https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9082

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **MILIMANI CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E957 OF 2022** **MOGO AUTO LIMITED …………………….……………….. APPELLANT** **VERSUS** **KASIERA MICHAEL ONJIRA ………………………..……. RESPONDENT** ***{(Being an appeal from the Decree of the Small Claim’s Court at Nairobi (Hon. C. A Okumu- RM/Adjudicator) arising from Judgement delivered on 21st October 2022 in SCCCOMM No. E4810 of 2022)}*** **JUDGMENT** **Background to the Appeal** 1. The Appellant herein is challenging the said learned trial court’s decision in which it dismissed its Claim despite entering interlocutory Judgement against the Respondent. The Appellant had sued the Respondent in the lower court for *inter alia* Judgment in the said sum of Kshs. 637,771/= the former had allegedly advanced to the latter as an asset finance loan, specifically for purchase of a motor vehicle registration number KCV 745 Q. The Respondent allegedly breached the contract by failing to repay the loan despite various demand notices issued to him, hence the Claim lodged in the lower court. 2. The Respondent failed to enter appearance and/or file a Response to the Claim within the period prescribed by the law. 3. On 1st September 2022 the trial court entered “interlocutory judgment’’ in favour of the Appellant. Thereafter, the Appellant’s Advocates filed written submissions and the court delivered the impugned Judgment on 21st October 2022. In the Judgment, the court found that the Appellant failed to discharge its burden of proving the Respondent’s liability for the Claim as required pursuant to **sections 107 and 108 of the Evidence Act**. **Grounds of Appeal** 1. The Appellants’ Grounds of Appeal as per Memorandum of Appeal dated 18th November 2022 are as hereunder: 2. **That the learned trial magistrate erred in law by dismissing the suit despite having entered interlocutory Judgment in favour of the Appellant.** **And** 1. **That the learned trial magistrate erred in law by delving into issues of liability after entering interlocutory Judgment in favour of the Appellant.** 2. The Appellant therefore prays that the Appeal be allowed; the trial court’s Judgment dated 21st October 2022 be set aside and that the costs of the Appeal be granted to them. **Guiding legal Principles** 1. It is trite law that a first appellate court is generally empowered to interfere with the findings and/or award of the trial court if the court misdirects itself on matters of fact and/or law by failing to take relevant factors into account or by considering irrelevant factors and thus arrive at a plainly wrong decision (see the case of **Ocean Freight Shipping Co. Ltd vs Oakdale Commodities Ltd (1997) eKLR Civil Appeal No. 198 of 1995**. The appellate court also has the duty of analysing and re-assessing the evidence on record and reach an independent decision as observed in the case of **Selle vs Associated Motor Boat Co. (1968) EA 123.** The Court of Appeal for East Africa in **Peters vs Sunday Post Limited [1958] EA 424** underscored the same principles delivering itself thus: ***“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;*** 1. ***In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and*** 2. ***It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”*** 3. The legal situation is a little different in relation to appeals emanating from the Small Claims Court such as the instant Appeal. Pursuant to **section 38(1) of the Small Claims Court Act**, this court’s jurisdiction is limited to arising issues of law only and this court is accordingly guided. 4. Learned Counsel for the Parties filed written submissions. **ANALYSIS AND DETERMINATION** **Appellant’s Submissions** 1. The Appellant’s Advocates point out that the interlocutory/default Judgment entered on 1st September 2022 has never been set aside, even in the court’s Judgment of 21st October 2022 and therefore it is in force. Making reference to the judicial determination in **Adam Hussen Ali & Another vs Geoffrey Ndiku Mutisya A. H. Hameed Traders (2015) eKLR**, Counsel further submit that a Plaintiff need not prove liability where interlocutory judgment is entered since the judgment is considered final on the issue of liability for the claim. According to the Appellant, only damages if prayed for need to be assessed in the circumstances. 2. The legal position is reiterated in **Board of Management St. Augustine Secondary School vs Chambalili Trading Co. Ltd. (2021) eKLR** also relied upon by the Appellant where it was posited that in a liquidated claim, Judgment in default of appearance and/or defence is not interlocutory but final**. (Order 10 Rule 4 Civil Procedure Rules 2010).** **Respondent’s Submissions** 1. The Respondent’s Advocates counter that the Claim before the lower court was not a liquidated demand but a claim for pecuniary damages. The trial court therefore properly set down the matter for “formal proof” after entering interlocutory Judgment, argue Counsel. 2. The Respondent acknowledges that interlocutory Judgment is final on liability but contends that this does not absolve claimants from proving the quantum of damages sought. The court is referred to **Order 10 Rule 6 Civil Procedure Rules 2010)** which enacts as follows**;** **“….. where a claim is for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages, and any defendant fails to appear, the court shall, on request in form No. 13 of Appendix A, enter interlocutory judgment against such defendant, and the Plaintiff shall set down the suit for assessment by the court of the damages or the value of the goods and damages as the case may be.”** 1. The Respondent further notes that the Appellant does not fault the trial court’s direction to it to file submissions on the matter. This court does not therefore have jurisdiction to disturb the decision of 1st September 2022 as no appeal has been filed against that decision, submit the Respondent’s Advocates. 2. Placing more reliance on **Kenya Power & Lighting Company Limited vs Nathan Karanja Gachoka & Another (2016) eKLR,** learned Counsel for the Respondent opine that even where evidence in a case is uncontroverted, it must bring out the fault and negligence of a defendant and the plaintiff has to discharge the burden of proof on a balance of probability. 3. In the premises, the Respondent maintains that the trial court did not err and the Appeal be dismissed with costs. **Determination** 1. The law in my view is that pecuniary damages refer to financial compensation awarded to a plaintiff to cover actual, quantifiable losses. They restore the victim to the financial position they would have been if the legal injury or breach of contract had not occurred. They are in the nature of general damages that are assessed by the court based on evidence presented before it. On the other hand, liquidated damages are specific claims not subject to assessment by the court but are allowed if uncontroverted and/or strictly proven as pleaded. 2. **Order 10 Rule (2) Civil Procedure Rules** **2010** provides for a scenario where, as here, the Plaintiff makes both a liquidated claim and some other claim, like general damages. Where the Defendant does not appear, the court shall enter Judgment for the liquidated demand and interest, save that the award of costs shall await Judgment upon such other claim as may have been made. 3. **Black’s Law Dictionary, Ninth Edition, defines interlocutory judgment** as; **“An intermediate judgement that determines a preliminary or subordinate point or plea but does not finally decide the case. A judgement or order given on a provisional or accessory claim or contention is generally interlocutory.”** 1. The **Court of Appeal in Ndungu & 19 Others vs Lusiola (Civil Appeal no. 363 2019) [2023] KECA 743 KLR (22 June 2023) (Judgment)** among many other judicial determinations restates the law on the meaning of interlocutory and default Judgments. 2. In effect, it is the court’s understanding that the Judgement entered by the trial court was a final default, and not interlocutory Judgement, upon the liquidated claim of Kshs. 637,771/= plus interest pursuant to **Order 10 Rule (2) of the Civil Procedure Rules 2010 *supra***. The remaining duty of the court was only to assess the general damages claim and decide which order to make as to the costs of the suit. The court did not assess general damages claimed and instead erroneously dismissed the entire claim. I, however, note that the Appellant does not seem to be seeking assessment of general damages in this Appeal and this court will not therefore undertake the task. In any event, the Appellant appeared to concede in its submissions before the lower court that general damages for breach of contract could not be awarded in the circumstances of the case. 3. In the end, the Appeal is allowed as follows; 4. **The trial court’s Judgment of 21st October 2022 on the issue of liability is set aside.** 5. **The “interlocutory judgment” entered on 1/9/2022 is deemed to be a final default judgment/decree against the Respondent in relation to the liquidated claim of Kshs. 637,771/= and interest thereon, which the Appellant is entitled to execute.** 6. **The Appellant shall have the costs of the Appeal.** 7. Judgment accordingly. **J. M. NANG’EA, JUDGE.** **Judgment, dated, signed and delivered virtually from Nakuru this 23rd day of June, 2026.** **In the presence of:** Appellant’s Advocate, Ms Maingi for Mr. Okoth. Respondent’s Advocate, Ms Ondego. Court Assistant (Jeniffer). **J. M. NANG’EA, JUDGE.**