[2023] KEHC 25358 (KLR)

La Salle Catholic Primary School v Eagle Group International Limited (Civil Appeal E793 of 2021) [2023] KEHC 25358 (KLR) (Civ) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25358 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E793 of 2021

DAS Majanja, J

November 17, 2023

Between

La Salle Catholic Primary School

Appellant

and

Eagle Group International Limited

Respondent

(Being an appeal from the Ruling and Order of Hon. K.O. Gweno, RM/Adjudicator dated 20th September 2021 at the Small Claims Court at Nairobi SCC No. No.40 of 2021)

Judgment

1. The parties are currently embroiled in proceedings before the Small Claims Court where the Respondent claims to have supplied 345 laptops worth Kshs. 7,762,000. 00 to the Appellant for which it paid leaving a balance of Kshs. 762,500. 00 which the Respondent seeks. On 20. 09. 2021, after the close of hearing of the parties’ cases, the Respondent’s counsel orally sought leave of the court to file additional documents. The Appellant’s counsel opposed the application on the ground that both parties had closed their cases and that the Respondent had time to prepare its case and that the Respondent’s counsel ought to have sought for an adjournment. In response, the Respondent’s counsel averred that he was in fact seeking “leave to file a substantive application” and that the Appellant would not be prejudiced with the application since they had the Respondent’s documents.

2. By a ruling dated 20. 09. 2021 (“the Ruling”), the Adjudicator held that the Appellant had not explained how it would be prejudiced if the court allowed the application for additional evidence to be adduced. He noted that the application made was based on the court’s discretion and that the said discretion had to be exercised judiciously. Further, that article 159(2) of the Constitution enjoined the court dispense substantive justice without undue regard to technicalities and that in this case, the subordinate court had to determine the real issue in controversy. That if the additional evidence would assist the court in arriving at an accurate decision, then it ought to be allowed. The Adjudicator further held that the Appellant would also cross-examine the witness on the said additional documents and in that regard, it made orders re-opening the suit, directing the Appellant to be supplied with the additional documents so that it can defend itself and that the parties were at liberty to call witnesses for purposes of producing the said additional documents and cross-examination.

3. The Appellant is dissatisfied with the Ruling and appeals to this court based on the amended memorandum of appeal dated 13. 07. 2022. The appeal has been canvassed by way written submissions.

4. In its submissions, the Appellant raises the following issues for determination. First, whether the Smalls Claims Court can order re-opening of a matter once both parties have closed their case. If so, under what circumstances. It also asks whether the court should be moved by a formal application and whether both parties must substantially be heard before the court can make a finding.

5. The Small Claims Court Act, 2016 (“the SCCA”) and the Small Claims Court Rules, 2019 (“the Rules”) are silent on whether the Small Claims Court has the power to order for re-opening of a case once both parties have testified and closed their respective cases. The parties agree that the decision on whether or not to allow a party to re-open its case and to adduce additional evidence is a matter of discretion. In this respect the court is guided by the principles set out at section 3 of the SCCA that is; timely disposal of all proceeding using the least expensive method, equal opportunity to access judicial services, fairness of process and simplicity of procedure.

6. Further, under section 17 of the SCCA, the court is empowered to control its own procedure in determination of claims before it and in exercise of that control, the court shall have regard to the rules of natural justice. This provision is echoed by the Rules which at rule 31 provides that in conduct of proceedings the Court shall not be bound by the strict rules of procedure and evidence.

7. The totality of the provisions I have cited means that the High Court in exercising appellate jurisdiction must be alive to the general objective of the Small Claims Court and avoid being too prescriptive in its decisions to the extent of undermining the essence of the Small Claims Court.

8. This appeal concerns the exercise of discretion by the Adjudicator. This court is guided by the principle settled in Mbogo v Shah [1968] EA 93 that an appellate court will not interfere with the decision of the trial court unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been an injustice. Thus, when Adjudicator considers an application to reopen a case and for leave to adduce additional evidence, it must act judiciously by allowing and granting the parties an opportunity to make their case to the fullest extent bearing in mind the principles articulated in the SCCA and underpinned by article 159(2)(d) of the Constitution which commands the court to eschew procedural technicalities.

9. Having read the record, I hold the Adjudicator erred in failing to grant the Respondent an opportunity to make its case. The Respondent requested for an opportunity to make a formal application. While I accept that oral and informal applications are allowed, a formal application allows a party to put its case fully before the court and permits the other party to respond. The Respondent sought the leave of the court to file a substantive application which I believe would have included the information/documents sought to be adduced and would have assisted the court determine their relevance. The court would thus be in a better position to make a judicious decision as to whether to reopen the case and admit the additional evidence. Rendering the Ruling without allowing the substantive application to be filed first also denied the Appellant the opportunity to substantively reply to the said application thereby occasioning it prejudice. In addition, the court did not interrogate why the said additional evidence was not called earlier on at the hearing as such an interrogation was necessary and relevant at that stage to once again inform the trial court’s discretion. Failure to interrogate this and proceeding to make the Ruling was a misapprehension and abuse of the trial court’s discretion.

10. I also do not think that the constrained timeline of the Small Claims Court is an impediment to the Adjudicator permitting a formal application since the court and parties are aware of timelines embedded in the SCCA and the Adjudicator is empowered to give appropriate directions.

11. For the reasons I have given, I allow the appeal. I remand the matter to the Small Claims Court to give direction on the Respondent’s request to file a formal application bearing in mind the considerations I have made and in particular the timelines.

12. Given the nature of the appeal, each party shall bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. D. S. MAJANJAJUDGEMr Situma instructed by KWEW Advocates LLP for the Appellant.Mr Wachira instructed by Wachira Gachoka and Company Advocates for the Respondent.