https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12555

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CIVIL APPEAL NO. E052 OF 2025** **KIHARU BOOKSHOP………………………………………….APPELLANT** **-VERSUS-** **LONGHORN PUBLISHERS PLC………………………....RESPONDENT** (***Being an Appeal from the Ruling and Order of Hon. Sylvia Wayodi Adjudicator delivered on 27th February 2025 in Thika SCCCOM No. E1472 of 2023)*** ***REPUBLIC OF KENYA*** ***IN THE SMALL CLAIMS COURT AT THIKA*** ***SCCOM NO. E1472 OF 2023*** ***LONGHORN PUBLISHERS PLC ………………..………………………RESPONDENT*** ***-VERSUS-*** ***KIHARU BOOKSHOP………………………………………..…………………APPLICANT*** ***JUDGMENT*** **Introduction** 1. This is an Appeal from the Ruling of Sylvia A. Wayodi Adjudicator delivered in the primary claim E1472 of 2023 on 27th February, 2025. In that suit an interlocutory Judgment had been entered but later set aside on certain conditions. One of the conditions was that the Appellant deposits Kshs.250,000/- being part of the decretal amount in court within 30 days of the order of the trial court. The Appellant did not abide by this condition. 1. The Appellant then filed an application in the small claims court seeking to be allowed to liquidate the said amount in instalments, for the full amount to have been deposited in 6 months and the court declined to allow the said application. The Appellant went on Appeal of the said Ruling and the Court B.M. Musyoki, Judge dismissed the Application. 2. The Appellant dissatisfied by the said Ruling has filed the instant Appeal which seeks that the Appellant be allowed to liquidate the sum of Kshs.250,000/- in six months and the costs of the Appeal as well as the lower court be borne by the Respondent. 3. The grounds of Appeal are that the trial Magistrate erred in finding that the Appellant is not facing financial hardships, that failing to appreciate that the Appellant had provided sufficient evidence to demonstrate that she needed more time to liquidate the amount in question. 1. I have considered the Appeal herein and the submissions by the parties. And I have identified only one issue, being ***whether the Appellant has met the threshold of an Appeal as contemplated under Section 38 (1) of the Small Claims Court Act***. **Analysis and Determination** 1. 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: - 2. That the Appellant is ready and willing to liquidate part of the decretal Amount in 6 months. 3. That the trial Magistrate erred in finding that the Appellant is not faced with financial hardships, whereas she had provided sufficient evidence to demonstrate that fact to the trial court. 4. And that the trial court erred in failing to find that the Appellant needed more time. 5. All the above issues listed above are a matter of evidence. The question as to whether the Appellant had provided evidence that she is in financial difficulties, or whether she needed an opportunity to liquidate the amount in question in six months are all matters of evidence and fact. 6. The question as to whether the economy is on a downtime and whether the Appellant has been facing health challenges is also a matter of fact. 7. My finding therefore is 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. 8. I have also looked at the issues raised herein. The issues are being filed in the Superior court for the second time, my brother Hon. Justice Musyoki J, having handled the application. My view is that such an order as is being sought by the Appellant, and relating to conditions of setting aside, is an order that cannot be obtained when the Appellant is already in breach. 9. **In conclusion, I find that the Appeal herein does not meet the threshold of Section 38 (1) of the Small Claims Act. The Appeal is dismissed with costs to the Respondent.** **DELIVERED** Dated and signed Electronically at Nairobi on this **31st** day of **July, 2026.** **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the presence of:** Leadys – Court Assistant Mr. T. M Njoroge for the Appellant. N/A for the Respondent.