https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8840

Lemaletian v Thuranira t/a Simut Logistics (Civil Appeal E237 of 2025) [2026] KEHC 8840 (KLR) (Civ) (10 June 2026) (Judgment) Neutral citation: [2026] KEHC 8840 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E237 of 2025 AN Ongeri, J June 10, 2026 Between Hon. Senator Hezena M. Lemaletian Appellant and Silas Thuranira t/a Simut Logistics Respondent (Being an Appeal from the Judgement of Hon. V.M. Mochache (ADJ/RM) in Nairobi SCCC No. E7104 of 2023 delivered on 22/03/2024) Judgment 1.The Respondent in this Appeal Silas Thuranira Muturia T/a Simut Logistics was the Claimant in Nairobi SCCC No. E7104 of 2023 where he filed a statement of claim dated 18/9/2023. 2.The Respondent was seeking a sum of Kshs.291,165/- from the Appellant, Hezena M. Lenaletian in respect of Land Scaping Services offered for the Appellant. 3.The Respondent alleged that the landscaping services included the following;i.Building retaining walls, stair cases, ground excavation and levelling and planting flowers, shrubs and ground covers.ii.Installation of mozaras and building a fireplace.iii.Cabros paving. 4.The Respondent issued the Appellant with 3 invoices dated 23/4/2023, 6/6/2023 and 15/6/2024. 5.The Appellant aid the invoices but did not settle a sum of Kshs.291,165.00 6.The Appellant opposed the claim via response dated 18/12/2023. She admitted having contracted the Respondent. 7.However, the Appellant stated that the Respondent did not offer construction and landscaping services in the nature of building a retaining wall, constructing a stair way, round about area and the parking area. 8.The Appellant further stated that she incurred costs for excavation and ground levelling despite the agreement that the claimant was to undertake the tasks. 9.Further, that despite the agreement that the Respondent was to source for all materials in use, the Appellant provided the materials through the site manager and she had to re-do the retaining wall as soon as it collapsed. 10.The appellant also had to rebuild the stairway as it did not meet her expectation. She also undertook construction of the roundabout area and parking. 11.As for the grass, flowers shrubs and ground cover, the grass did not serve the purpose as it was not well planted and the ground cover amounted to waste following the collapse of the retaining wall. 12.In addition, the Respondent fled the site without completing the construction of the fire place area. 13.He also abandoned his construction workers without settling their dues. 14.During the hearing, the Respondent said he contracted to do landscaping and not construction. 15.He said he was a landscaping Architecture. He denied that he left people at site and said he was the last to leave the site. 16.The Trial Court found that there existed a relationship between the parties. 17.However, the terms governing the relationship were not reduced to writing. 18.The Trial Court found that there was a disagreement as to the extent of the services rendered. The Court noted that the oral contract led to issuance of invoices which the parties were relying on. 19.The Trial Court also found that the Appellant failed to plead a set of or counterclaim and concluded that in the circumstances, the Respondent’s case was unchallenged. 20.The Trial Court entered Judgment against the appellant in favour of the Respondent in the sum of Kshs.291,165/- together with costs and interest from the date of filing suit. 21.The Appellant has filed this appeal on the following grounds;i.That the learned adjudicator erred in law and fact in holding for the Respondent yet the Respondent had not discharged the burden of proof to the required standards.ii.That the learned adjudicator erred in law and fact in holding for the Respondent yet throughout his testimony, he had confirmed that he had not performed his part of the contract as had originally been agreed with the Appellant.iii.That the learned adjudicator erred in law and fact in finding for the claimant in circumstances where the very work he was to undertake had collapsed, thereby allowing the claimant to unjustly enrich himself.iv.That the learned adjudicator erred in law in disregarding the appellant’s evidence, which avidly demonstrated that the Respondent herein never fulfilled his contractual obligation, and by doing so, she acted per incuriam.v.That the learned adjudicator erred in law by assisting the Respondent to get payment even without performing its part of the bargain yet it is settled law that the court only assists a party in the enforcement of a contract if the party has performed its part of the bargain.vi.That the learned adjudicator erred in law in holding that the Appellant did not plead with precision the cost of materials she purchased despite there being numerous receipts on record to show the purchase of materials.vii.That the learned adjudicator erred in law by relying on invoices as proof of materials supplied or services rendered by the Respondent. 22.The parties filed written submissions as follows; The Appellant, Senator Hezena Lemaletian, submitted that he appeals against the whole judgment of the Small Claims Court delivered on 22nd March 2024. 23.The Respondent raised a Preliminary Objection arguing that the appeal is incompetent because it challenges findings of fact, not law, contrary to Section 38 of the Small Claims Act. 24.The Appellant concedes that appeals to the High Court from the Small Claims Court are restricted to matters of law but argues this restriction is not absolute. 25.Where a trial court’s factual conclusion is so perverse or unreasonable that no reasonable tribunal could have arrived at it, the High Court may intervene and substitute its own decision. 26.The Appellant cites Fidelity Insurance Company Ltd v Korir to support the proposition that an appellate court can interfere with factual findings if they lead to an error in law. 27.The mere inclusion of phrases such as “erred in fact and law” in the memorandum of appeal does not render the entire appeal defective, provided the grounds raise serious questions of law. 28.In Wamuyu v Inspire Luxe Limited, the court held that it can ignore points of fact and concentrate on points of law rather than striking out the whole appeal. 29.Grounds (d) to (f) of the Appellant’s memorandum of appeal are purely on points of law and therefore fully compliant with the law. 30.Even if grounds (a) to (c) are offensive, the court should strike out only those grounds while retaining the rest, as was done in Best Cars Limited t/a Impact Motors v Omoke. 31.On the merits, the adjudicator found that the Respondent had not performed part of his contractual obligations, admitting he did not purchase certain materials, forcing the Appellant to buy them herself. 32.The Appellant presented evidence that the Respondent’s work was substandard, collapsed soon after completion, and some work was never done at all, requiring re-assignment to another contractor. 33.Despite this evidence of material breach, the trial court still awarded judgment in favour of the Respondent. 34.This decision violates the principle that a court will only assist a party to enforce a contract if that party has performed its own obligations, citing Gitanga Mwaniiki v Annunciata Waithira Kibe and Aziz v Bhatia Brothers Ltd. 35.A party in breach cannot be awarded damages, and the award of Kshs. 291,165 to the Respondent amounts to unjust enrichment, which equity forbids. 36.The Appellant pleaded with precision and proved the costs and expenses incurred due to the Respondent’s breach, including Kshs 150,000, Kshs 80,000, and Kshs 71,000, supported by Mpesa statements and receipts. 37.The trial court’s finding that the Appellant had not pleaded with precision is contradicted by the record, particularly the witness statement of Christopher Lemaletian adopted as evidence in chief. 38.In Richard Okuku Oloo v South Nyanza Sugar Co. Ltd, the Court of Appeal held that the degree of certainty required for special damages depends on the circumstances of the case. 39.The trial court wrongly refused to consider the Appellant’s claim for set-off or counterclaim on the ground that it was not expressly pleaded. 40.A set-off may be implied from the pleadings, and the court should have investigated the claim since it emerged from the Respondent’s own breaches. 41.In Panalpina Airflo B.V v PJ Dave Flora Limited and Twiga Chemical Industries Limited v Rotam Agrochemical Co Ltd, it was held that lack of elegance in pleading does not justify disregarding a discernible claim, and courts should do justice without undue regard to technicalities. 42.The trial court failed to consider or simply disregarded the Appellant’s evidence, which clearly showed the Respondent did not discharge his contractual duties. 43.The High Court is invited to re-evaluate the evidence afresh because the lower court’s decision is manifestly wrong and perverse. 44.Relying on Selle & Another v Associated Motor Boat Co. Ltd and Mungai v Coptic Orthodox Church, an appellate court is not bound to accept the trial court’s findings of fact, especially where the trial court has clearly failed to take account of particular circumstances or probabilities. 45.The trial court erred by relying on invoices as proof of the Respondent’s performance, as courts have repeatedly held that invoices alone are not proof of payment, citing Mohammed Ali & another v Avenue Cargo Enterprises Ltd. 46.The Appellant prays that the Preliminary Objection be dismissed for lack of merit, the appeal be allowed, the decision of the Small Claims Court be set aside in its entirety, and the costs of the appeal be awarded to the Appellant. 47.The respondent submitted that the High Court lacks jurisdiction to hear the appellant’s appeal because Section 38(1) of the Small Claims Court Act limits appeals from the Small Claims Court to the High Court to matters of law only. 48.The respondent contends that the appellant has not raised any valid, cogent, or reasonable point of law in the appeal. 49.Instead, the appellant is challenging facts and evidence from the trial court, which is not permitted under the law. 50.The respondent accuses the appellant of abusing the court process, concealing material facts, and failing to honour the trial court’s decree. 51.Citing the principle that justice must have an end and delay defeats justice, the respondent argues the appeal offends the objects of the Small Claims Court. 52.The respondent invokes equitable principles, stating that the appellant has not come with clean hands as required of one seeking equity. 53.Referring to several precedents, including the Lillian S case, the respondent emphasizes that jurisdiction is everything and a court without jurisdiction must down its tools. 54.The respondent points to the Supreme Court decision in Independent Electoral & Boundaries Commission v. Jane Cheperenger, noting that preliminary objections should be a shield against wasteful deployment of judicial time, not a sword, but in this case the objection is properly raised because the court has no jurisdiction. 55.The respondent therefore asks the High Court to uphold its preliminary objection dated 16th June 2025, strike out the appeal, and dismiss it with costs. 56.Finally, the respondent seeks costs assessed at Kshs. 100,000 in favour of the respondent. 57.The issues for determination in this appeal are as follows;i.Whether the High Court has the requisite jurisdiction to entertain the appeal under Section 38 of the Small Claims Court Act given that the grounds largely contest factual findings, andii.Whether the trial court erred in law by entering judgment for the respondent on the basis of unchallenged unpleaded claims of set-off or counterclaim. 58.This Court has evaluated the records, the rival submissions, and the statutory framework under Section 38(1) of the Small Claims Court Act, which strictly restricts appeals to the High Court on matters of law only. 59.As emphasized in the celebrated Lillian S case(supra), jurisdiction is everything and a court without it must down its tools. 60.The appellate jurisdiction over Small Claims Court decisions is narrow by design to ensure finality and speedy resolution of low-value commercial disputes, meaning factual dissatisfaction alone cannot invoke this court's intervention. 61.While the respondent's preliminary objection properly notes that the appellant’s memorandum of appeal mixes law and fact, the law does not sanction the automatic striking out of an entire appeal if discernible points of law can be severed. 62.Following the precedent in Wamuyu v Inspire Luxe Limited(supra), this court will ignore the offensive points of fact and concentrate solely on the points of law. 63.The appellant correctly contends that a trial court commits an error of law where its factual conclusions are so perverse or unreasonable that no reasonable tribunal could have arrived at them on the evidence, as articulated in Fidelity Insurance Company Ltd v Korir(supra). 64.On the merits, the appellant argues that the trial court ignored material evidence of the respondent's breach and unjust enrichment, running afoul of the principles in Gitanga Mwaniiki v Annunciata Waithira Kibe(supra). 65.However, the fundamental legal hurdle that the appellant failed to clear at the trial stage was procedural, as Section 32 of the Small Claims Court Act relaxes procedural technicalities but does not absolve a party from the mandatory obligation to plead a set-off or a counterclaim if they intend to defeat a liquidated financial claim with their own counter-expenditures. 66.The trial court correctly found that the appellant admitted the existence of the contract and the non-payment of the balance of Kshs. 291,165. 67.While the appellant cited Panalpina Airflo B.V v PJ Dave Flora Limited(supra) to argue that lack of style in pleadings should not defeat justice, a total failure to formally plead a set-off or counterclaim cannot be treated as a mere technicality. 68.Without such a pleading, the respondent's claim for services rendered remained legally unchallenged as a matter of debt recovery, and the invoices, coupled with the admitted contract, provided a sufficient basis for the adjudicator's final determination. 69.The trial court's decision was neither wrong nor an abuse of discretion, and consequently, this court finds no reason to upset the lower court's judgment. 70.The appeal is hereby dismissed with costs to the respondent. 71.Orders to issue accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JUNE, 2026.ASENATH ONGERIJUDGEJudgment delivered in the absence of the parties.