https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7256

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPEAL NO. E380 OF 2024** **JOHN MUTUA KINGO….………….…………………..…….APPELLANT** **VERSUS** **SEBASTIAN WAMBUA MULWA………………..…..…….RESPONDENT** *(Being an Appeal from the Judgment of the learned Resident Magistrate/Adjudicator - Hon G. Simatwo delivered on 8th March, 2024 in Milimani SCCOMM No. E1488 of 2023)* **JUDGMENT** 1. The Respondent in this Appeal was the Claimant in Nairobi SCCC Case No. E1488 of 2023 were he sued the Appellant jointly with Ngao Credit. 2. The Respondent’s claim was that he entered into an oral agreement to sell the motor vehicle to JOHN MUTUA (the Appellant). 3. The Appellant in his response said he had been given the motor vehicle by the Respondent to use and when it was involved in an accident Respondent refused to take it back. 4. The trial Court found that the parties had entered into an agreement for sale of the motor vehicle and ordered the Appellant to pay the Respondent Ksh. 670,000/= together with costs of the suit and interest. 5. The Appellant has appealed against the said judgment on the following grounds: - 6. ***That the Honourable Court erred in fact and law when he denied the Appellant the natural right to be represented by Advocate in this matter.*** 7. ***That the Honourable Court erred in fact and law in acting partially and unfairly against the Appellant when he ignored in totality the evidence of the Appellant.*** 8. ***That the Honourable Court erred in fact and law in finding that there was an agreement for the sale of motor vehicle where there was none signed between the parties.*** 9. ***That the Honourable Court erred in fact and law in failing to find that the vehicle was in the possession of the Respondent throughout until the Respondent borrowed the Claimant’s vehicle for special use thereby leaving the suit motor vehicle in the possession of the Appellant when an accident occurred involving suit motor vehicle.*** 10. ***That the Honourable Court erred in fact in finding and holding that the Appellant kept possession of the suit motor vehicle.*** 11. ***That the Honourable Court erred in fact and law in holding that the Respondent was unaware of double registration of the motor vehicle in the names of the Appellant and Ngao Credit Ltd.*** 12. ***That the Honourable Court erred in holding that the Respondent was expected to refund the money after using the vehicle for 2 years without any rebate for the period.*** 13. ***That the Honourable Court erred in fact and law in misdirecting himself to monies paid without interrogating the exchange of the money paid with a consideration and/or whether exchange of the consideration ever took place.*** 14. ***That the Honourable Court erred in fact and law in holding that the vehicle had not been with the Respondent possession for two years when the Respondent himself did not deny that fact.*** 15. ***That the Honourable Court erred in awarding the Respondent his claim which was contrary to impartiality and fairness.*** 16. The parties filed written submissions as follows: The appellant submitted that the trial court violated the appellant’s right to representation through his advocate who was unable to be present for valid reasons. 17. His application for adjournment was denied and the matter had to proceed unrepresented. This went against article 50 and 47 of the constitution. 18. In support the appellant cited **Richard Nchampi Leiyagu vs Independent Electoral & Boundaries Commission & 2 others [2013] eKLR** where it was held that “**the right to be heard is a constitutional right and should not be denied lightly”** 19. The appellant further submitted that justice must not be sacrificed for procedural rigidity and in support cited **Patriotic Guards Ltd v James Kipchirchir Sambu [2018] eKLR** where the court held that where a counsel absence is explained denying an adjournment may amount to denial of the right to fair hearing. 20. The mistake of counsel should not be visited upon an innocent litigant where justice can still be served. 21. The appellant submitted that under the law of contract a contract is made up of an offer acceptance and consideration. 22. That nowhere in the alleged correspondence between the parties did anything of the said emerge. 23. The subject motor vehicle was in possession of the respondent for over two years. The respondent knew that the issue of transfer was awaiting discharge of the loan in the car granted by Ngao Ltd and extended more monies to enable the appellant pay off the debt. 24. What sparked acrimony was the accident in which the car was involved which happened because the respondent had borrowed the appellant car and left him with the subject motor vehicle to hold over a weekend to visit his in-laws. 25. The respondent alternatively submitted that the appellant had representation from counsel which was noted on record. 26. The trial court did not deny the appellant his natural right to be represented as enshrined under Article 50 (2) (g) of the constitution of Kenya but the same was forfeited by the conduct of the appellant’s chosen advocate. 27. The court record showed that there was proper service of the hearing date on the appellant’s advocate. That further the matter had been adorned 8 times as the appellant was yet to comply with Order 11. 28. The trial court decline to adjourn the matter for the 9th time rightfully on the basis that the appellant was duly served and that there had been previous adjournments. 29. The respondent submitted that the law does not mandate writing for the sale of a movable chattel; and that courts can look at the surrounding circumstances. 30. Contracts for sale of goods generally do not require writing under section 5 of the Sale of Goods Act. 31. The respondent argued that the agreement can be inferred from the conduct of the parties and the oral evidence presented which established the essential ingredients of a contract. 32. Upon a thorough examination of the record of appeal and the submissions filed by both parties, the following issues fall for determination in this appeal; 33. ***Whether the trial court’s refusal to grant an adjournment, which resulted in the Appellant proceeding without his advocate, constituted a violation of his right to fair hearing under Article 50 of the Constitution of Kenya, 2010.*** 34. ***Whether the trial court erred in fact and law by finding that an oral agreement for the sale of the motor vehicle existed between the Appellant and the Respondent, despite the absence of a written contract*** 35. ***Whether, in light of the principles governing appeals from the Small Claims Court, this appeal raises issues of law or impermissibly invites this court to re-evaluate factual findings.*** 36. Before delving into the substantive grounds of appeal, a critical preliminary issue relates to the nature of the appellate jurisdiction this court exercises over decisions from the Small Claims Court. 37. The Small Claims Court was established as a court with the specific mandate of providing expeditious justice. 38. Section 38(1) of the Small Claims Court Act, No. 2 of 2016, Laws of Kenya is explicit on this point. 39. It provides that a person aggrieved by a decision or order of the Small Claims Court may appeal to the High Court on matters of law only. 40. This statutory provision sharply curtails the jurisdiction of the High Court on appeal from the Small Claims Court. 41. An appeal on a question of law is distinct from an appeal on a question of fact. 42. The High Court, sitting on appeal from the Small Claims Court, cannot re-evaluate the evidence to substitute its own findings of fact for those of the trial Adjudicator, unless it is shown that the Adjudicator took into account irrelevant matters, failed to take into account relevant matters, or that the decision was so perverse that no reasonable tribunal would have arrived at it. 43. Upon considering the ten grounds of appeal filed by the Appellant, it is evident that most of them, specifically grounds (iii) through (x), challenge the trial court's evaluation of the evidence. For instance, grounds (iii) and (iv) contest the finding that an agreement for sale existed and the determination of who had possession of the motor vehicle. 44. These are classic questions of fact that were within the province of the trial court as the primary arbiter of fact. 45. An appellate court will generally not interfere with findings of fact by a trial court unless they are based on no evidence or are otherwise perverse. 46. However, ground (i) raises a pure and fundamental question of law as to whether the denial of an adjournment, leading to the denial of representation by counsel, violated the Appellant's constitutional right to a fair hearing. 47. This court, therefore, has the jurisdiction to interrogate ground (i) as a pure point of law, while the remaining grounds will be examined under the narrow lens of whether the trial court’s factual conclusions were so flawed as to amount to an error in law. 48. Regarding ground (i) on the denial of the right to representation, the record shows that the Appellant’s advocate was absent on the hearing date, and the application for an adjournment was denied. 49. The trial court reasoned that the matter had been adjourned several times before, specifically eight times, and that the Respondent was ready to proceed. 50. The right to be represented by an advocate of one’s choice is enshrined in Article 50(2)(g) of the Constitution of Kenya, 2010, and this right is one of the non-derogable rights under Article 25(c). 51. However, this right is not absolute and must be exercised without abusing the court process or causing undue delay to the other party. 52. The constitutional right to a fair hearing for an accused or a party in a civil dispute should not be lightly denied, but neither should it be used as a tool for delaying justice. 53. In the present case, the Appellant was given a fair opportunity to prepare and present his case through his advocate. The trial court noted that the matter had been adjourned eight times previously, indicating a pattern of delay. 54. The duty of the court to manage its proceedings efficiently, in line with the overarching objective of the Small Claims Court Act to facilitate the just, expeditious, proportionate and affordable resolution of disputes, must be balanced against the right to representation. 55. The Appellant’s advocate was duly served with the hearing date. The Appellant has not placed any evidence before this court to demonstrate that the absence of counsel on that specific day was for a compelling and unavoidable reason that could not have been foreseen. 56. The trial court, in declining the adjournment, prioritized the timely disposal of the suit, which is a legitimate aim of the Small Claims Court. 57. Therefore, while the right to representation is sacrosanct, the trial court did not violate it under the specific circumstances of this case where the adjournment was sought to cure the advocate’s lack of preparation or unavailability without sufficient cause. 58. The learned trial magistrate acted within her judicial discretion in refusing the adjournment to prevent further delay and injustice to the Respondent. 59. Turning to the merits of the finding on the contract, the Appellant contends that there was no signed agreement for the sale of the motor vehicle. 60. The law on the formation of a contract for the sale of goods is clear. Section 5 of the Sale of Goods Act, Cap 31, Laws of Kenya, provides that a contract of sale may be made in writing, by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties. 61. A written document signed by both parties is not a mandatory requirement for a valid contract for the sale of movable property such as a motor vehicle. 62. The essential ingredients of a valid contract, as the Appellant correctly submits, are offer, acceptance, consideration, and the intention to create legal relations. 63. The trial court, in its judgment, found that the parties had an oral agreement. 64. The Appellant took possession of the motor vehicle and retained it for a period of two years. The Respondent’s evidence was that this was a sale, and the Appellant made part payments towards the purchase price. 65. The Appellant’s defence was that the vehicle was merely given to him to use and that the money given was not for purchase but for another purpose. 66. The trial court, as the trier of fact, evaluated this conflicting oral evidence and believed the Respondent’s version of events. 67. The Appellant’s possession of the vehicle for an extended period of two years, coupled with the payments made, is conduct from which the trial court could reasonably infer the existence of a contract of sale, as permitted by Section 5 of the Sale of Goods Act. 68. This court finds no error of law in that finding. The failure to have a written agreement does not vitiate the existence of a valid oral agreement when the evidence on record supports such a conclusion. 69. On the issue of the accident and possession, the trial court found that the Appellant was in possession of the motor vehicle as its buyer. 70. The fact that an accident occurred while the vehicle was in the Appellant’s possession does not, in law, negate the existence of the sale or transfer the risk of damage back to the seller without an express agreement to that effect. 71. Under Section 22 of the Sale of Goods Act, unless otherwise agreed, the goods remain at the seller's risk until the property in them is transferred to the buyer, but when the property is transferred, the goods are at the buyer's risk whether delivery has been made or not. 72. The trial court implicitly accepted that the property in the motor vehicle had passed to the Appellant given his long-term possession and part-payment, and therefore the risk of the accident was his to bear. 73. The trial court cannot be faulted for making a finding on a contested fact that was supported by the evidence on record. 74. Consequently, this Court finds that the trial court did not err in law. 75. The appeal against the judgment of the trial court is hereby dismissed with costs to the Respondent. 76. The trial court’s orders that the Appellant pays the Respondent Ksh. 670,000/= together with costs of the suit and interest are hereby upheld in their entirety. 77. The Appellant shall also bear the costs of this appeal. 78. Orders to issue accordingly. **Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 25th day of May, 2026.** **………….…………….** 1. **N. ONGERI** **JUDGE** **In the presence of:** No appearance for the Appellant Miss Muthanje for the Respondent Ubah – Court Assistant