Respondent is a public institution funded by taxpayer’s money yet there was no evidence to the same. The Honourable Court introduced its own facts.6.That the Honourable Court erred in law and fact by failing to award transport costs to the Appellant yet the same was proved.7.That the Honourable Court erred in law and fact by failing to award costs to the Appellant. 6.The Appellant prayed that the impugned judgment be set aside and that judgment be entered in favour of the Appellant against the Respondent for the payment of Kshs. 198,360/=. The Appellant also prayed for costs in the trial court and in this appeal. 7.The jurisdiction of this Court to hear appeals from a Small Claims Court is set out in Section 38 of the Small Claims Court Act which provides: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. 8.The Appellant faults the Adjudicator for granting orders not sought, namely that the printer in question be returned to the Appellant. 9.It is trite that a court has no jurisdiction to grant orders not specifically pleaded. This was the holding in Caltex Oil (Kenya) Ltd v Rono Ltd [2016] KECA 457 (KLR) where the Court of Appeal stated:This appeal raises two important issues. The first relates to the jurisdiction of this Court as to whether the court has powers to grant an order not specifically pleaded in the plaint, pleadings are a shield and a sword for both sides. They have the potential of informing each party what they expect in the trial before the court. If a party wishes the court to determine or grant a prayer it must be specifically pleaded and proved. The pleadings are a precursor for a party to lead evidence in satisfaction of the prayers he seeks to be granted in his favour. Where no such prayer is pleaded in a specific and somewhat particularized manner, the party is not entitled to benefit and the court has no jurisdiction to whimsically grant those orders. 10.In the prayers in the claim on record, the Applicant had sought the value of the same in the sum of Kshs. 156,600/= plus transport costs amounting to Kshs. 41,760/=. The Appellant did not make a specific prayer in his claim for the return of the printer in question. There is therefore no justification for the Adjudicator to grant an order for the return of the said printer. The Adjudicator thus exercised powers she did not have. On this point I am guided by the Court of Appeal in the cited Caltex Oil (Kenya) Ltd where it was stated:The court has no inherent jurisdiction to award damages whether separate or in addition to specific performance where no such plea was made in its pleadings… to find otherwise would amount to the court exercising a power it does not have and rendering decisions without any parameters or borders which would lead to total disorder and abuse of the judicial process. It would also be a recipe for the formation of public anger against the judiciary. 11.The Appellant also faulted the Adjudicator for holding the principal of the Respondent, who is alleged to have taken the printer home, personally liable to pay to the Appellant the sum of Kshs. 156,000/= being the value of the printer. 12.The circumstances herein are that the Appellant had filed a claim against the Respondent and not against its Principal. By ordering the Principal of the Respondent to return the printer or in default to pay to the Appellant the value of the printer, the Adjudicator condemned the Principal unheard. 13.Our courts have been resolute in upholding the principles of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made. Article 47 of the Constitution guarantees to every person the right to fair administrative action while Article 50 guarantees to every person the right to a fair hearing. A key aspect of these rights is the right to be heard and not be condemned unheard. To this end, all courts are required, in the performance of their judicial function, to uphold the principles of natural justice. Any decision made by a court will be unjust and unfair if the court deprives itself of the views of any party who will be affected in one way or another by the decision. (See Msagha vs. Chief Justice & 7 Others Nairobi HCMCA No. 1062 of 2004 [2006] 2 KLR 553). 14.The legal imperative of hearing a person who is likely to be adversely affected by a decision before the decision is made cannot be overemphasized. In the case of J M K v M W M & another [2015] eKLR, the Court of Appeal observed:The courts of this land have been consistent on the importance of observing the rules of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made. 15.In light of the foregoing, I find that the Adjudicator erred in making adverse orders against the Principal of the Respondent who was not a party in the proceedings, without giving him an opportunity to be heard. 16.The Appellant’s claim before the court below was for the sum of Kshs. 156,600/= being the cost of the printer and the sum of Kshs. 41,760/= being the transport charges of its technician on 26.5.25 and on 9.6.25. There are exhibited invoices for the said amounts totaling Kshs. 198,360/=. I accordingly find that the Appellant is entitled to an order payment of Kshs. 198,360/=. 17.In the end, I find that the Appeal is merited and I allow the same on the following terms:i.The judgment of the Adjudicator delivered on 27.11.25 is hereby set aside and I substitute therefor a judgment in favour of the Appellant against the Respondent for Kshs. 198,360/=.ii.The Appellant shall have costs in the trial court and in this appeal. DATED SIGNED AND DELIVERED IN MALINDI THIS 15TH DAY OF MAY 2026 ____________________ M. THANDEJUDGE