https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11516

 # REPUBLIC OF KENYA **IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL DIVISION APPELATE SIDE** **CIVIL APPEAL E994/23** **LEONARD EVANS ITHIRIA APPELANT** ***VERSUS*** # ELLEN WANJIKU GAKURUI RESPODENT (*Being an Appeal from an order of dismissal in Milimani Small Claims Court issued by Hon. D.S Aswani in E3913/23 on 1st September 2023)* # JUDGEMENT **INTRODUCTION** 1. This appeal arises out of the summary dismissal of Milimani Small Claims Court SCCC No. E3913 of 2023. By an order dated 1st September 2023, the learned Adjudicator, Hon. D.S. Aswani, struck out the Appellant’s Statement of Claim for "want of service" and formally closed the file. 2. Aggrieved by that summary dismissal, the Appellant approached this Court via a Memorandum of Appeal dated 14th September 2023, seeking to have the order set aside and the claim reinstated for inter-partes hearing on the merits. # BACKGROUND AND PROCEEDINGS 1. The record reveals that the Appellant (then ‘the Claimant’) moved the lower court by filing a Statement of Claim dated 14th August 2023 against the Respondent. 2. The matter came up for its first mention before the trial court on 1st September 2023. 3. On the said date, 1st September 2023, Mr. Reven, holding brief for the Appellant's lead counsel, Ms. Wahome, appeared. There was no appearance for the Respondent. 4. Counsel for the Claimant informed the court that the Process Server was yet to effect service and consequently prayed for a window of 14 days to perfect the same. 5. Instead of granting the request, the trial court summarily pronounced that the claim was struck out for want of service and closed the file. It is this abrupt termination of the proceedings that has triggered this appeal. # THE APPELLANT’S CASE AND SUBMISSIONS 1. The Appellant filed written submissions dated 9th June 2025, through the firm of L.W. Wang’ombe & Company Advocates. The submissions support the Appeal challenging the aforesaid summary dismissal of Milimani Small Claims Court SCCC No. E3913 of 2023 (*Leonard Evans Ithiria v Ellen Wanjiku Gakurui*). 2. The Appellant’s case is premised on the background that the underlying claim sought damages arising from a non-injury traffic accident involving his motor vehicle and that of the Respondent. When the matter came up for its very first mention on 1st September 2023 to confirm service, Appellant's counsel on record apprised the court that service was yet to be perfected and sought a brief window to serve. The trial court, however, summarily struck out the Statement of Claim for want of service. 1. In prosecuting the Appeal, counsel for the Appellant submitted that the trial Magistrate erred in law and fact by dismissing the claim on a first mention when the matter was still well within the statutory 60-day period allowed to prosecute and achieve service. Counsel drew this Court's attention to **Rule 7(2) of the Small Claims Court Rules**, emphasizing that a suit is only deemed abandoned and ripe for dismissal where a Claimant fails to serve a Statement of Claim within **six (6) months** from the date of filing. 2. Counsel further submitted that the underlying claim comprises a material damage claim. The counsel explained that Because the Limitation of Actions Act does not permit an extension of time or leave to file a material damage suit out of time, the trial court's summary dismissal acted as a permanent bar that completely locked the Appellant out of the seat of justice. 3. It is argued that while the Small Claims Court prioritizes the expeditious disposal of claims, an over-insistence on speed must not be weaponized to lock out litigants within statutory timelines and that a denial of the appeal would amount to a severe failure of substantive justice. 4. The Appellant listed four principal grounds. In verbatim, the grounds are: 1. The learned Adjudicator erred in law and fact when she dismissed the claimant's suit on the first mention on the ground that the Statement of Claim had not been served upon the respondent, yet the statutory 60 days had not yet lapsed. 2. The learned Adjudicator erred in law and, in fact, by failing to take into account that the Law of Limitation of Actions Act does not allow extension of time for material damage claim and that one cannot seek leave to file the suit of time. 3. The learned Adjudicator erred in law and fact when she dismissed the claimant's suit in complete disregard of the claimant's advocates' efforts towards effecting service of the Statement of Claim. 4. The learned Adjudicator erred in law by disregarding the principles of natural justice. These grounds can be synthesized into two points: 1. Statutory Misdirection: The trial court erred in law and fact by dismissing the claim on the very first mention before the statutory 60-day period reserved for valid service had lapsed. 2. Breach of Natural Justice: The trial court completely disregarded the clear efforts of the Claimant’s advocates to effect service, failing to act judiciously and thereby condemning the Claimant without a hearing. 3. Consequent to the grounds above, the Appellant presents the following prayers before this Court: 1. Appeal be allowed with costs; 2. The dismissal order issued by Hon. Aswani be set aside; 3. the Court do issue an order of review of the dismissal order; 4. the Court do reinstate the matter for trial and dismissal on merit; 5. the Court be pleased to make any other orders or grant any other relief it deems fit, just and expedient to grant in the circumstances of this case # ISSUES FOR DETERMINATION 1. Having considered the grounds of appeal and the submissions filed, this court distils the following issues for determination: 1. Whether the learned Adjudicator erred in law by striking out the suit for want of service before the statutory timelines for service had lapsed. 2. Whether the summary dismissal violated the Appellant's right to a fair hearing and the principles of natural justice. # DETERMINATION 1. **On the Statutory Timelines** 2. The Small Claims Court is established to ensure the swift, informal, and inexpensive resolution of commercial and civil disputes. However, this statutory drive for efficiency cannot override the clear, explicit guardrails set out in the governing law. 3. Under Rule 7 of the Small Claims Court Rules, a statement of claim filed in a Small Claims Court shall be served within six (6) months. Only after the effluxion of this time can the trial court proceed to dismiss the matter as abandoned. A party may also apply to the same Court to have the matter reinstated after dismissal. 4. A perusal of the Memorandum of Appeal and certified proceedings demonstrates that on 1st September 2023, the matter was coming up for its very first mention. The matter had been filed on 15th August 2023, and it was first placed before the Honourable Adjudicator on said 1st September 2023. Notably, latter day was the very first date the matter came up for a mention before the Learned Adjudicator. 5. The statutory period for the determination of the matter, or even the service of the statement of claim to the Respondent by the Claimant had not yet expired. The Small Claims Court Rules ascertain that a dismissal shall only be considered on the basis of lack of service after six (6) months. By implication, striking out the suit on the basis of lack of service when barely a month had expired between the filing and the dismissal, is not only contrary to the constitutive law in procedure as set out in the Small Claims Court Act and its Rules, but is also violative of the rules of natural justice. Accordingly, by striking out the suit prematurely, the learned Adjudicator committed a severe error of law, stripping the Appellant of a statutory timeline explicitly promised by the rules. # On Judicial Discretion and Natural Justice 1. While the Small Claims Court is meant to handle matters expeditiously, it must do so within the bounds of the law, fairness and natural justice. **Article 50(1)** of the Constitution of Kenya guarantees every person the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing. 2. As noted, before in this judgement, Counsel for the Appellant (then the Claimant) advised the Court that service upon the Respondent was outstanding and sought a 14-day extension to effect service. The Court denied the request and dismissed the matter. 3. Dismissal of a suit is a draconian measure of last resort even when procedure is violated. On the question of procedural non-compliance, this Court is guided by the enduring principle re-emphasized by the Court of Appeal in ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & Others* [2013] eKLR**. The Court of Appeal observed that procedural lapses and deviations from form which do not touch on the jurisdiction of the court; or, go to the root of the dispute; or occasion prejudice to the opposing party, should not be fatal to a suit. 4. As a result, where an infraction causes no injustice, and does not prejudice the other party, such a transgression should not have an invalidating effect, nor should justice be sacrificed on the altar of strict procedural adherence. 5. However, while it is important to address the issue of procedure and timelines in the Small Claims Court, it is nevertheless, important to note, as discussed elsewhere in this judgement, that it was the Court that acted contrary to the procedure and the law, and not the Claimant or his Advocate. 1. The Small Claims Court manages its own flexible, simplified procedures rather than being bound by strict legal technicalities per Section 17 of the Small Claims Court Act. The Act’s main priority is ensuring fairness and natural justice for all parties involved, ensuring disputes are resolved efficiently without getting hindered by complicated courtroom formalities. Rule 31 of the Small Claims Court Act Rules states that while the Small Claims Court shall have control over its procedure, it shall exercise that discretion the statute hands to it while following the principles of natural justice. Rule 31 of the said Rules further clarifies that the Court is not bound by strict rules of procedure or evidence. The relaxation of rules of procedure is meant to facilitate straightforward, cost effective and speedy justice for those who approach the Small Claims Court. The learned Adjudicator failed to take these aspects into account when dismissing the suit and further failed to exercise fairness and natural justice. 2. In any case, and flowing from the paragraph above, the Small Claims Court Rules 2019 further clarify that a claim can only be deemed to be abandoned after six (6) months when there has been no service. Consequently, this Court can safely adduce, from both the primary constitutive legislation governing the Small Claims Court and the Rules thereof, that hearing of matters to their logical and legal conclusion before a determination is made, of course within reasonable timelines, is the basis for the operation of said Trial Court. Therefore, the trial court, while granted general control of its procedure and operation and thus discretion over these two matters, cannot act unreasonably in the exercise of discretion granted by sections 3(3), 17, of the Small Claims Court Act, and Rule 31 of the said Act’s Rules. 3. By summarily striking out the claim at the very first mention, where the 60- day window for service had not lapsed and a reasonable 14-day adjournment was requested, the trial court exercised its judicial discretion capriciously and unreasonably. The action further ignored the potential adverse impacts under the Limitation of Actions Act, which could permanently bar a material damage claim if the file remained closed. 4. The Court of Appeal in the matter of ***Kivanga Estates Ltd v The National Bank of Kenya* (Nairobi Civil Appeal No. 217 of 2015)** in addressing the question of when it is appropriate to strike out a suit notes that “The rules of natural justice require that the court must not drive away any litigant from the seat of justice, without a hearing, however weak his or her case may be.” The Court further notes that striking out of a suit “(is) a drastic measure in litigation,” and “must be resorted to sparingly.” The observation by the Court of Appeal illustrates that in the application of discretion granted by the primary legislation and the Rules, the Small Claims Court must act in a manner that is not capricious or arbitrary. 5. Thus, this Court further finds that in dismissing the suit, the learned Adjudicator failed to use the Adjudicator’s discretion as a judicial officer appropriately, and as a consequence, natural justice and the parties’ right to fair hearing was impacted. # CONCLUSION AND ORDERS This court finds this appeal to be meritorious. The trial court’s dismissal order was premature, procedurally flawed, and completely contrary to the statutory provisions governing service of process in the Small Claims Court. Consequently, the Court makes the following final orders: 1. The Appeal is hereby allowed. 2. The Dismissal Order issued by the learned Adjudicator Hon. D.S. Aswani on September 1st, 2023, in Nairobi SCCC No. E3913 of 2023 is hereby set aside. 3. Nairobi SCCC No. E3913 of 2023 is hereby reinstated to its original position for trial and disposal on its merits before any other Adjudicator of competent jurisdiction other than Hon. D.S. Aswani. 4. The Appellant shall cause the Statement of Claim and Summons to be served upon the Respondent within 14 days from the date of this Judgment. 5. The costs of this appeal shall be in the cause. **DATED, SIGNED** and **DELIVERED** at **NAIROBI on** this **23rd** day of **July 2026.** ………………………………… # E.K. OGOLA JUDGE In the presence of: ………………………………...... for the Appellant. ………………………………….. for the Respondent. Gisielle Muthoni, Court Assistant.