https://new.kenyalaw.org/akn/ke/judgment/scc/2026/213

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT MALABA** **SCCOMM NO. E030 OF 2026** **ELIZABETH NASIUMA.……..….**………………………………………………………….. **CLAIMANT** VERSUS **JOHN ALEX MUKHONGO MUMELO………………..…………………..RESPONDENT** **RULING.** 1. What is before me for determination is the Respondent’s application dated 20th July 2026 wherein the Applicant seeks the following orders: - 2. That the suit be dismissed with costs for being an abuse of the court process 3. That the Honorable Court be pleased to rely on documents already filed in court by the Respondent 4. That the Honorable Court do bar and/or disqualify the Counsel for the Claimant Chengasia Murunga & Company Advocates from acting for the Claimant in this suit. 5. That the Honorable Court be pleased to refer the process server Moses Kuloba Keya and Counsel for the Claimant to the Director of Public Prosecutions and the Law Society of Kenya for investigation and appropriate action. 6. That costs of the application be provided for. 7. The grounds in support of the notice of motion application and reiterated in the Supporting Affidavit of John Alex Mumelo are that the affidavit of service sworn by Moses Kuloba Keya dated 16th July 2026 is false and that the Respondent was not served on alleged date of service as he was on off duty. That the Claimant and her agents have procured judgment by fraud and the matter has been reported to Bungoma Police Station. That the Claimant’s Counsel has common interest in the subject matter of this suit and participated in presenting false evidence and therefore ought to be barred. That it is in the interest of justice that the matter be dismissed and the culprits be investigated. 8. The court notes that the Respondent/Applicant avers that he has filed a Supporting Affidavit which is titled as Replying Affidavit reiterating issues of service of the decree and further alluding to an application which he avers seeks stay of the warrants of attachment and that he has filed an application seeking that he liquidate the decretal sum in installments. 9. The Application is opposed vide the Claimant’s Replying Affidavit sworn on the 4th day of August 2026 wherein it is deponed that the application is bad in law. That the applicant has participated in the matter since its inception and service of process has never been contested. That the Applicant has openly stated that he does not wish to pay the Respondent and that the judgment delivered on 31st March 2026 was not an exparte judgment. That the Applicant has not made any effort to pay either whole or part of decretal sum. That the application has been brought under the wrong provisions of the law and it ought to be dismissed with costs. 10. This matter came up for directions on 5th August 2026 when directions were taken that the Claimant’s/Respondent’s counsel be granted leave to file a further affidavit with respect to issues touching on the advocate and that the application be canvassed by way of submissions. Both parties have filed submissions which I have read and considered. 11. I note from the Record that the Respondent/Applicant has proceeded to file a second and third further affidavit alongside other documents including a replying affidavit dated 15th August 2026. These documents were filed without leave of court. As such the court shall not consider them and they are expunged from the court record. 12. I have considered the Notice of Motion dated 20th July 2026, the affidavits filed in support thereof, the Claimant’s Replying Affidavit sworn on 4th August 2026, the submissions by both parties and the entire record of the Court. The issue for determination is ***whether the Applicant has demonstrated a proper basis for the orders sought and, ultimately, whether the application amounts to an abuse of the process of the Court.*** 13. The Applicant principally seeks the setting aside of the judgment delivered on 31st March 2026 and all consequential orders, including the warrant of attachment. His case is substantially premised on the allegation that he was never served and that the affidavit of service sworn by the process server is false. He further alleges that the judgment was procured through fraud and false evidence. 14. The record, however, does not support the contention that the Applicant was a stranger to these proceedings. The Applicant participated in the matter from its inception and remained engaged in the proceedings leading to the judgment. Significantly, the question of service was not raised or contested at the material time. It is therefore difficult for the Court to accept, that the Applicant only became aware of the alleged want of service after judgment and after subsequent proceedings relating to execution. 15. More importantly, the law does not leave a party aggrieved by a judgment without a remedy. The Small Claims Court Act provides specific mechanisms through which a party may challenge a decision of this Court, including review and appeal, with the applicable Rules providing for an application for stay of execution. A party seeking to impeach a judgment on the basis of fraud, want of notice or any other recognised ground must, however, invoke the appropriate procedure and establish the factual and legal basis for the relief sought. 16. In the present case, the Applicant has previously approached the Court in relation to the judgment and execution, including seeking stay of execution and permission to satisfy the decretal amount by instalments. Those applications were considered and determined. The Applicant has not demonstrated any new circumstance or legally cognisable basis upon which the Court should once again reopen the matter through the present application. 17. The Court is equally concerned by the manner in which the Applicant has conducted the proceedings after judgment. On 5th August 2026, directions were issued permitting the filing of a further affidavit by the Claimant’s Counsel on the limited issue touching on the advocate and directing that the application be canvassed by way of submissions. The Applicant thereafter proceeded to file a second and third further affidavit, together with other documents, including a replying affidavit dated 15th August 2026, without leave of the Court. The Court has consequently expunged those documents from the record. 18. The filing of further documents in disregard of an express direction of the Court is not a mere procedural technicality. The Small Claims Court is designed to facilitate the just, expeditious and proportionate determination of disputes. Its flexibility in matters of procedure is intended to facilitate access to justice and not to permit endless interlocutory litigation. Procedural flexibility cannot be converted into procedural indiscipline. 19. I am therefore not persuaded that the present application represents a genuine invocation of a post-judgment remedy. Viewed against the history of the matter, the previous applications, the Applicant’s participation in the proceedings up to judgment, his failure to contest service at the material time and his subsequent filing of documents without leave, the application amounts to another attempt to reopen and re-litigate matters which have either been determined or ought properly to have been raised through the prescribed mechanisms. 20. The allegation that the process server and the Claimant’s advocate participated in the presentation of false evidence is serious. However, serious allegations do not, without proof, entitle a party to the orders sought. In particular, the Court cannot disqualified counsel merely upon an unsubstantiated allegation that counsel participated in presenting false evidence. Nor can the Court invoke criminal or disciplinary processes merely because a litigant has made allegations against an advocate or process server in the course of contested litigation. 21. I have also considered the prayer that the suit be dismissed as an abuse of the process of the Court. The suit has already proceeded to judgment. The proper question before the Court is therefore whether the present application constitutes an abuse of process. For the reasons set out above, I find that it does. A litigant cannot repeatedly approach the Court with successive applications seeking substantially the same reliefs, particularly after previous applications have been determined. 22. The Court must balance the right of every litigant to access justice with the equally important need for finality in litigation and the orderly administration of justice. Access to justice does not include a right to engage the Court in perpetual interlocutory proceedings. Once the Court has rendered itself on an issue, a party dissatisfied with that decision must pursue the remedy provided by law rather than continually return to the same Court through differently framed applications. 23. I consequently find that the Applicant has failed to establish a sufficient legal and factual basis for setting aside the judgment of 31st March 2026 or for granting any of the other substantive orders sought. The application is, in the circumstances, an abuse of the process of the Court and is devoid of merit. 24. In the result, the Notice of Motion dated 20th July 2026 is hereby dismissed with costs to the Claimant which the court assesses at Kshs. 10,000/=. For avoidance of doubt, the judgment delivered on 31st March 2026 and all consequential orders remain undisturbed. 25. The Applicant is hereby directed that he shall not file any further application, affidavit or other document in this matter without the prior leave of the Court. Any application for leave shall first demonstrate the nature of the proposed application, the legal basis upon which it is brought and the reason why the matter could not properly have been raised in the proceedings or applications already determined. 26. Any document filed in contravention of this direction shall not be considered by the Court and may, without further reference to the Applicant, be expunged from the record. **RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT MALABA SMALL CLAIMS COURT THIS 19TH DAY OF AUGUST 2026.** In the Presence of Ms. Wakasa for the Claimant John Mumelo Mukhongo the Respondent Court Assistant: Brenda Ochieng’ **A.Z. OGANGE** **RESIDENT MAGISTRATE/ADJUDICATOR** 19.08.2026