https://new.kenyalaw.org/akn/ke/judgment/scc/2026/226

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT OF KENYA AT UASIN GISHU COUNTY COURT NAME: ELDORET SMALL CLAIMS COURT** **CASE NUMBER: SCCCOMM/E4756/2025** **ALEX MBUGUA VS AUGUSTINE OTIENO MUGADA** **RULING** 1. The Respondent/Applicant has moved the Court through the application dated 5th July 2026 seeking, principally, orders staying execution of the judgment pending the hearing and determination of the application; review and setting aside of the judgment delivered on 5th June 2026; and, in its place, maintenance of the judgment on admission for Kshs.100,000/= entered on 4th May 2026 and allowance of the Applicant's counterclaim as particularized in paragraph 3 a-c of the application. The Applicant further seeks costs of the claim, counterclaim and the application. 2. The application is premised on the grounds appearing on its face and is supported by the affidavit sworn by Augustine Otieno Mugada. The Applicant depones that he is aggrieved by the judgment of this Court on the ground, inter alia, that the Court failed to consider the import and application of section 20(a) of the Sale of Goods Act. It is the Applicant's case that the undisputed evidence was that the Claimant had transferred the motor vehicle into the Applicant's name and that a registration certificate was issued on 28th October 2024, with a charge registered thereon in favour of Group Power Company Limited. The Applicant contends that, by dint of section 8 of the Traffic Act, Cap. 403, he was the owner of the motor vehicle. 3. The Applicant further contends that the Court misapprehended the evidence regarding payment of Kshs.500,000/=. He states that the said sum had been paid to the Claimant after the Applicant obtained financing from Group Power Company Limited, which subsequently registered a charge over the motor vehicle. He further avers that it would amount to unjust enrichment for the Claimant to retain the motor vehicle and at the same time enjoy a monetary judgment arising from the same transaction. He also contends that the Court erred in its treatment of the concepts of detinue and conversion, since the Claimant remained in possession of a motor vehicle which was registered in the Applicant's name. 4. The application is opposed. In the grounds of opposition dated 15th July 2026, the Claimant contends that the application is defective, an abuse of the process of the Court, contradictory and self-defeating. It is further contended that the application is merely intended to delay the Claimant from enjoying the fruits of his judgment. The Claimant also contends that this Court is functus officio, arguing that upon delivery of the final judgment, the Court lacks jurisdiction to sit on appeal over its own decision or re-evaluate the evidence and arrive at a different conclusion. 5. The application was canvassed by way of written submissions. On 30th July 2026, when the matter came up for mention to confirm compliance, the parties had not filed their submissions. A further mention was therefore fixed for 10th August 2026. On that date, only the Claimant/Respondent had complied. Counsel for the Applicant was granted a further four days within which to file submissions. At the time of writing this ruling, however, the Applicant had not filed submissions. Nevertheless, the Court has considered the application, the affidavit in support, the grounds of opposition and the submissions filed by the Claimant/Respondent. The following issue arises for determination: a*. Whether the applicant has established sufficient grounds for review and setting aside of the judgment delivered on 5th June, 2026 and, consequently, whether an order for stay of execution ought to issue.* 1. It is common ground that the judgment sought to be reviewed was delivered on 5th June 2026, while the present application was filed on 5th July 2026. The application was therefore filed within thirty days of the impugned judgment. Section 41(1) of the Small Claims Court Act empowers an Adjudicator, on application by an aggrieved party or on the Court's own motion, to review an order of the Court where: a. the order was made ex parte without notice to the applicant; b. the claim or order was outside the jurisdiction of the Court; c. the order was obtained fraudulently; d. there was an error of law on the face of the record; or e. new facts previously not before the Court have been discovered by either of the parties. 1. Section 41(2) further provides that an application for review shall be made within thirty days of the order or award sought to be reviewed, or such other period as the Court may allow. The present application having been filed within thirty days, it is properly before the Court as regards time. 2. Rule 29 of the Small Claims Court Rules also provides for review of a decree or order where an error apparent on the face of the record or a clerical or arithmetical mistake is demonstrated. The question therefore is whether the Applicant has demonstrated any of the statutory grounds for review, particularly an error of law on the face of the record. 3. The Applicant's principal averment is that the Court failed to consider the import of section 20(a) of the Sale of Goods Act and the legal effect of the transfer and registration of the motor vehicle in his name. Section 8 of the Traffic Act provides for proof of ownership of a motor vehicle by registration, subject to proof to the contrary. Registration therefore constitutes prima facie evidence of ownership but is not, in every case, conclusive proof of beneficial or actual ownership. See the case of Kamau v Omondi & 2 others (Civil Appeal E961 of 2024) [2025] KEHC 9138 (KLR) (Civ) (26 June 2025) (Judgment) Justice Asenath Ongeri stated....... "My understanding of this section is that the registration of the motor-vehicle is not conclusive proof of ownership but only prima facie evidence of title to a motor vehicle". Consequently, the fact that the motor vehicle was registered in the applicant's name does not, without more, demonstrate an error on the face of the record. The statutory presumption under section 8 remains open to rebuttal by other evidence relating to the transaction between the parties. 4. The applicant relies on section 20(a) of the Sale of Goods Act. That provision concerns the passing of property in specific goods in a deliverable state where the contract is unconditional. The applicant's argument is essentially that property in the motor vehicle had passed to him and that the subsequent registration in his name reinforced that position. However, whether section 20(a) applies to the transaction in issue, the nature and terms of the agreement between the parties, when property in the motor vehicle passed, the effect of the registration, and the effect of the charge registered in favour of Group Power Company Limited are matters which require consideration of the evidence and circumstances of the transaction. Further, the applicant wants the judgment to be reviewed and maintain the judgement on admission of ksh 100,000/- as entered on 4th May, 2026 and allow the applicants counter claim, indeed the applicant clearly averred during trial that the vehicle had been transferred to him but he still owed the claimant/ respondent ksh 100,000/- he admitted, judgment was entered on admission but the balance was disputed and the matter proceeded on trial to determine the balance. 5. The jurisdiction of review cannot be invoked merely because a party is dissatisfied with the Court's evaluation of evidence or believes that the Court ought to have arrived at a different conclusion. In the case of Nyamogo & Nyamogo Advocates v. Kogo [2001] EA 173 as cited in the case of Joseph v Golden Years Ltd (Cause E142 of 2022) [2026] KEELRC 2122 (KLR) held that “An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. In the same case, the good judge cited the case of National Bank of Kenya Limited v. Ndungu Njau [1997] eKLR where the court of Appeal held that “A review may be granted whenever the court considers that it is necessary to correct an error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of the law. Misconstruing a statute or other provision of the law cannot be a ground for review.” 6. I am guided by the foregoing principles. The applicant's complaints concerning section 20(a) of the Sale of Goods Act, the effect of registration under section 8 of the Traffic Act, the payment of Kshs.500,000/=, ownership of the motor vehicle, and the alleged conversion or detinue require the Court to revisit and re-evaluate the evidence that was before it at the hearing. This is particularly so with respect to the alleged payment of Kshs.500,000/=. The applicant contends that the Court failed to appreciate that the claimant had already received the said sum. However, whether that payment was made, the circumstances under which it was made, its legal effect on the parties' agreement and whether it was taken into account in the judgment are evidentiary questions. They cannot, without more, be transformed into an error apparent on the face of the record. 7. If the applicant's contention is that the Court reached an incorrect conclusion after considering the evidence, the proper avenue is an appeal on a question of law as provided under section 38 of the Small Claims Court Act and not a review designed to permit the Court to sit on appeal over its own judgment. The applicant's argument on unjust enrichment does not alter that conclusion. If the claimant were to obtain a monetary award while simultaneously retaining property which, under the judgment, he was not entitled to retain, the execution of such orders would obviously have to be consistent with the terms and effect of the judgment. However, the mere assertion that the claimant may be unjustly enriched does not, in itself, establish any of the statutory grounds for review. 8. As to the issue regarding detinue and conversion essentially challenges the Court's conclusions concerning possession, ownership and the claimant's entitlement to the motor vehicle. Those are matters which were within the province of the Court when it determined the claim. A party cannot use review to obtain a second hearing on the merits merely because he is dissatisfied with the conclusions reached. 9. The applicant has further sought the setting aside of the judgment of 5th June, 2026 and its replacement with the earlier judgment on admission of Kshs.100,000/-. Section 43 of the Small Claims Court Act empowers this Court, on application by a party, to set aside any of its orders and make such further orders as it considers just. The power, however, is discretionary and must be exercised judicially and on the basis of sufficient cause being demonstrated. In the present case, no sufficient basis has been demonstrated for invoking that discretion. 10. The applicant has also sought a stay of execution pending the determination of the application. Section 42(1) of the Small Claims Court Act expressly provides that the filing of an application for review does not, by itself, operate as a stay of execution. The Court may, however, order a stay and impose such conditions as to costs, payment into Court, security or otherwise as it considers fit. In the present case, the substantive application for review has been found to be without merit. There would therefore be no proper basis for preserving the judgment through a stay of execution merely to afford the applicant an opportunity to pursue a review which has not satisfied the statutory threshold. The prayer for stay of execution consequently fails. 11. In the upshot, the application dated 5th July, 2026 is hereby dismissed with costs of ksh 5000/-. Leave to appeal is granted to parties Ruling dated and delivered electronically at Eldoret this 21th day of August, 2026. M.E Aligula-RM In the presence of C/A Mr. Lepatoiye