[2023] KEHC 26004 (KLR)

Mbochi v Kanja (Civil Appeal E285 of 2023) [2023] KEHC 26004 (KLR) (14 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26004 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E285 of 2023

DKN Magare, J

November 14, 2023

Between

Daniel Mbochi

Appellant

and

Julius Kanja

Respondent

Judgment

1. This is an appeal from the small claims court, hon Gatambia given on 20/9/2023 in SCCCCOMM No 258 of 2023. Under Section 38 of the small claims Court Appeal from that court is on matters of law only. It provides as doth: -“38. Appeals(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.(2)An appeal from any decision or order referred to in subsection (1) shall be final”

2. Although the phrase ‘a matter of law’ has not been defined by the Elections Act, it has been held in Timamy Issa Abdalla v Swaleh Salim Swaleh Imu & 3 others, Malindi Civil Appeal No 39 of 2013 (Court of Appeal), (Okwengu, Makhandia & Sichale, JJA) of 13. 01. 2014 that a decision is erroneous in law if it is one to which no court could reasonably come to, citing Bracegirdle v Oxney (1947) 1 All ER 126. See also Khatib Abdalla Mwashetani v Gedion Mwangangi Wambua & 3 others, Malindi Civil Appeal No 39 of 2013 (Court of Appeal), (Okwengu, M'inoti & Sichale, JJA) of 23. 01. 2014 following AG v David Marakaru (1960) EA 484.

3. In Peter Gichuki King'ara vIEBC& 2 others, Nyeri Civil Appeal No 31 of 2013 (Court of Appeal) (Visram, Koome & Odek, JJA) of 13. 02. 2014,“it was held that it is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanor – is an issue of law.”

The Respondent’s Submissions 4. The first question they raised was the existence of an oral agreement. In this they are guided by Total Kenya v Pasacon General Construction and Electrical Services (2022) eKLR.

5. The also dealt with the contractual relationship with a third party. They say that receipt of money was not denied. All the issues they raised were factual.

6. I have perused the memorandum of appeal. The issues raised are issues of fact. This court has no jurisdiction to raise issues of fact. Some of the issues raised relate to discussion around strict compliance with the Evidence Act. Indeed, for small claims court, even raising issues on the Evidence Act, is futile as the court is not bound by rules of evidence. Section 32 of the Small Claims Court Act provides as doth: -“32. (1)The Court shall not be bound wholly by the Exclusion of strict Rules of evidence. Rules of evidence(2)Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence.(3)Evidence tendered to the Court by or on behalf of a party to any proceedings may not be given on oath but that Court may, at any stage of the proceedings, require that such evidence or any part thereof be given on oath whether orally or in writing.(4)The Court may, on its own initiative, seek and receive such other evidence and make such other investigations and inquiries as it may require.(5)All evidence and information received and ascertained by the Court under subsection (3) shall be disclosed to every party.(6)For the purposes of subsection (2), an Adjudicator is empowered to administer an oath.(7)An Adjudicator may require any written evidence given in the proceedings before the Court to be verified by statutory declaration.

7. The effect of the foregoing is that unless there is gross breach of rules of natural justice, an appeal over evidence is an appeal on fact. The matter raises only points of fact. There is no point of law raised by the Appellant. Consequently, the Appeal is dismissed with costs of Kshs 55,000/= to the Respondent.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY of NOVEMBER, 2023. KIZITO MAGAREJUDGEIn the presence of:Miss Nyambura for the AppellantMr. Mwangi Kaingu for Mr. Onyango the Respondent.Court Assistant - Brian