https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11419

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO E200 OF 2024** **KING’INYA & SONS DISTRIBUTORS CO. LTD……………APPELLANT** **-VERSUS-** **DROPPERS DISTRIBUTORS LTD………………………. RESPONDENT** **(Being an Appeal against the Ruling of the Small Claims Court at Meru by Adjudicator Hon Habrovinah Nyamweya (RM) delivered on 7th October 2024 in SCCCOMM No E440 of 2024)** **JUDGEMENT** 1. This appeal arises from the Ruling of the Small Claims Court at Meru by Hon. Habrovinah Nyamweya (RM) delivered on 7th October 2024 in SCCCOMM No E440 of 2024. The dispute stems from an alleged breach of a commercial agreement between King’inya & Sons Distributors Company Ltd, now the Appellant, a supplier and distributor of wines and alcoholic beverages, and Droppers Distributors Ltd, now the Respondent, a company operating a liquor business under the name Droppers Wines – Embu. 2. According to the Statement of Claim dated 3rd July 2024, the Appellant supplied the Respondent with merchandise valued at KShs. 879,917/= on 22nd June 2023, as evidenced by Invoice No. 0177931Y. In settlement of the purchase price, the Respondent issued Cheque No. 10 for the said sum. Upon presentation for payment, however, the cheque was dishonoured, thereby causing the Appellant to incur bank charges of KShs. 2,400/= in respect of the dishonoured cheque. 3. The Appellant further stated that, following several demands and the intervention of the police in Embu, the Respondent made a partial payment of KShs. 709,917/=, leaving an outstanding balance of KShs. 170,000/=. It was contended that despite repeated demands and attempts to resolve the matter amicably, the Respondent failed to settle the outstanding balance. Consequently, the Appellant maintained that the Respondent was in breach of the parties' agreement and further alleged that the cheque had been issued despite the Respondent being aware that the account lacked sufficient funds. 4. The Appellant particularised its claim as comprising KShs. 170,000/= being the outstanding balance, KShs. 2,400/= being the cost of the bounced cheque, and KShs. 10,000/= being the costs of the demand letter, bringing the total claim to KShs. 182,400/=. The Appellant therefore sought judgment for the said sum together with interest at the rate of 14% per annum from June 2023 until payment in full, general damages for breach of contract, costs of the suit, and interest thereon at court rates. 5. The Respondent opposed the claim through a Statement of Response dated 12th August 2024. While admitting the description of the parties and the jurisdiction of the trial court, it denied liability for the sum claimed and maintained that only KShs. 100,000/= remained outstanding. The Respondent stated that it had been making payments towards the outstanding debt, including a payment of KShs. 70,000/= made on 31st July 2024, and denied liability for the costs claimed in respect of the bounced cheque and the demand letter. It therefore prayed for the dismissal of the claim with costs. 6. During the hearing on 15th August 2024, counsel for the Appellant informed the trial court that although the Respondent had admitted the claim, it was disputing the amount payable. After the Appellant's witness testified and was cross-examined on the disputed items, counsel for the Respondent proposed that judgment on admission be entered for KShs. 80,000/=, which position was accepted by counsel for the Appellant, whereupon the trial court entered judgment on admission for the said sum together with costs. 7. The Appellant filed a Notice of Motion dated 16th August 2024 seeking review of the consent adopted on 15th August 2024. The Appellant contended that the judgment entered for KShs. 80,000/= was based on a mathematical error that arose during the hearing. It asserted that although the Respondent had paid KShs. 100,000/=, comprising KShs. 30,000/= paid on 9th July 2024 and KShs. 70,000/= paid on 31st July 2024, the earlier payment of KShs. 30,000/= had already been considered when the outstanding claim was reduced from KShs. 200,000/= in the demand letter to KShs. 170,000/= in the Statement of Claim. The Appellant therefore maintained that only the subsequent payment of KShs. 70,000/= ought to have been deducted from the amount claimed and that deducting the earlier payment a second time resulted in an erroneous computation. It consequently prayed that the trial court review the consent judgment by substituting the award of KShs. 80,000/= with KShs. 110,000/=, maintaining that the application had been made promptly, in good faith, and without prejudice to the Respondent. 8. The Respondent opposed the Appellant's application through a Replying Affidavit sworn on 16th September 2024 by its advocate. It maintained that the consent adopted by the trial court had been freely negotiated and voluntarily executed by the parties after both counsel had adequate time to consider the documents on record and that, upon its adoption, it acquired the force and effect of a valid judgment of the court. The Respondent contended that the Appellant had improperly invoked the court's review jurisdiction under the guise of correcting an error apparent on the face of the record, whereas the application in reality sought to vary the terms of a consent judgment and procure a fresh decree. 9. The Respondent further argued that the alleged mathematical error did not constitute a proper basis for review and that, if the Appellant wished to challenge the consent, the appropriate remedy was an application to set it aside on recognised grounds applicable to contracts, including fraud, mistake, misrepresentation, or want of material facts. It therefore urged the trial court to dismiss the application with costs, contending that it was an afterthought, an abuse of the court process, and an attempt to frustrate the Respondent. 10. The trial court delivered its ruling on 7th October 2024, dismissing the Appellant's application for review. It held that the additional sum of KShs. 30,000/= sought by the Appellant could not be regarded as an arithmetic error but constituted a substantive alteration of the claim. The court found that the amount had not been pleaded in the Statement of Claim and that the Appellant had neither sought nor obtained leave to amend its pleadings. It further observed that the application could not operate as an amended claim and that the court could not award a sum that had not been specifically pleaded. Having already entered judgment on admission on 15th August 2024, the trial court held that it was functus officio and accordingly dismissed the application. Aggrieved by that decision, the Appellant lodged the present appeal. 11. The Appellant’s case on appeal is anchored on five grounds set out in the Memorandum of Appeal dated 14th October 2024. The Appellant contends that the learned Adjudicator fell into error both in law and fact by misapprehending the nature and substance of the application for review and consequently dismissing it as being bad in law. It is submitted that the trial court erroneously found that the additional sum of KShs. 30,000/= had not been pleaded, failed to appreciate that the application merely sought to rectify a mathematical error in the computation of the outstanding balance, wrongly held that the Appellant was seeking to introduce a fresh claim through the application, and improperly concluded that the court had become functus officio after entering judgment on admission. The Appellant therefore urges this Court to set aside the impugned ruling, declare that the Respondent was indebted to it in the sum of KShs. 110,000/= as at 15th August 2024, award the said sum, and grant the costs of both the appeal and the proceedings before the Small Claims Court. **Appellant’s Submissions** 1. The Appellant contends that the trial court misdirected itself in finding that it was seeking an unpleaded amount of KShs. 30,000/=. It submits that the amount claimed in the Statement of Claim dated 15th July 2024 had already factored in the payment of KShs. 30,000/= made by the Respondent on 9th July 2024, thereby reducing the claim from KShs. 212,400/= demanded in the demand letter to KShs. 182,400/=. The Appellant argues that the trial court therefore erred by misconstruing its application as an attempt to amend the claim or introduce a new amount, yet the issue before the court was the determination of the amount remaining payable after accounting for payments already made. 2. The Appellant further submits that the Respondent had admitted liability to the extent of KShs. 100,000/= through its Statement of Response and witness statement dated 12th August 2024, having acknowledged payments of KShs. 30,000/= and KShs. 70,000/= respectively. It argues that the Respondent’s admission was only partial and that the disputed issues, particularly the costs of the demand letter amounting to KShs. 10,000/= and the charges arising from the dishonoured cheque amounting to KShs. 2,400/=, remained for determination by the trial court. Relying on Section 26(1) of the Small Claims Court Act, the Appellant contends that once a part of the claim was admitted, the trial court ought to have entered judgment on the admitted portion and proceeded to determine the contested issues on their merits. 3. The Appellant further argues that the trial court failed to properly consider the evidence and payment history placed before it, and instead erroneously treated the Respondent’s admission as a final settlement of the entire claim. It maintains that a partial admission could not have the effect of terminating the proceedings or converting the matter into a consent judgment, particularly where other aspects of the claim remained disputed. The Appellant therefore urges this Court to find that the trial court erred in declining to determine the outstanding issues and to set aside the ruling delivered on 7th October 2024, granting the orders sought in the Memorandum of Appeal. **Respondent’s Submissions** 1. The Respondent opposed the appeal through its written submissions, urging this Court to uphold the ruling of the Small Claims Court delivered on 7th October 2024. It submitted that the learned Adjudicator properly exercised discretion in dismissing the Appellant’s application seeking review of the consent judgment entered on 15th August 2024. According to the Respondent, the issue for determination was whether there existed any legal basis upon which the trial court could interfere with, vary, or set aside a consent judgment that had been entered into by the parties and adopted by the court. 2. The Respondent argued that a consent judgment, once adopted by the court, has the same legal effect as any other judgment and may only be set aside on grounds that would justify the setting aside of a contractual agreement, such as fraud, mistake, misrepresentation, or want of authority. The Respondent placed reliance on the Court of Appeal decision in ***James Kanylita Nderitu & another v Marlos Philotas Ghikas & another [2016]*** and maintained that the Appellant had not established any of the recognised grounds for interfering with a consent judgment. It contended that the alleged arithmetic error relied upon by the Appellant did not amount to a sufficient basis for review but was instead an attempt to alter a settlement that had already been freely agreed upon by the parties. 3. The Respondent further submitted that the consent judgment was entered after the Appellant’s counsel confirmed before the trial court that the Respondent had made payments amounting to KShs. 100,000/=. It argued that the consent had been prepared, shared, executed, and filed by the parties, and that the Appellant could not subsequently challenge the agreed terms on account of an alleged miscalculation. The Respondent further contended that the Appellant’s attempt to seek recovery of KShs. 110,000/= amounted to a departure from its pleadings, which had specifically set out the outstanding amount claimed. It therefore urged this Court to find that the appeal lacked merit, dismiss it in its entirety, and uphold the ruling of the Small Claims Court with costs. **Issues for Determination** 1. I have carefully considered the Memorandum of Appeal, the Record of Appeal, the submissions by the parties, the applicable law, and the authorities relied upon. The following issue arises for determination: 2. Whether the learned Adjudicator erred in dismissing the Appellant's application for review on the ground that the additional sum of KShs. 30,000/= constituted an unpleaded claim rather than a mathematical error in the computation of the outstanding amount. **Analysis and Determination** 1. The duty of this Court in this appeal is thus to reconsider the evidence, evaluate it itself and draw its own conclusions. In ***Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123,*** this principle was enunciated thus: “...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 1. The jurisdiction of the Small Claims Court to review its own orders is conferred by Section 41 of the Small Claims Court Act. Under that provision, an Adjudicator may, either on the application of an aggrieved party or on his or her own motion, review an order where it was made ex parte without notice to the applicant; where the claim or order was outside the jurisdiction of the Court; where the order was obtained fraudulently; where there was an error of law on the face of the record; or where new facts, previously not before the Court, have been discovered by either of the parties. 2. The procedure governing the exercise of that jurisdiction is set out under Rule 29 of the Small Claims Court Rules, 2019. The Rule empowers the Court to review any decree or order where it is shown that the decree or order contains an error apparent on the face of the record or a clerical or arithmetical mistake. It further provides that such a request may be made either orally in court or in writing and preserves the Court's power to correct, on its own motion, any clerical or arithmetical mistake within thirty days of passing the decree or making the order. 3. The principles governing the exercise of the power of review are now well settled. In **Nyamogo & Nyamogo v Kogo *(2001) EA 170***, the Court held that an error apparent on the face of the record must be obvious and self-evident. An alleged error that can only be established through a long-drawn process of reasoning, or upon which two opinions may reasonably exist, does not constitute an error apparent on the face of the record and is therefore a proper ground for appeal rather than review. 4. Similarly, in **National Bank of Kenya Ltd v Ndungu Njau, Civil Appeal No. 211 of 1996,** the Court of Appeal held that the jurisdiction of review exists only to correct an apparent error or omission on the face of the record and cannot be invoked merely because the court may have reached an erroneous conclusion on the law or the facts. 5. I have carefully considered the pleadings, the proceedings before the trial court, the demand letter dated 25th June 2024, the Statement of Claim, the Statement of Response, the payment receipts and the submissions by the parties. The Appellant's complaint before the trial court was that the payment of KShs.30,000/= made on 9th July 2024 had already been considered before the Statement of Claim was filed, thereby reducing the outstanding balance from KShs.200,000/= to KShs.170,000/=. 6. According to the Appellant, only the subsequent payment of KShs.70,000/= made on 30th July 2024 ought to have been deducted from the amount pleaded in the Statement of Claim. It was therefore contended that the earlier payment of KShs.30,000/= was inadvertently deducted a second time when judgment on admission was entered, resulting in an erroneous computation of the amount due. 7. The record shows that the demand letter sought KShs.212,400/=, while the Statement of Claim subsequently sought KShs.182,400/=, comprising KShs.170,000/= as the outstanding balance together with KShs.2,400/= being bank charges for the dishonoured cheque and KShs.10,000/= being the costs of the demand letter. 8. It is equally not disputed that the Respondent paid KShs.30,000/= on 9th July 2024 before the institution of the suit and made a further payment of KShs.70,000/= during the pendency of the proceedings. 9. The learned Adjudicator dismissed the application on the basis that the Appellant was seeking to introduce an additional sum of KShs.30,000/= which had not been pleaded and that such a claim could only be introduced through an amendment of the Statement of Claim. 10. With respect, the record does not support that conclusion. The Appellant did not seek to introduce a fresh cause of action or enlarge the reliefs sought in the Statement of Claim. Rather, the complaint was that the amount pleaded had already considered the payment of KShs.30,000/= made before the institution of the suit and that the same payment had inadvertently been deducted a second time when judgment on admission was entered. 11. In **Kojwang v Kaunda *(Civil Appeal E238 of 2023) [2024] KEHC 11116 (KLR)***, the High Court held that an error apparent on the face of the record may arise where the trial court considered material forming part of the record but inadvertently failed to apply it in arriving at its final computation. The Court observed that where the inconsistency is discernible from the record itself and does not require fresh evidence or elaborate argument, such an error properly falls within the scope of review. 12. Applying that reasoning to the present appeal, if the payment of KShs.30,000/= had already been factored into the computation of the amount pleaded before the suit was instituted, the question whether that payment was deducted a second time was one capable of determination from the material already on record. It did not require an amendment of the pleadings or the introduction of a fresh claim. 13. I therefore find that the learned Adjudicator misapprehended the nature of the Appellant's application by treating it as an attempt to introduce an unpleaded claim instead of determining whether there existed an apparent computational error on the face of the record. 14. The Respondent argued that the judgment entered on 15th August 2024 was a consent judgment which could only be set aside on grounds applicable to contracts. Indeed, as held in **Flora Wasike v Destimo Wamboko [1982–88] 1 KAR 266 and Samson Munikah t/a Munikah & Company Advocates v Wedube Estates Limited [2007] eKLR**, a consent judgment may only be interfered with on grounds such as fraud, mistake, misrepresentation or any other ground that would justify the setting aside of a contract. 15. However, the application before the trial court was not one seeking to rescind or vary the consent on contractual grounds. Rather, it invited the Court to determine whether the amount embodied in the judgment contained an apparent computational error discernible from the material already on record. That question fell squarely within the review jurisdiction conferred upon the Small Claims Court under Section 41 of the Small Claims Court Act and Rule 29 of the Small Claims Court Rules, 2019. 16. The learned Adjudicator further held that the Court had become functus officio upon entering judgment on admission. The doctrine of functus officio, as explained by the Supreme Court in **Raila Odinga & 2 Others v IEBC & 3 Others [2013] eKLR** and by the Court of Appeal in **Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR**, is intended to uphold the principle of finality in litigation. 17. However, that doctrine does not extinguish the statutory jurisdiction expressly conferred upon the Small Claims Court by Section 41 of the Small Claims Court Act and Rule 29 of the Small Claims Court Rules, 2019 to review its own orders where the prescribed grounds have been established. Where an applicant demonstrates the existence of an error apparent on the face of the record or a clerical or arithmetical mistake, the Court is not rendered functus officio merely because judgment has been entered. 18. Having independently reconsidered the entire record of appeal, I find that the learned Adjudicator misapprehended both the nature of the Appellant's application and the scope of the Court's review jurisdiction under Section 41 of the Small Claims Court Act and Rule 29 of the Small Claims Court Rules, 2019. The application did not seek to introduce a fresh or unpleaded claim, nor did it seek to vary the consent on grounds applicable to contracts. Rather, it invited the Court to determine whether the amount reflected in the judgment had arisen from an apparent computational error discernible from the material already on record. 19. In my view, that issue was one properly falling within the Court's statutory review jurisdiction. The learned Adjudicator therefore erred in treating the application as one requiring an amendment of the pleadings and further erred in declining jurisdiction on the basis that the Court had become functus officio. The existence of a judgment does not deprive the Small Claims Court of its express statutory power to correct an error apparent on the face of the record or a clerical or arithmetical mistake where the requirements for review have been satisfied. 20. In light of the foregoing, I find that the learned Adjudicator erred in law by declining to exercise the review jurisdiction conferred under Section 41 of the Small Claims Court Act and Rule 29 of the Small Claims Court Rules, 2019. The appeal therefore succeeds, and the ruling of the Small Claims Court delivered on 7th October 2024 is hereby set aside. **Disposition** 40. Accordingly, I make the following orders: A. The appeal is hereby allowed. B. The ruling of the Small Claims Court at Meru delivered on 7th October 2024 in SCCCOMM No. E440 of 2024 is hereby set aside. C. The Appellant’s application for review dated 16th August 2024 is hereby allowed. D. The judgment entered on 15th August 2024 is reviewed by substituting the sum of KShs. 80,000/= with KShs. 110,000/=. E. The Appellant shall have the costs of the application before the Small Claims Court and the costs of this appeal. It is so ordered. Right of appeal 28 days. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JULY 2026. **………………………** **R.A. OGANYO** **JUDGE.** **In the Presence of; -** Court Assistant…E, Sana Mr. Omondi h/b for Mr. Ikua for the Respondent Mr. Maheli for the Appellant.