https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11599

Chavane v Mogo Auto Ltd (Civil Appeal E250 of 2025) [2026] KEHC 11599 (KLR) (Civ) (21 July 2026) (Judgment) Neutral citation: [2026] KEHC 11599 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E250 of 2025 EKO Ogola, J July 21, 2026 Between Julius Tsimbage Chavane Appellant and Mogo Auto Limited Respondent (Being an appeal from the interlocutory Ruling and Orders of the Small Claims Court at Nairobi delivered by Hon. Philomena N. Makokha, Adjudicator, on September 15, 2025, in Milimani SCCC No. E2606 of 2024) Judgment I. Introduction And Background 1.This appeal arises from the decision of the Milimani Small Claims Court, delivered by the Learned Adjudicator, Hon. Philomena N. Makokha, on 15th September 2025. By the interlocutory ruling, the trial court allowed the Respondent’s Notice of Motion application dated 26th June 2025, thereby setting aside its own earlier orders of 18th June 2025. The vacated orders had closed the Respondent's window to file a response to the Statement of Claim and directed that the underlying dispute proceed strictly by way of written submissions under Section 30 of the Small Claims Court Act. Consequent upon setting aside those orders, the trial Adjudicator admitted the Respondent's late pleadings and deemed them properly filed, a turn of events that aggrieved the Appellant and precipitated the present appeal. 2.The genesis of the dispute before the lower Court traces back to a commercial transaction wherein the Appellant instituted a claim regarding an asset financing loan agreement dated 22nd December 2021. The Appellant alleged that despite paying a total of Kshs.829,300/=, which is significantly more than the principal loan amount of Kshs.365,000/= advanced against his motor vehicle (a Honda Stream registration number KCK 926A), the Respondent unlawfully repossessed and sold the chattel. The Appellant further asserted that the Respondent failed to comply with Section 67 of the Movable Property Security Rights Act and the Auctioneers Rules by neglecting to issue the requisite statutory and proclamation notices. II. The Grounds Of Appeal 3.In his Memorandum of Appeal, the Appellant appeals against the Trial Court's decision on the following grounds:i.That the adjudicator erred in law and in fact by setting aside the orders of 18th June, 2025 without sufficient legal basis.ii.That the adjudicator erred in law and fact by entertaining and allowing the Respondent's application dated 26th June, 2025, which sought reliefs already conclusively determined, thereby rendering the issue of filing a Response to the Statement of Claim res judicata contrary to Section 7 of the Civil Procedure Act.iii.That the adjudicator erred in law and fact by failing to uphold the principle of finality of litigation and instead revisiting matters already determined, thereby exposing the Appellant to perpetual prejudice and uncertainty.iv.That the adjudicator erred in law and in fact by granting the Respondent leave to file a Response to the Statement of Claim in the ruling delivered on 15th September, 2025, notwithstanding the orders issued on 18th June, 2025 directing that the claim proceed by way of submissions under Section 30 of the Small Claims Court Act; and despite having reserved the matter for judgement.v.That the adjudicator erred in law and fact by allowing filing of the Response to the Statement of Claim outside the statutory timeline of 15 days as prescribed under section 25 (2) of the Small Claims Court Act.vi.That the adjudicator erred in law and in fact by disregarding the statutory timelines under Section 34(1) of the Small Claims Court Act, which require every matter to be determined within sixty (60) days of filing. The Respondent's attempt to file a Response more than a year later undermines and prejudices the Appellant's right to access justice under Article 48 of the Constitution.vii.That the adjudicator erred in law and in fact by ignoring the objection by the Appellant that allowing the filing of a defence after the matter had already been fixed for Judgement is a violation of the Small Claims Court Act and other applicable laws.viii.That the adjudicator erred in law by failing to appreciate that the Respondent had previously been ordered to file its documents within three (3) days of the Ruling delivered on 19th February, 2025 but failed to comply, thereby granting the Respondent an undeserved leave to file a Response to the Statement of Claim.ix.That the adjudicator erred in law and fact by holding that the Respondent's failure to file a defence is excusable on the basis of "advocate's mistake" without any affidavit or credible explanation from the advocate concerned.x.That the adjudicator erred in law and in fact by allowing the Respondent's application for review contrary to Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules, and Rule 29 of the Small Claims Court (Procedure) Rules, 2022, in that no new or important evidence was discovered, nor was there an error apparent on the face of the record to justify review. Further, the adjudicator neither addressed the Appellant's objection on the ground of review nor did she provide any cogent reasoning for allowing the application for review.xi.That the adjudicator erred in law and fact by selectively addressing the Respondent's arguments while ignoring those of the Appellant, thereby violating the Appellant's right to a fair hearing under Article 50(1) of the Constitution.xii.That the adjudicator erred in law and in fact by delivering a ruling that occasioned a miscarriage of justice by prejudicing the Appellant's right to a fair, just, and expeditious determination of his claim, and further erred by improperly directing that each party bear its own costs despite the Respondent's dilatory conduct.xiii.That the adjudicator erred in law and in fact by admitting and relying on the Respondent's supporting affidavit, which is sworn by counsel on record in the matter on contentious issues not within her personal knowledge, contrary to Section 4(1) of the Oaths and Statutory Declarations Act (Cap 15, Laws of Kenya) and established jurisprudence, thereby rendering the affidavit incompetent and defective. Consequently, the application founded upon such an affidavit ought to have been struck out in limine together with the prayers sought therein.xiv.That the adjudicator erred in law and in fact by failing to uphold the overriding objective of the Small Claims Court Act, which is to ensure speedy, efficient and just resolution of small claims disputes, and instead rewarded dilatory conduct.xv.That the adjudicator erred in law and in fact by failing to penalize the Respondent through an award of costs to the Appellant, notwithstanding that the case had already been closed, and instead improperly directed that each party bears its own costs. Ordinarily in civil procedure where a matter has closed or reserved for judgement courts impose hefty costs upwards of Kshs.500,000/= to penalize the party seeking to make belated filing; and to ensure compliance with procedure. III. The Respondent’s Replying Affidavit 4.In opposition to the appeal, the Respondent filed a Replying Affidavit sworn on 20th January 2026 by David Irungu Kimani, its Legal Officer characterizing it as a frivolous, vexatious after-thought, brought in bad faith. The Respondent challenges the very competency of the appeal, asserting that it improperly raises questions of both law and fact, which violates Section 38 of the Small Claims Court Act that strictly limits appeals to pure matters of law. On the merits of the lower court's decision, the Respondent contends that the Appellant's arguments regarding res judicata and the finality of litigation are completely unfounded. It is argued that Section 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules, and Order 10 Rule 11 explicitly empower judicial officers to review their decisions and set aside orders on terms that are just. 5.Addressing the procedural delays, the Respondent maintains that the trial Adjudicator acted within her powers when extending the time to file a response beyond the standard 15-day window. The affidavit emphasizes that Rule 33 of the Small Claims Court Rules grants the court explicit authority to extend fixed timelines. Furthermore, the Respondent argues that admitting a response more than a year later does not breach Section 34(1) of the Act. The 60-day period for determining claims is an aspirational case management guideline rather than a self-executing jurisdictional guillotine that automatically cuts off a Court's authority upon lapse. To demonstrate this, the deponent points out that the suit was filed in June 2024 and its first interlocutory ruling delivered in February 2025, which was already well past the 60-day mark, proving that the Appellant is selectively misapplying the principle only because he is unhappy with the outcome. 6.Finally, the Respondent dismisses the Appellant's evidentiary and ancillary objections. The deponent states that the Appellant's claim that there was no affidavit explaining the failure to file a defense is factually misleading and frivolous, as an affidavit was indeed filed and explicitly acknowledged by the Appellant in his own Memorandum of Appeal. This supporting affidavit, sworn by Counsel on record, is defended as legally competent because the procedural facts deponed to were within the personal knowledge of the advocate and did not violate Section 4(1) of the Oaths and Statutory Declarations Act. The Respondent concludes by asserting that the order on costs fell squarely within the trial court's absolute judicial discretion under Section 27 of the Civil Procedure Act, and notes that the Appellant’s prayer for the Adjudicator's recusal is spent since Hon. Philomena N. Makokha had already voluntarily recused herself from the case to eliminate any perception of bias. IV. Submissions By The Parties A. The Appellant's Written Submissions 7.On behalf of the Appellant, the firm of Morara Omoke Advocates submitted that the trial Adjudicator acted without jurisdiction and ultra vires by unsettling her own orders of 18th June 2025. Relying on the locus classicus Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd (1989) KLR 1, counsel asserted that jurisdiction is everything and a Court without it must down its tools. It was argued that the statutory guidelines circumscribing review under Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules, and Rule 29 of the Small Claims Court (Procedure) Rules, 2022 are exceptional and strictly limited to instances of new evidence or errors apparent on the face of the record, neither of which were established. 8.Counsel emphasized that the prior determination of 18th June 2025 satisfied all the limbs of res judicata under Section 7 of the Civil Procedure Act, including identity of issue, parties, title, and finality. Citing John Florence Maritime Services Limited & Another v Cabinet Secretary Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR), counsel warned against cosmetic face-lifts of applications to circumvent res judicata. It was further contended that upon closing the case for Submissions and Judgement, the Adjudicator became functus officio as reinforced by the Supreme Court in Gladys Boss Shollei v Judicial Service Commission & Another Application No. 10 (E016) of 2022. 9.Regarding procedural mechanics, the Appellant maintained that the lower Court had no authority to bypass the mandatory timelines under Section 28(1) of the Act and Rule 17(1) of the Rules. Relying on the Court of Appeal decision in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, counsel argued that an extension of time is an equitable remedy reserved only for diligent parties who place proper explanatory material before the Court. Finally, the Appellant urged that the supporting affidavit sworn by Counsel on record was fatally incompetent under Section 4(1) of the Oaths and Statutory Declarations Act and Rule 9 of the Advocates (Practice) Rules, and should have been struck out in line with Musau & 2 Others v Kiamba and Mawando Limited v Thousand Palms Beach Hotel Limited. B. The Respondent's Written Submissions 10.In response, the firm of Munyaga Githaiga Advocates LLP argued that the appeal is incompetent under Section 38 of the Small Claims Court Act, as it invites the Court to re-evaluate factual assessments and case management exercises rather than points of law. Counsel cited Mogonchi v Ombiro [2025] KEHC 4096 (KLR) to emphasize that the High Court's appellate remit is strictly ring-fenced to pure matters of law to safeguard the legislative intent of finality and expedition. 11.On the merits of the review, the Respondent submitted that Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules grant the Court wide discretion to review decisions upon sufficient reason. Relying on Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR, Counsel stated that this discretion is safely preserved to prevent a party from being condemned unheard. The Respondent maintained that an application properly grounded in law for review or setting aside under Section 43 of the Small Claims Court Act cannot be barred by res judicata. 12.Addressing the 60-day limit for determining claims under Section 34(1) of the Act, the Respondent cross-referenced Maghanga v Alias [2025] KEHC 19207 (KLR) to demonstrate that internal statutory timelines are mandatory directives for efficient administration, but do not act as self-executing guillotines to sever a Court's jurisdiction. On the propriety of the supporting affidavit, the Respondent cited Wetangula v British Broadcasting Corporation [2024] KEHC 14784 (KLR), pointing out that Rule 9 of the Advocates (Practice) Rules expressly permits an advocate to swear an affidavit on formal, non-contentious procedural issues within their personal knowledge. Lastly, Counsel defended the order on costs as a legitimate exercise of judicial discretion under Section 27 of the Civil Procedure Act. V. Issues For Determination 13.Having considered the grounds of appeal, the extensive depositions in the Replying Affidavit and submissions, the Court frames the following issues for determination:a.Whether the appeal is competent in light of the statutory limitations under Section 38 of the Small Claims Court Act.b.Whether the trial Adjudicator possessed the statutory jurisdiction to review and set aside her interlocutory directives of 18th June 2025.c.Whether the statutory timelines under the Small Claims Court Act operate as an absolute jurisdictional bar to late filings.d.Whether the lower court erred by acting upon an affidavit sworn by counsel on record to excuse a procedural default. VI. Determination A. Competency of the Appeal Under Section 38 14.The Respondent raised a threshold objection arguing that the appeal is incompetent as it invites this Court to re-evaluate factual findings and discretionary case management directives contrary to Section 38(1) of the Small Claims Court Act, which limits appeals from the Small Claims Court to questions of law only. 15.While this Court agrees that it cannot sit as a regular evaluator of purely factual or minor administrative case-management choices, the boundaries and parameters of judicial discretion are themselves questions of law. Where an Appellant raises serious questions regarding whether a lower court acted without statutory jurisdiction, misapplied the doctrine of res judicata, or admitted legally incompetent evidence, the issues cross the threshold into substantive questions of law. This position is fortified by the High Court decision in Mogonchi v Ombiro [2025] KEHC 4096 (KLR), which reiterates that while the appellate division is strictly ring-fenced to points of law to preserve the legislative intent of finality, it retains the vital mandate to intervene where statutory boundaries are breached. 16.Taking the present case into consideration, the Appellant’s grounds directly impugn the legal authority of the Adjudicator to re-open a closed matter, the statutory interpretation of the 15-day and 60-day limits under Sections 25(2) and 34(1) of the Act, and the threshold admissibility of an advocate’s affidavit under Section 4(1) of the Oaths and Statutory Declarations Act. These are not mere quarrels with factual deductions, but fundamental inquiries into statutory compliance and proper legal procedure. Therefore, this Court finds that the appeal raises valid questions regarding the limits of statutory power under the Small Claims framework, making it competent for determination. B. Jurisdiction and the Power of Review Under Section 43 17.The Appellant has built a principal argument around the claim that the lower court acted as an appellate body over its own decision and violated the principle of finality by reviving a case closed for judgment. This argument would carry weight in standard civil courts governed strictly by the formalistic regimes of the Civil Procedure Act and Rules. However, it completely fails to account for the unique, specialized statutory design of the Small Claims Court framework. 18.Section 43 of the Small Claims Court Act explicitly creates an independent statutory safety valve, stipulating that the court may, on application by any party, set aside any of its orders and make such further orders as it thinks just. The legislature deliberately deployed the broad phrase "any of its orders" to equip the court with the flexible authority necessary to correct procedural imbalances before a final determination on the merits is reached. 19.The record in Milimani SCCC No. E2606 of 2024 indicates that on 18th June 2025, the trial court closed the defense's case and ordered the matter to proceed strictly by way of written submissions under Section 30 of the Act because the Respondent's Counsel was denied an adjournment to file a response. When the Respondent moved the court within a swift and reasonable timeframe via its application dated 26th June 2025, the Learned Adjudicator was legally clothed with explicit statutory power under Section 43 to evaluate whether enforcing that procedural exclusion would lead to an unjust outcome. 20.As established by the Supreme Court of Kenya in Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), procedural rules must strictly serve as pathways to substantive justice rather than acting as insurmountable barriers designed to shut out an arguable defense. Mirroring this constitutional and appellate guiding principle, because no final judgment had been delivered or perfected the matter having been slated for judgment on 26th September 2025, the trial court was not functus officio nor was the application barred by res judicata, since the underlying dispute had not been determined with finality. The lower court was properly exercising its specialized statutory mandate under Section 43 of the Act to protect the integrity of the judicial process, satisfy the constitutional guarantees of a fair hearing under Article 50(1), and ensure that the substantial triable issues raised in the draft response were fully ventilated on their merits. C. The Interpretation of Statutory Timelines 21.The Appellant submitted that the trial court erred by ignoring the mandatory 14-day timeline under Section 28(1) of the Small Claims Court Act erroneously cited by the Appellant as a 15-day timeline under Section 25(2) and the 60-day case determination requirement under Section 34(1) of the Act, thereby allowing the Respondent to submit a response more than a year after the suit was instituted. As correctly pointed out by David Irungu Kimani, the Respondent's legal officer, statutory timelines dictating when courts must perform judicial actions cannot be applied as automated guillotines that strip a Court of its core jurisdiction or compromise a party's constitutional right to access justice under Article 48. 22.This exact principle was authoritatively affirmed in Maghanga v Alias (Civil Appeal E1493 of 2023) [2025] KEHC 19207 (KLR), where the High Court held that the 60-day period in Section 34 is a mandatory directive to the court to manage its business efficiently, but it is not a self-executing guillotine that severs the Court's jurisdiction. The Court recognized that jurisdiction, once properly invoked, is not automatically lost by a failure to adhere to an internal timeline, as a contrary holding would allow administrative challenges to defeat the constitutional right of access to justice. 23The record in Milimani SCCC No. E2606 of 2024 demonstrates that the 60-day marker is an aspirational case-management tool rather than a jurisdictional bar, given that the matter was instituted in June 2024 and the first ruling on the Appellant’s own application was not delivered until February 19, 2025, well past the 60-day window. The Appellant cannot be permitted to selectively misapply this framework only when it is disadvantageous to him. This statutory flexibility is further supported by Rule 33 of the Small Claims Court Rules, which explicitly empowers the Court to extend fixed timelines on terms that are just. The lower court therefore acted within its lawful authority under Rule 33 by setting aside its prior orders of 18th June, 2025, and extending the timeline to admit the Respondent's response, thereby ensuring that the triable issues raised could be resolved substantively on their merits rather than on technical defaults. D. Admissibility and Competency of Counsel’s Affidavit 24.Facing a procedural default resulting from a missed Court appearance or deadline, the reasons for the delay such as a firm diary oversight or a communication lapse within the advocate’s office are administrative and logistical facts uniquely within the personal knowledge of the handling Counsel. By dint of Order 19, Rule 3(1) of the Civil Procedure Rules, affidavits must be confined to such facts as the deponent is able of their own knowledge to prove. Since these clerical mistakes and office mishaps occur strictly within the advocate’s chambers and entirely outside the presence or control of the client, Counsel is the proper and most competent person to depone to them. 25.An affidavit sworn by Counsel detailing these internal administrative facts satisfies the strict statutory strictures of Section 4(1) of the Oaths and Statutory Declarations Act (Cap. 15), is entirely admissible, and remains the proper evidentiary vehicle to explain the default. The underlying default arose from an internal firm oversight where Counsel failed to comply with directions to file a timely response within the statutory 14-day window under the Small Claims Court framework. The specific reasons surrounding the failure to log or execute that filing outside the statutory window were administrative and clerical matters occurring strictly within the advocate's chambers. These are matters outside the control of the Respondent and are uniquely within the knowledge of its advocates. Consequently, the trial Adjudicator committed no error of law or procedure by evaluating the affidavit sworn by the advocate to determine if the default was excusable. E. Discretion on Costs and Recusal of the Adjudicator 26.Regarding the Appellant's complaints that the lower court erred by ordering each party to bear its own costs, Section 27 of the Civil Procedure Act vests judicial officers with full, discretionary authority over the allocation of costs. As reaffirmed in Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR, statutory frameworks grant courts wide discretion to make such orders as they think fit on sufficient reasons, provided that discretion is exercised judiciously and not capriciously. The Trial Court’s decision to balance the scales by ordering each party to bear its own costs during these interlocutory maneuvers does not reveal any capricious exercise of that discretion. The order was entirely appropriate given that the application sought to remedy an administrative lapse by Counsel to ensure the dispute could be determined substantively on its merits. Furthermore, the Appellant’s prayer to have the main suit proceed before a different adjudicator has been rendered entirely spent and overtaken by events. As explicitly deponed in paragraph 14 of the Respondent's Replying Affidavit, Hon. Philomena N. Makokha had already voluntarily recused herself from the proceedings to eliminate any possible apprehension of bias. Consequently, because the learned Adjudicator has already stepped down from the matter, there is no live controversy left for this Court to determine regarding the lower court's forum. VII. Orders And Disposition 27.In the final analysis, the Small Claims Court framework prioritizes speed, but never at the complete suppression of the fundamental right to a fair hearing where both sides are heard on the merits. The trial Adjudicator had reviewed the draft Response, noted that it raised genuine triable issues regarding the loan overpayments and the lawfulness of the vehicle's repossession, then properly determined that justice would be best served by a full trial rather than a summary default process. This Court finds no reversible error of law or misdirection in the lower court's decision. 28.Consequently, this Court makes the following orders:a.The Appeal dated 19th September 2025 is hereby dismissed.b.The Ruling and Orders of the Small Claims Court delivered on 15th September 2025 are affirmed in their entirety.c.The main suit before the lower court (Milimani SCCC No. E2606 of 2024) shall proceed to a full hearing and determination on its merits.d.In light of the trial Adjudicator's prior recusal, the lower court file shall be placed before the Registrar or Adjudicator-in-Charge of the Milimani Small Claims Court for immediate reallocation to another Adjudicator other than Hon. Philomena N. Makokha.e.Recognizing that the interlocutory delay arose from the Respondent's procedural oversight, each party shall bear their own costs of this appeal.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF JULY 2026…………………………………….E. K. OGOLAJUDGEIn the Presence of:Mr. Morara Omoke..………..for the AppellantMs. Kiprop………………for the RespondentGisiele..…………...………… Court Assistant