https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6608

Mash Engineering Ltd v Simbanet Com Ltd & another (Civil Appeal E1014 of 2023) [2026] KEHC 6608 (KLR) (Civ) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 6608 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1014 of 2023 FR Olel, J May 14, 2026 Between Mash Engineering Ltd Appellant and Simbanet Com Ltd 1st Respondent Department Of Defence 2nd Respondent (BEING AN APPEAL FROM THE JUDGMENT/ DECREE OF HON J.W. MUNENE, RESIDENT MAGISTRATE/ADJUDICATOR DELIVERED ON 5th MAY 2023 IN NAIROBI MILIMANI SCCC NO E7423 OF 2022) Judgment A. Introduction 1.This Appeal challenges the Judgment/decree of Hon J.W Munene, Resident Magistrate/Adjudictor dated 5th May 2023, delivered in Milimani Small claims court in SCCC No 7423 of 2022, where she awarded the respondent general damages of Kshs.360,934/= on account of unpaid dues for internet services rendered plus interest at court rates until payment in full. The respondent was also awarded costs of the said suit. 2.The background hereto was that the respondent filed his statement of claim dated 27th October 2022 against the appellant wherein they averred that sometime in April 2017 both parties executed a service agreement for provision internet services ( Fiber installation and monthly 20mbps fiber internet services), for which they would invoice the appellant monthly. In breach of the said agreement the appellant made part payment of the invoiced amount and despite demand he had failed to pay the remaining balance of Kshs.360,934.00/=, which they claimed plus interest thereon at 2% per month until payment in full. 3.In response, the Appellant did file his statement of defence dated 20th December 2022 where he denied all the averments made by the respondent and in the alternative admitted that he only used the respondent’s services between April to October 2017. The service thereafter was continued by a third party (Navy training school- Mtongwe), who were then liable to settle the same. The appellant subsequently did apply to join the Attorney General, who came in as 3rd party in the proceedings before the trial court. 4.Direction were taken, and it was agreed upon that the issue of liability between the claimant, the respondent and third party be jointly determined during the hearing and the parties also opted to proceed under section 30 of the small claims court Act. The documents filed by all the parties were deemed as duly produced as Exhibits and parties were granted leave to file submissions. 5.The learned trial magistrate did consider the evidence adduced and the parties’ submissions and held that the appellant did not supply any written evidence or documentary evidence to show that his account was closed and thereafter transferred to the third party and therefore he was liable to pay the sum claimed. Judgment was therefore entered in favour of the respondent in the sum of Kshs.360,934/= plus interest at court rates from 21st August 2018 until payment in full. B. The Appeal 6.The Appellant, being dissatisfied with the said Judgment, raised nine (9) grounds of appeal, namely: -a.That the learned Adjudicator misdirected herself on several matters of law.b.That the learned Adjudicator failed to address the doctrine of estoppel and whether the respondent was estopped from claiming the payment from the appellant having received payment from the 2nd respondent for 8 monthsc.That the learned trial magistrate/Adjudicator erred in law and fact in failing to hold that the 1st respondent was estopped by its conduct from denying existence of a collateral contract to the one in question where it was a party to with the 2nd respondent.d.That the learned Magistrate/Adjudicator erred in law and fact in failing to hold that the respondent has not proved his case on a balance of probability as against the Appellant.e.That the learned trial Magistrate/Adjudicator erred in law by failing to apricate that the jurisdiction of the trial court was time bound that ran out and ceased by effluxion of time on the 6th day of August 2022 being the date and day the courts time bound jurisdiction ceased to exist by dint of Section 34 (1) of the small claims Act, No 2 of 2016.f.The learned trial Magistrate/Adjudictor erred in law by failing to take into account legal and fact that the moment the sixty (60) days ended, the jurisdiction of the court also ended.g.That the trail Magistrate/Adjudicator erred in law by failing to take cognizance of the legal fact that the judgment rendered and returned outside time was without jurisdiction therefore a nullity bereft of any force of law.h.That the learned trial Magistrate/Adjudicator erred in law and fact in completely misapprehending the issues in dispute between the parties from which the decision was to flow and/or hinged on.i.That the learned trial Magistrate/Adjudicator erred in law and fact in misapprehending the law of contract and the principles applicable therein. 7.The Appellant thus prayed that the appeal be allowed and the judgment of the trial court be set aside and the respondents claim be dismissed with costs. He also urged the court to award him the costs of this Appeal. C. Analysis And Determination 8.I have considered the entire record of Appeal and pleadings filed, the grounds of appeal raised, the submissions filed by the Appellant, and the cited authorities. This being an appeal from the Small Claims Court, it is important to point out that Section 38 of the Small Claims Court Act provides that appeals from the said court shall be only on issues of law. An appeal limited to matters of law does not permit the appellate court to substitute the tribunal's decision with its own conclusions based on its own analysis and appreciation of the facts. See John Munuve Mati Vr The returning officer, Mwingi North Constituency & 2 others (2018) eKLR & Charles Kipkoech Leting Vs Express (K) Ltd & Another NKU CA Civil Appeal No 40 of 2016 (2018) eKLR 9.The appellant did not provide evidence before the trial court to prove that the 3rd party took over the contract to pay for supply for internet at its premises within Navy training school at Motongwe. There was therefore no basis for the trial court to hold otherwise and thus there is no misdirection or error in that finding. 10.Secondly, on the issue raised that the learned trial magistrate failed to deliver judgment within time. This is an issue that the appellant ought to have raised before the court trial that the proceedings were a nullity on the basis that the 60-day period within which the proceedings had to be finalized had been surpassed. He did not and by his conduct acquiesced to the matter proceeding to full trial. 11.Be that as it may, this court is however of the view that the purpose of timelines set under Section 34 of the Small Claims Court Act was to ensure timely disposal of suits and not to cause injustice to the parties.Hon. Majanja, J. in Crown Beverages Limited v MFI Document Solutions Limited (Civil Appeal E833 of 2021) [2023] KEHC 58 (KLR) (Civ) (17 January 2023) (Judgment) stated as follows: -“Although section 34(2) of the SCCA is couched in mandatory terms, the court must look at the context of the provision in light of the guiding principles which include, inter alia, the timely disposal of all proceedings before the court using the least expensive method. The provision as to delivery of judgment is meant to be directory and not mandatory as it is not the intention of the SCCA to invalid at any proceedings that violate the statutory timelines. To adopt such a position would undermine the statutory objects and cause injustice to the parties as the case would have to be reheard.(10)The issue of breach of timelines for delivery of judgment is not a novel issue and has been dealt with by our courts in reference to order 21 rule 1 oft he Civil Procedure Rules which provides that judgments must be delivered within 60 days upon conclusion of the hearing. In Nyagwoka Ogora alias Kennedy Kemoni Bwogora v Francis Osoro Maiko Civil Appeal No 271 of 2000 (UR) the Court of Appeal observed as follows:The real question is what is the consequence of non-compliance there with? no doubt that rule is an important one in the expeditious dispensation of justice. And it is made to be obeyed. However, if non-compliance with the rule were to have the effect contended for by the appellant, we think the overall result would be more injustice than justice to the parties. A lot of time and resources spent in litigation would come to naught if judgments delivered after the expiry of 42 days were to be voided or declared void ipso facto. The rule cannot and in our view could not have been intended to deprive a trial judge of his jurisdiction to write and pronounce judgment in a case he has heard. In our considered view, while non-compliance with the rule and particularly persistent non-compliance or inordinate delay in compliance should call for censure of the judicial officer concerned from those in-charge of judicial administration, it should not be a ground for vitiating a duly delivered judgment. Being of that persuasion we would reject ground 1 of appeal.11.There may be instances where the delay is inordinate an and such delay prejudicial to the parties. In such cases, the court may set aside the judgment as was held by the Court of Appeal in Manchester Outfitters Services Limited and Another v Standard Chartered Financial Services Limited and Another [2002] eKLR. The appellant does not contend that the failure to deliver the judgment within the stipulated timelines was prejudicial or that the delay was inordinate. I therefore reject the appellant’s contention that the judgment is null and void.” 12.In light of the above, this court finds that failure to comply with the timelines does not invalidate the judgment. This ground therefore falls. C. Disposition 13.I do therefore find and hold that this Appeal has no merit and the same is dismissed with no orders as to costs. 14.Stay of execution 45 days. 15.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT THIS 14TH DAY OF MAY 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Team this 14Th day of May 2026.In the presence of: -……………………N/A……………………………..Appellant………………………N/A…………………………. Respondent………………………JARSO……………………….Court Assistant