[2024] KEHC 3550 (KLR)
The court found that the appeal was based on an issue of fact—whether the KES 5,000 for the demand letter was proved by receipt. Section 38 of the Small Claims Court Act restricts appeals to the High Court to matters of law only. The court agreed with the persuasive authority in Palms Resort Limited v Qureshi & 2...
Source-derived case information.
- Citation
- [2024] KEHC 3550 (KLR)
- Parties
- Appellant: Martin Kimathi; Respondent: Zapida Communications Ltd
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E130 of 2023
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal dismissed with costs to the respondent.
- Judges
- TW Cherere
- Legal Topics
- Appeals on Fact, Small Claims Court Jurisdiction, Proof of Special Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Kimathi
Appellant
Zapida Communications Ltd
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the award of KES 5,000 for the demand letter was specifically proved by receipt as required by law.
- 2 Whether the appeal raises a matter of law or fact under Section 38 of the Small Claims Court Act.
Ratio Decidendi
The court found that the appeal was based on an issue of fact—whether the KES 5,000 for the demand letter was proved by receipt. Section 38 of the Small Claims Court Act restricts appeals to the High Court to matters of law only. The court agreed with the persuasive authority in Palms Resort Limited v Qureshi & 2 Others that appeals over evidence are appeals of fact, not law. Since the appellant's challenge was factual and not legal, the appeal was unmerited and was dismissed with costs to the respondent.
Court Disposition
Appeal dismissed with costs to the respondent.
Orders
- The appeal is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
KImathi v Zapida Communications Ltd (Civil Appeal E130 of 2023) [2024] KEHC 3550 (KLR) (21 March 2024) (Judgment)
Neutral citation: [2024] KEHC 3550 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Appeal E130 of 2023
TW Cherere, J
March 21, 2024
Between
Martin kimathi
Plaintiff
and
Zapida Communications Ltd
Respondent
(Appeal against judgment and decree in Meru SCC NO. E052 of 2023 by Hon. L.W.Maina (RM) on 11th July, 2023)
Judgment
1. By judgment dated 11th July, 2023 rendered in Meru SCC NO. E052 of 2023, Respondent was awarded the sum of KES. 168,230/- which is inclusive of KES. 5,000/- for the demand letter.
2. Appellant has appealed on the ground that the sum of KES. 5,000/- was not supported by a receipt and was therefore not specifically proved.
3. Respondent concedes that no receipt for the sum of KES. 5,000/- was tendered and relies on the demand notice dated 22nd November, 2022 wherein Respondent’s advocate demanded the sum of KES. 5,000/- for writing the said demand letter.
4. I have considered the appeal in the light of the evidence on record and the submissions filed on behalf of both parties.
5. Section 38 of The Small Claims Court Act Chapter 10A provides(1)A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
6. I entirely agree with the persuasive decision of Magare J in Palms Resort Limited V Qureshi & 2 Others (Civil Appeal E167 of 2022) [2023] KEHC 23644 (KLR) that an appeal over evidence is an appeal of fact.
7. From the foregoing analysis, I find that this appeal which is on an issue of fact is unmerited and it is dismissed with costs to the Respondent.
DATED AT MERU THIS 21ST DAY OF MARCH 2024WAMAE.T. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MunrneFor Appellant -Mr. Mutegi for Mutegi Mugambi & Co. AdvocatesFor Respondent - Mr. Muriuki for Mbogo & Muriuki Advocates