https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10968

Agengo v Wandera (Small Claims Appeal E003 of 2025) [2026] KEHC 10968 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10968 (KLR) Republic of Kenya In the High Court at Kisumu Small Claims Appeal E003 of 2025 LM Wachira, J July 17, 2026 Between Jacob Ogweno Agengo Appellant and Pamela Nekesa Wandera Respondent (Being an Appeal from the Judgment of N.A. Moguche delivered on 30th April 2025 in Kisumu SCCCOM No. E258 of 2025) Judgment Introduction 1.This is an Appeal from the judgment of N.A. Moguche Adjudicator delivered in the primary claim E258 of 2025, on 30th April 2025. In the said claim, the Adjudicator entered judgment for the Claimant against the Respondent for a sum of Kshs.2500/- and costs at Kshs.1,000/-. 2.The Appellant, dissatisfied with the orders has filed the present Appeal, claiming that the matter was heard in his absence; that the decree as drawn is erroneous as it indicates the principal amount as Kshs.9,130/-, interest Kshs.225/- and costs assessed as Kshs. 8,200/- making a total of Kshs.17,555/-. 3.The matter was heard by way of written submissions and both parties filed their submissions. Trial Court Evidence 4.The matter proceeded in absence of the Appellant. The claimant testified in court and told court that she had advanced money to the Appellant herein. It was Kshs.500/- and a further Kshs.2,000/- and that the agreed rate of interest was Kshs.50/- and Kshs.200/- daily for the respective amount. 5.That the Appellant herein defaulted in the repayment and that she had computed the amounts owing and the total was Kshs.9,130/-. The Claimant thus sought the court to enter judgment for the said amount against the Appellant. 6.As stated earlier, the Appellant did not appear in court at the hearing and the trial court proceeded to issue a judgment on the same date the matter was heard. However, the Appellant had filed a response to the claim in which he alleged that the Kshs.2,500/- that is being sought as a loan to him, was actually money refunded to the Claimant. Analysis and Determination 7.It is trite law that appeals from the Small Claims Court are governed by Section 38 (1) of the Small Claims Court Act, 2016, and are only on matters of law. I have considered the submissions of each of the parties and from the Memorandum of Appeal and the said submissions, the Appeal herein relates to three (3) issues: -i.Whether the Appellant was heard, or served at the hearing.ii.Whether there was a contract, loan agreement between the Claimant and Respondent.iii.Whether the Kshs.2,500/- sent by the Respondent to Claimant was a loan or refund of money borrowed. 8.All the above issues listed above are a matter of evidence. The question as to whether the Appellant was informed of the hearing date was a matter of the return of service. The Adjudicator did indicate on the proceedings that the Appellant herein had filed documents in response to the claim but had failed to appear in court, and the court proceeded with giving directions on the matter. 9.On whether this was a loan that remained unpaid or it was funds from a shylock, or it was refund of monies owed between the two parties, again, this is a matter of evidence. Similarly, the issue of whether there was a contract between the parties is a matter of evidence. 10.So that the issues being raised by the Appellant are not matters that can competently be raised before this court on a case that originated from the Small Claims Court, as provided for under Section 38(1) of the SCC Act. And even for that reason alone the appeal herein must fail. 11.I have however looked at the decree and certificate of costs issued by the trial court. Judgment was entered for Kshs.2,500/- and costs were assessed by the Adjudicator at Kshs.1,000/- and interest was awarded from the date of filing the claim. I realize that the decree dated 28/5/2025 that gave rise to the warrants of attachment dated 16/07/2025 is erroneous in that it indicates the decretal amount as Kshs.9,355/- which is contrary to the orders of the court granted on the 30/4/2025. 12.I will therefore direct that the decree of the court issued on 28th May 2025, and the warrants of attachment dated 16th July 2025 be returned to the court for correction, and an amended decree and warrant of attachment be issued according to the orders of the Adjudicator dated 30/04/2026. 13.In conclusion, the orders of the court are that the Appeal herein is dismissed with no orders as to costs. 14.A further order is issued for the correction decree and warrants of attachment issued by the Small Claims on the 28/05/2025 and 16/07/2025 respectively to reflect the correct position according to the orders of the Adjudicator made on 30/04/2025. DELIVERED DATED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 17TH DAY OF JULY, 2026.…………………………..………………L. M. WACHIRAJUDGEIn the presence of:Leadys – Court AssistantJacob Agengo…. Appellant in person.Respondent - Absent