Hamu Ventures Ltd & another v East African Business Company Ltd & another (Civil Appeal E625 of 2024) [2026] KEHC 8487 (KLR) (Civ) (22 May 2026) (Judgment)

Hamu Ventures Ltd & another v East African Business Company Ltd & another (Civil Appeal E625 of 2024) [2026] KEHC 8487 (KLR) (Civ) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 8487 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E625 of 2024 AC Mrima, J May 22, 2026 Between Hamu Ventures Limited 1st Appellant Harmeet Kaur 2nd Appellant and East African Business Company Limited 1st Respondent John Muia 2nd Respondent (Being an appeal against the Judgment and Decree of Hon. Wamae E. M Muindi in Small Claims Court Commercial Case No. 3703 of 2024 delivered on 17th May 2024) Judgment Background: 1.The instant appeal emanates from the default judgment in Nairobi [Milimani] Small Claims Court Commercial Case No. 3703 of 2024 (hereinafter referred to as ‘the suit’) where Hamu Ventures Limited and Harmeet Kaur the Appellants herein, were ordered to pay East African Business Company Limited, the 1st Respondent herein, Kshs. 178,980.61/- for farm chemicals supplied. 2.In a synopsis, the 1st Respondent instituted the suit on 9th April 2024. The Appellants were allegedly served with the pleadings on the same date. Following service, the Appellants filed a Notice of Appointment of Advocates on the 18th April 2024. The statutory 15-day period for the Appellants to enter an appearance and file a response lapsed on the 24th April 2024. 3.When the matter came up for mention on the 26th April 2024, the Appellants’ Counsel sought, and was granted, leave to file a Statement of Response out of time, with the next Court date scheduled for the 14th May 2024. The Appellants eventually filed and served their Response on the 15th May 2024. However, on the 16th May 2024, the trial Adjudicator, entered a default judgment in favour of the 1st Respondent. It was that default judgment that prompted the instant appeal which was disposed of by way of written submissions. The 2nd Respondent, however, did not participate in the appeal. The Appeal: 4.Aggrieved by the decision of the Learned Adjudicator, the Appellant filed a Notice of Appeal dated May 2024. The Notice indicates dissatisfaction with the decision rendered by the Small Claims Court and states the intention to appeal against the whole of the said decision. However, it is imperative to note that the Appellant did not file a Memorandum of Appeal to formally institute the specific grounds of the appeal before this Court. Be that as it may, the Appellant filed joint written submissions. The Submissions: 5.The Appellants submissions were dated 30th May 2025. They contended that the Learned Adjudicator erred in law and fact by entering a default judgment against them despite their Statement of Response being on record as of the 15th May 2024. They argued that the Small Claims Court is mandated to hear and determine matters within 60 days, and that on the 16th May 2024, the Court was well within this timeline. Consequently, they submitted that no harm would have been suffered by the Claimants had the Court issued a hearing date. 6.The Appellants faulted the trial Court for failing to consider their excuses for the delay in filing. To contextualize their delay, they referred to the case of Njoroge -vs- Kimani (Civil Application Nai E049 of 2022)[2022] KECA 1188 (KLR), which defines excusable delays as those that are unforeseeable and beyond the control of the party. 7.Invoking Article 50 of the Constitution, the Appellants asserted their fundamental right to be heard. They argued that setting aside a default judgment is a matter of right because a party should not be condemned without an opportunity to respond to the allegations. They anchored their position on the case of Onyango Oloo -vs- Attorney General [1986-1989] EA 456 and the Supreme Court of India decision in Sangram Singh -vs- Election Tribunal, Koteh, AIR 1955 SC 664, at 711, which underscores that laws of procedure are grounded on natural justice requiring that men should not be condemned unheard. 8.In addition to the foregoing, the Appellants framed the default judgment as irregular. Relying on Frigonken Ltd v. Value Pak Food Ltd, HCCC NO. 424 of 2010 and Kabutha v. Mucheru, HCCC No. 82 of 2002, they submitted that an irregular default judgment must be set aside ex debito justitiae as a matter of judicial duty to uphold the integrity of the judicial process, rather than as an exercise of discretion. 9.The Appellants further asserted that they possess an arguable defence that warrants the trial Court’s consideration. They cited Nambuki & another v National Land Commission & 2 others (Civil Application E092 of 2024) [2024] KECA 534 (KLR) to emphasize that an arguable ground is one that is not frivolous and raises a bona fide issue for the court. 10.Finally, relying on Section 78 of the Civil Procedure Act and the precedent set in Selle -v-s Associated Motor Boat Co. Ltd [1969] E.A. 123, they urge this Court, acting as a first appellate Court, to subject the evidence to fresh and exhaustive scrutiny. They prayed that the appeal be allowed with costs. The 1st Respondent’s case: 11.The 1st Respondent vehemently opposed the appeal through written submissions dated 28th November 2025. It was its case that the Learned Adjudicator exercised her discretionary powers judiciously and within the bounds of the law by entering a default judgment. It relied heavily on Section 27(1) of the Small Claims Court Act, which states that if a Respondent fails to respond to a claim within the prescribed period, the Court may enter judgment for the claimant. It argued that the Appellants blatantly failed to adhere to statutory timelines, noting that the 15-day compliance period expired on the 24th April 2024 before the Appellants took substantial action. 12.It was the 1st Respondent’s case that the trial Court was kind in granting the Appellants leave on the 26th April 2024 to file out of time which they failed to honour, effectively waiving their right to be heard. The 1st Respondent pointed to Section 17 of the Small Claims Court Act, which grants the Court control over its own procedure, affirming that the adjudicator was well-guided. 13.Crucially, the 1st Respondent challenged the procedural propriety of the instant appeal. They submitted that under Section 43 of the Small Claims Court Act, the appropriate remedy for an aggrieved party is to apply to the trial Court to set aside its orders. By ignoring the trial Court’s power and proceeding directly to file an appeal in full ignorance of the law, the Appellants abused the Court process. It prayed that the appeal be dismissed with costs. Analysis and Determination: 14.Having considered the Notice of Appeal and the rival written submissions, the following issues fall for determination: -i.The competence of the appeal.ii.Depending on (i) above, the propriety of the default judgment. 15.The jurisdiction of the High Court sitting as an appellate Court over decisions of the Small Claims Court is strictly circumscribed. Under Section 38(1) of the Small Claims Court Act, an appeal from the Small Claims Court to the High Court lies exclusively on matters of law and such an appeal is final. Before venturing to the issues identified above, it is imperative to generally look at what matters of law are. 16.Whereas there has been no universally accepted definition of the term ‘matters of law’, there has been some working definitions thereto. The term ‘point of law’ may also be referred to as ‘matter of law’. The Black’s Law Dictionary defines ‘a matter of fact’ and ‘a matter of law’ as follows: -Matter of fact: A matter involving a judicial inquiry into the truth of alleged facts and Matter of law: A matter involving a judicial inquiry into the applicable law. 17.Lord Denning, J in Bracegirdle vs. Oxley (2) [1947] 1 ALL E.R. 126 at p 130 in espousing the two terms had the following to say: -…. The question whether a determination by a tribunal is a determination in point of fact or in point of law frequently occurs. On such a question there is one distinction that must always be kept in mind, namely, the distinction between primary facts and conclusions from those facts. Primary facts are facts which are observed by the witnesses and proved by testimony; conclusions from those facts are inferences deducted by a process of reasoning from them. The determination of primary facts is always a question of fact. It is essentially a matter for the tribunal who sees the witnesses to assess their credibility and to decide the primary facts which depend on them. The conclusions from those facts are sometimes conclusions of fact and sometimes conclusions of law. In a case under the Road Traffic Act, 1930, s. 11, the question whether a speed is dangerous is a question of degree and a conclusion on a question of degree is a conclusion of fact. The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts, and that is the case here. The conclusion drawn by these justices from the primary facts, was not one that could reasonably be drawn from them. 18.Drawing from the above, the Court of Appeal in Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR sated as under: -…. That reasoning has been adopted in this jurisdiction. In A.G. Vs. DAVID MURAKARU [1960] EA 484, for instance, Chief Justice Ronald Sinclair sitting with Rudd J. adverted to the factual foundations of legal questions by stating that an appellate court restricted to determining questions of law may yet quite properly interfere with the conclusion of a lower court if the same is erroneous in point of law. This is the case where that lower court arrives at a conclusion on the primary facts that it could not reasonably come to. Such a conclusion or decision becomes an error in point of law. See also PATEL vs. UGANDA [1966] EA 311 and SHAH Vs. AGUTO [1970] EA 263. 19.Earlier, the Court of Appeal in M’riungu and Others -vs- R [1982-88] 1 KAR 360 observed thus: -…. We would agree with the views expressed in the English case of Martin v Glyneed Distributors Ltd (t/a MBS Fastenings) [1983] 1 CR 511 that where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, and, it should not interfere with the decision of the trial of first appellate court 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 law. 20.Later, the Court of Appeal in Charles Kipkoech Leting -vs- Express (K) Ltd & another [2018] eKLR discussed what entails matters of laws as the Court considered its role as a second appellate Court. It observed thus;…. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina -vs- Mugiria [1983] KLR 78, Kenya Breweries Ltd v Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & another v Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters, they should not have considered or failed to consider matters they should have considered or, looking at the entire decision, it is perverse….. 21.And, in Peter Gichuki King'ara vs. IEBC & 2 others, Nyeri Civil Appeal No. 31 of 2013, Court of Appeal held that a decision challenged on the basis of wrongful exercise of discretion raises a point of law. [See also Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR]. 22.From the foregoing, an appeal on matters of law calls upon the appellate Court to steer clear of findings of fact derived from primary evidence and to also restrain itself from treating findings of fact as holdings of law or mixed findings of fact and law unless the findings are so perverse as to defeat the object of justice. 23.In discharging its appellate role in matters from the Small Claims Court, the High Court should remain alive to the rationale behind the establishment of the Small Claims Court as a special and unique Court which is different from the mainstream civil Courts. It must always be remembered that the focal point of the Small Claims Courts is expeditious disposal of cases and that is why the Court is not bound by the strict rules of evidence [Section 32 of the Small Claims Court Act] and further the Court has power to control of its own procedure in determining any claim before it subject to regard to the principles of natural justice [Section 17 of the Act]. The High Court, therefore, is duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses in view of the various decisions referred to above. 24.Based on the foregoing, this Court shall now deal with the issues. The competence of the appeal: 25.The competence of the appeal comes up in two sub-issues. The first sub-issue relates to the Appellants’ filing of a Notice of Appeal and not a Memorandum of Appeal. The second sub-issue is on whether the Appellants were to, in the first instance, seek to set aside the default judgment prior to preferring an appeal. 26.This Court will now deal with the first sub-issue. Suffice to state that, despite the fact that the sub-issue was not raised by the parties, this Court has a legal duty to ascertain whether it has jurisdiction in the matter before taking any further step [See the Court of Appeal in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment)]. It is on that background that this Court will consider the matter lest it be accused one day of failing to ascertain whether it was properly seized of jurisdiction. 27.Having said so, the record indicates that the Appellant filed a Notice of Appeal sometimes in May 2024. However, it failed to file a Memorandum of Appeal. The position is confirmed in both the physical file and the Judiciary’s Case Tracking System. Whereas Section 38 of the Small Claims Court Act provides for appeals to the High Court, it is Rule 30 of the Small Claims Courts Rules, 2019 that provides for the appellate procedure as follows: -30.AppealsA person aggrieved by the judgment or order of the Court may, pursuant to section 38 of the Act, appeal to the High Court in accordance with Order 42 of the Civil Procedure Rules. 28.For clarity Order 42 Rule 1 of the Civil Procedure Rules stipulates thus;Form of appeal [Order 42, rule 1](1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.(2)The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively. 29.It is instructive to note that the above provision, as well as the entire Order 42 of the Civil Procedure Rules, do not provide for the filing of a Notice of Appeal, but instead, a Memorandum of Appeal. The practise of filing Notices of Appeal is statutorily the preserve of appeals from the High Court to the Court of Appeal. Therefore, in appellate practice before the High Court, unless otherwise expressly stated in law, a Memorandum of Appeal is the foundational pleading upon which all other actions derive from. 30.This Court notes that in order to fast-track the determination of the appeal, it dispensed with the filing of a Record of Appeal and instead called for the trial Court file. That action on the part of this Court cannot be construed as a waiver of filing of the Memorandum of Appeal given the centrality of the document. More so, the order dispensing the filing of a Record of Appeal was made on 29th April 2025, around one year later from the filing of the Notice of Appeal. 31.This Court then notes that, the Appellant’s failure to file the Memorandum of Appeal in view of the prescription of under Section 38(1) of the Small Claims Act, which limits an appeal to this Court to matters of law only, strips this Court of its ability to discern the matters of law raised. It thus renders this Court’s entire appellate jurisdiction fundamentally defective. For emphasis, it is the Memorandum of Appeal which upon setting out the grounds of appeal will enable this Court to ascertain whether its jurisdiction under Section 38 of the Small Claims Court Act is properly invoked. Therefore, given the foundational nature of the Memorandum of Appeal, even a plausible explanation for its omission will not give life to an appeal. The failure to file a Memorandum of Appeal renders an appeal stillborn. It is a mis-step that cannot even be rescued courtesy of Article 159[2][d] of the Constitution since it is a fundamental and procedural lapse that runs into the heart and substance of the appeal. 32.The above position was affirmed by the Supreme Court in Petition (Application) No.17 of 2019, Alfred Asidaga Milima & 2 Others -vs- The AG & 8 Others where the Court approvingly referred to its earlier decision in Hamida Yaroi Shek Nuri -vs- Faith Tumaini Kombe & 2 others Petition (Application) No. 38 of 2018 where the importance of parties adhering to rules of procedure was discussed in the following manner: -(19)We have previously held in Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others Petition (Application) No. 38 of 2018 that where a required document is lacking in the record of appeal, devoid of a sufficient explanation for the omission, then the said record is one for striking out…… 33.Based on the foregoing, the entire appeal suffers a false start and a consideration of any of the rest of the issues will not aid the Appellants in any way. As such, this Court opts to rest this matter here. Disposition: 34.Deriving from the above discussion, the following final orders hereby issue: -(a)The Appeal is hereby struck out.(b)Parties shall bear their respective costs of the appeal.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF MAY,2026.A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Ms Kirima, Learned Counsel for the Appellant.Ms Mkunga, Learned Counsel for the 1st Respondent.Mr. Lock, Learned Counsel for the 2nd Respondent.Michael/Amina – Court Assistants.