[2024] KEHC 5277 (KLR)

Home Seekers Limited & another v Macharia (Civil Appeal E115 of 2023) [2024] KEHC 5277 (KLR) (9 April 2024) (Judgment)

Neutral citation: [2024] KEHC 5277 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E115 of 2023

DKN Magare, J

April 9, 2024

Between

Home Seekers Limited

1st Appellant

Mana Abdulahad

2nd Appellant

and

Milicent Wanjiku Macharia

Respondent

Judgment

1. This is an Appeal from the Judgment and Decree of the Honourable Gatambia Ndungu made on 17/4/2023 in Mombasa SCCOM No. E006 of 2023. The Appellant were the Respondents. The Respondent was a tenant in a plot managed by the Appellants. It is not clear the relationship inter se but they are the landlord’s agents.

2. Vide a claim dated 12/1/2023, the Respondent raised a claim against the respondents as the landlord’s agents on the state of her house tap that reportedly flooded and destroyed some of her goods. The water was very selective. I did not destroy any low value things. It only destroyed an IPAD, TV, and other high value goods. Given that this court cannot deal with fact and evidence, it will ignore the fact that this is the same tenant who was in arrears and had to be distressed.

3. A demand notice was made over the alleged damages over plot No. 001. B429 Bamburi. This was clearly a tenancy dispute. The reason tenancy is dealt with separately; it has certain ramifications that has a bearing over law which we are forbidden from handling. The rule of the thumb is that if the high court cannot handle, the Small Claims Court cannot handle the same. There is no opening in the court for Appeal to the Environment and Land Court.

4. In their response, the Appellant denied liability. They stated that the issue of taps were part of the Respondent’s duty as a tenant. The Respondent was under duty from the lease not to waste or misuse water and keep the interior in a state of repair. These are presumptions and rights appertaining to tenants and landlords.

5. The respondents stated that the issue actually did not arise. It is on that they had proclaimed for rent arrears. The Respondent’s witness Ali Wangara was also of the view that this was a tenancy.

Analysis 6. The Appeal is on the ground that the Learned adjudicator erred in finding in favour of the Respondent. This is addressed by the three grounds of Appeal. The three grounds are that: -i.The learned magistrate erred in law in failing to find that special damages have to be specifically pleased and strictly proved.ii.The learned magistrate erred in law in failing to find that in law an agent of a known principal cannot be sued.iii.The learned magistrate erred in law in failing to find that he had no jurisdiction over a claim based on breach of landlord tenancy contract.

7. It is unnecessary to deal with the second ground. It will be for another day, another matter another issue. The 2 grounds are sufficient to dispose the Appeal.

8. This being an Appeal from the Small Claims Court, the duty of the court is circumscribed under 38 of the Small Claims Court Act which provides as doth:(1)A person aggrieved by the decision or an order Appeals. 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. The duty of the court is to defer to the findings of fact of the adjudicator and analyse the matter for issues of law. The issues of law are either due to the subject matter or the finding of law by the court. In the case of Mbogo and Another v Shah [1968] EA93, the court of Appeal stated as doth:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

10. However, an Appeal of this nature is on points of law. It can be pure points of law or mixed points of law but points of law it is. Given that the second issues herein is a question of mixed facts and law, the court shall not delve into it. It is only useful when it is the only decisive point.

11. An appeal on points of law is akin to a second appeal to the court of Appeal. The duty of a second Appeal was set out in the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR: -“This is a second appeal. I am alive to my duty as a second appellate court to determine 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. (See: Stanley N. Muriithi & Another versus Bernard Munene Ithiga [2016]eKLR).”

12. Then what constitutes a point of law? In Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, [2014] eKLR, the court stated as doth: -“4. Although the phrase ‘a matter of law’ has not been defined by the Elections Act, it has been held in Timamy Issa Abdalla Vs Swaleh Salim Swaleh Imu & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, Makhandia & Sichale, JJA) of 13. 01. 2014 that a decision is erroneous in law if it is one to which no court could reasonably come to, citing Bracegirdle v Oxney [1947] 1 All ER 126. See also Khatib Abdalla Mwashetani v Gedion Mwangangi Wambua & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, M'inoti & Sichale, JJA) of 23. 01. 2014 following AG v David Marakaru [1960] EA 484. ”

13. In Peter Gichuki King'ara v Iebc & 2 Others, Nyeri Civil Appeal No. 31 Of 2013 (Court Of Appeal) (Visram, Koome & Odek, JJA) Of 13. 02. 2014, the court of Appeal held as follows: -“it was held that it is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanour – is an issue of law.”

14. The main issue for determination in this case is whether the Trial Court erred in law in dismissing the Appellant’s suit. A point of law is similar to a preliminary point of law but has a broader meaning. Justice prof J.B. Ojwang J (as he then was) succinctly addressed the issue of preliminary objection in the case of Oraro v Mbaja [2005] eKLR:“I think the principle is abundantly clear. A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.

15. The timelines for small claims are punishing. It is therefore imperative that the case facing Parties be clear and succinct. Mere allegations will not count. Parties must know that it is a court of law and not a kangaroo court or a baraza. Pleadings are therefore paramount. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, A C Mrima stated as follows: -“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. v Stephen Mutinda Mule & 3 others [2014] eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) v Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

16. The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another v IEBC & 2 others [2017] eKLR found and held as follows in respect to the essence of pleadings in an election petition: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”

17. The pleadings in court were for a tenancy agreement. Parties cannot by craft confer on the court jurisdiction it does not have. in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the supreme court stated as doth: -“This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

18. The court must therefore assume jurisdiction where it has and eschew usurping jurisdiction where none exists. A rose by any other name smells sweet, the Bard in Romeo and Juliet. The court was duty bound to read the relationship and interprete it as such. In Fidelity & Commercial Bank Ltd v Kenya Grange Vehicle Industries Ltd [2017] eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;-“Courts adopt the objective theory of contract interpretation and profess to have overriding view sometimes called Four Corners of an Instrument, which insists that a documents meaning should be derived from the document itself, without reference to anything outside of the document, extrinsic reversed…”

19. The dispute was a tenancy one and nothing more nothing less. By dint of section 12 of the small claims court the court did not have jurisdiction. the same provides as follows: -12. Nature of claims and pecuniary jurisdiction (1) Subject to this Act, the Rules and any other law, the Court has jurisdiction to determine any civil claim relating to— (a) a contract for sale and supply of goods or services; (b) a contract relating to money held and received; (c) liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property; (d) compensation for personal injuries; and (e) set-off and counterclaim under any contract. (2) Without prejudice to the generality of subsection (1), the Court may exercise any other civil jurisdiction as may be conferred under any other written law. (3) The pecuniary jurisdiction of the Court shall be limited to one million shillings. (4) Without prejudice to subsection (3), the Chief Justice may determine by notice in the Gazette such other pecuniary jurisdiction of the Court as the Chief Justice thinks fit.

20. Section 13 of the small claims court act excludes jurisdiction as doth: -“13. Exclusion of jurisdiction(1)If a claim has been lodged with the Court, no proceedings relating to the same course of action shall be brought before any other Court except where the—(a)proceedings before that other Court were commenced before the claim was lodged with the Small Claims Court; or(b)claim before the other Court has been withdrawn.(2)A claim shall not be brought before the Court if proceedings relating to that claim are pending in or have been heard and determined by any other Court.(3)Subject to section 12(3), a higher court may transfer a claim to a Small Claims Court.(4)For the purposes of this section, a claim is deemed to have been lodged with the Court in any case where section 23 has been complied with.(5)A claim shall not be brought before the Court if the cause of action is founded upon defamation, libel, slander, malicious prosecution or is upon a dispute over a title to or possession of land, or employment and labour relations.

21. What constitutes land is set out in section 13 of the Environment and land court Act. This governs disputes under Article 162(2). The small claims court cannot deal with tenancy disputes. As rightly submitted by the Appellant it amounts to a dispute over land, in the case of Mocha hotels ltd versus kwanza estates.

22. Immediately the word lease turned up, the court ought to have known that he was entering un- chattered waters. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Justice Nyarangi JA, as he then was stated as doth;“With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what

23. I have already said is consistent with authority: “By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics.”

24. There were no allegations on the nature of actions that led to the tap flooding. However, being in Mombasa, with high salinity, nothing can be ruled out. There was no claim for breach of contract or some tort. The dispute was on a tenancy agreement. Some un named goods worth 139100 were allegedly destroyed. The respondent did not bother to produce any evidence or plead specifically.

25. In the case of David Bagine v Martin Bundi[1997] eKLR, the court of Appeal stated as follows: -“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v City Council of Nairobi [1982-88] IKAR 681 at page 684: "....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter v Hyde Park Hotel Limited [1948] 64 TLR 177 thus:“Plaintiffs must understand that if they bring actions for damages it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it"The respondent’s main complaint was that they failed to make the tenancy habitable and fit for purpose. They accused the Appellants for failing to carry out house repairs and maintenance. This was repeated in her witness statement that she had a tenancy agreed, which she was forced to sign and backdated. It is this kind of plead that make me recall the words of Justice C B Madan as he then was) had in mind when in N vs. N [1991] KLR 685 when he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”

26. Special damages were not specifically pleaded. There was no need of going into proof. In any case, the court did not make a finding that they were proved. He only awarded as allegedly proved. There is no room for doing so.

27. Therefore, I find merit in the Appeal. On costs, there are 2 aspects. Costs in the lower court and costs for the Appeal herein. Section 33 of the Small claims court provides that the court may award costs to a successful party. The Appellant is a successful party. There is nothing stopping the court from awarding them costs.

28. Award of costs in this court are governed by section 27 of the civil procedure act. They are discretionally. The Supreme Court has set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -“(18)It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases."

29. Since costs follow the event, the Appellants are entitled to costs of the Appeal. A sum of Ksh 45,000/= will be right and just.

Determination 30. In the upshot, I make the following Orders:i.Judgment and Decree of the Honourable V. Muthoni made on 14/9/2023 in Mombasa SCCOM No. E472 of 2023 is hereby set aside. In lieu thereof, I substitute with an order, dismissing the suit in the small claims court.ii.The Appellants shall have costs of the Small Claims Court.iii.The Appellant shall have the cost of this Appeal of Ksh. 45,000/=.iv.30 days stay of execution.v.If any amount was paid, the same shall be refunded to the Appellants.vi.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 9TH DAY OF APRIL,2024. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:M/s Mutisya Mwanzia and Ondeng Company Advocates for the AppellantM/s Bennette Nzamba & company Advocates for the RespondentCourt Assistant – Norah/Michael