https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9367

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT AT MILIMANI, NAIROBI.** **MILIMANI CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E 025 OF 2023** **MOGO AUTO LIMITED …………………………………. APPELLANT** **VERSUS** **OMI ABDALLA ……………….…………………………. RESPONDENT** ***{(Being an appeal from the Decree of the Small Claim’s Court at Nairobi (Hon. D.S Aswani- Resident Magistrate/Adjudicator) arising from Judgment delivered on 15th December 2022 in SCCC NO. E4583 OF 2022)}*** **JUDGMENT** **The pleadings in the lower court** 1. The Appellant herein is challenging the said learned trial Magistrate’s/Adjudicator’s decision in which interlocutory Judgment entered against the Respondent on 31st October 2022 for breach of contract was later set aside and the Claim brought by the Appellant was dismissed with no order as to costs. The Appellant had sued the Respondent in the lower court for general damages; a sum of Kshs. 254,991; the costs of the suit and interest for alleged breach of a contract dated 21/6/2021 relating to money had and received, as per Statement of Claim dated 27th July 2022. The Appellant pleaded that it had advanced an Asset Finance Loan of Kshs. 320,000/= to the Respondent for the purpose of purchasing a motor vehicle registration number KBN 732 B but he failed to make repayment of the loan. The Appellant claimed general damages, special damages in the said sum of Kshs. 254, 991/=, the costs of the suit and interest. 2. The Respondent failed to enter appearance and/or file a Response. Judgment in default was entered on 31st October 2022. The claim was thereafter set down for assessment of general damages for which the Appellant filed written submissions. **Grounds of Appeal and reliefs sought** 1. The Appellants’ Grounds of Appeal as per Memorandum of Appeal dated 12/01/ 2023 are as hereunder: 2. **That the learned trial magistrate erred in fact in finding that the loan and insurance agreements were not filed yet they were actually uploaded in the court’s e-filing portal.** 3. **That the learned trial magistrate erred in fact by finding that the Appellant did not plead the loan amount of Kshs. 320,000 yet the same is pleaded in the Statement of Claim.** **And** 1. **That the learned trial magistrate erred in law and fact by failing to consider the evidence filed in the court’s e-filing portal.** 2. The Appellant therefore prays that the Appeal be allowed and the trial court’s Judgement quashed with costs. **Guiding Principles** 1. It is trite law that generally in civil cases a first appellate court can only 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.** 2. By dint of **section 38(1) of the Small Claims Court’s Act**, however, an Appeal to this court from the Small Claims Court is limited to only any point(s) of law arising. **Analysis and Determination** 1. In his brief Judgment, the learned trial magistrate noted that the alleged loan amount was not pleaded in the Statement of Claim. The court further stated that although the parties’ loan and insurance agreement are listed in the Appellant’s bundle of documents, the documents were actually not filed. The Appellant’s demand letters dated 26/01/2022, 22/02/2022 and 07/03/2022 filed in court were also said to show different amounts claimed to be owing. The trial court then reached the conclusion that the Appellant had failed to prove its claim to the required legal standard and set aside the default Judgment. The lower court also proceeded to dismiss the claim with no order as to costs. 2. Only the Appellant filed submissions which I have perused against the Record of Appeal. Contrary to the learned trial magistrate’s observation in the impugned Judgment, the Appellant at paragraph 3 of the Statement of Claim actually states the nature of the claim as a sum of Kshs. 320,000/= advanced to the Respondent as an Asset Finance loan. At paragraph 5 of the Statement of Claim, the Appellant claimed the loan balance in the sum of Kshs. 254,991/=. 3. Whether or not the loan agreement was filed does not vitiate the fact that the contract was entered into between the parties as the Respondent has not defended the suit and rebut the claim. In any event, it is shown that a copy of the loan agreement dated 22/6/2021 was filed. It has long been held in many cases including in **Trust Bank Limited vs Paramount Universal Bank Limited & 2 Others (2009) eKLR** and **Autar Singh Bahra & Another vs Raju Govindji HCCC No. 548 of 1998** that failure by a party to call evidence means that the opposite party’s case is unchallenged and would be accepted as proven. 4. Moreover, it is noted from the record that “interlocutory judgement’’ was on 31/10/2022 entered in favour of the Appellant after the Respondent failed to enter appearance and/or filed defence within the period prescribed by the law. **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. 5. **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. The “interlocutory judgement’ entered by the trial court was therefore in fact final default, and not interlocutory Judgment as it relates to the liquidated claim of Kshs. 254, 991. 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. 3. There was in the circumstances a misdirection on the part of the trial court on a matter of law requiring the intervention of this court. The Appellant therefore discharged its duty of proving the liquidated claim of Kshs. 254,991/= on a balance of probability as required in law and so Claim was wrongly dismissed. 4. In the result, the Appeal succeeds. The lower court’s Judgment dated 15/12/2022 setting aside the default Judgment and dismissing the Claim is vacated, and substituted with this court’s order reinstating the Judgment of 31/10/2022 and affirming that the said Judgment is final default Judgment for the Appellant in the sum of Kshs. 254,991/= plus interest at court rates. The Appellant is further granted the costs of this Appeal. 5. Judgment accordingly. **J. M. NANG’EA, JUDGE.** **Judgment dated, signed and delivered virtually this 30th day of June, 2026.** **In the presence of:** The Appellant’s Advocate, Ms Mwagi The Respondent, Absent The Court Assistant, Jeniffer. **J. M. NANG’EA, JUDGE.**