https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12738

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. HCCSCA E291 OF 2025** **CATHERINE NJENGA......................................................1ST APPELLANT** **PAYCHECK HUMAN RESOURCES SERVICES LTD..........2ND APPELLANT** **VERSUS** **WILSON MATHERI NJUGUNA..........................................RESPONDENT** ***(Being an appeal from the Judgment and Orders of the Small Claims Court at Nairobi in SCC COMM E78464 of 2025 delivered on 15th August 2025 by Hon. V.K. Momanyi (Adjudicator))*** **JUDGMENT** **Background** 1. The dispute herein arose from an agreement made between the Respondent and the Appellants concerning the processing of employment opportunities for the Respondent's two sons in Romania. 2. The 1st Appellant is the proprietor of the 2nd Appellant, a company engaged in labour recruitment and overseas placement services. The parties do not dispute that they entered into an agreement under which the Appellants undertook to facilitate employment and travel documentation for the Respondent's sons upon payment of an agreed consideration. 3. According to the Respondent, the agreed consideration was Kshs. 550,000/=, which he paid through various M-Pesa and bank transfers. His contention before the Small Claims Court was that despite making payment, the Appellants failed to perform their obligations under the agreement after which his sons' intended travel was cancelled. He consequently sought a refund of the monies paid. 4. The Appellants admitted receiving part of the monies but disputed both the total amount alleged to have been paid and their liability to refund the entire sum. Their position was that substantial expenses had already been incurred in processing the applications, obtaining documentation, medical examinations and visa-related requirements. 5. They further maintained that the failure of one of the Respondent's sons to secure a Romanian visa resulted from factors beyond their control and could not amount to a breach of the agreement on their part. 6. After considering the pleadings and documents filed by the parties, the learned Adjudicator entered judgment in favour of the Respondent and awarded him Kshs. 515,000/= together with costs. 7. Dissatisfied with both the findings and the resultant award, the Appellants lodged the present appeal. They challenge the judgment principally on the grounds that the learned Adjudicator went outside the pleadings, failed to properly evaluate the evidence placed before the court, ignored material documentary evidence relating to the payments made and the alleged breach of contract, and rendered judgment after expiry of the sixty-day period prescribed under section 34 of the Small Claims Court Act. 8. The Respondent opposes the appeal. He maintains that the learned Adjudicator correctly appreciated both the law and the evidence, properly found that the Appellants were in breach of the agreement, and lawfully ordered a refund of the monies proved to have been paid. He further contends that the sixty-day period granted under section 34 of the Small Claims Court Act is directory rather than mandatory and that the Small Claims Court retained jurisdiction notwithstanding the lapse of that period. **The Appeal** 1. The Memorandum of Appeal raises several grounds which, although framed separately, substantially challenge three aspects of the judgment. 2. First, the Appellants contend that the learned Adjudicator misdirected herself in awarding Kshs. 515,000/= notwithstanding the fact that the Respondent's pleadings sought a different relief and the evidence allegedly demonstrated that the actual payments received by the Appellants amounted to Kshs. 400,000/= rather than Kshs. 515,000/= or Kshs. 550,000/=. 3. Secondly, the Appellants contend that the learned Adjudicator ignored material documentary evidence demonstrating that some of the transactions relied upon by the Respondent either related to third parties or constituted reversed transactions that ought not to have formed part of the computation of the refundable amount. 4. Thirdly, the Appellants contend that the learned Adjudicator erred in law by rendering judgment after expiry of the sixty-day period prescribed under section 34 of the Small Claims Court Act, thereby acting without jurisdiction. 5. The Appellants also fault the learned Adjudicator for allegedly granting reliefs that were not specifically pleaded, failing to appreciate the contractual obligations assumed by each party, and failing to properly evaluate the documentary evidence placed before the court. 6. The Appeal was canvassed by way of written submissions which I have considered. **The Appellants' Submissions** 1. The Appellants argued that the Respondent commenced proceedings before the Small Claims Court on the basis of a claim described as one for money had and received under section 12 of the Small Claims Court Act. It was submitted that although the Respondent pleaded payment of Kshs. 550,000/=, neither the pleadings nor the documentary evidence supported the award ultimately entered by the trial court. 2. The Appellants submitted that an examination of the Respondent's own bank statements revealed that only Kshs. 400,000/= was actually transmitted to the 1st Appellant. According to the Appellants, the remaining transactions relied upon by the Respondent either involved third parties or constituted reversed transactions that could not properly be counted twice. 3. Particular emphasis was placed on a transfer of Kshs. 15,000/= allegedly made to one **Mary Njenga**, who was said not to be a party to the proceedings, as well as a transaction of Kshs. 50,000/= which, according to the Appellants, had initially been initiated on 15th May 2024, reversed on the same day, and only successfully transferred on 16th May 2024. It was submitted that the learned Adjudicator erroneously counted both entries, thereby inflating the amount awarded. 4. It was further submitted that the trial court granted relief that had neither been pleaded nor proved. The Appellants argued that the Respondent's pleadings sought a specific amount and that the learned Adjudicator lacked jurisdiction to award a different figure unsupported by either the pleadings or the evidence. 5. The Appellants relied on authorities emphasizing that parties are bound by their pleadings, including ***Githaiga vs. Mwangi* (Civil Appeal E064 of 2022)** and ***Standard Chartered Bank vs. Masinde* (Civil Appeal 139 of 2023)**. It was submitted that the learned Adjudicator departed from those settled principles by granting relief not founded upon the Respondent's pleaded case. **The Respondent's Submissions** 1. The Respondent opposed the appeal in its entirety and urged the Court to uphold the judgment of the learned Adjudicator. It was submitted that the existence of a contractual relationship between the parties was never in dispute. According to the Respondent, the evidence before the Small Claims Court established the essential elements of a valid contract, namely; offer, acceptance and consideration, all of which were demonstrated through the parties' conduct, M-Pesa transactions, bank statements and WhatsApp communications. 2. It was submitted that the Appellants admitted receipt of substantial payments from the Respondent and that the dispute concerned their failure to fulfil their contractual obligations. It was argued that the Respondent paid a total consideration of Kshs. 550,000/= for the facilitation of overseas employment for his two sons in Romania but that the agreed services were not rendered within the agreed period. 3. The Respondent maintained that once the intended travel failed to materialize, the parties mutually agreed that the monies paid would be refunded. According to the Respondent, the evidence, particularly the WhatsApp exchanges, demonstrated an unequivocal acknowledgment by the Appellants of their obligation to refund the Respondent. 4. The Respondent argued that the Appellants could not lawfully substitute the original contractual obligation by proposing alternative destinations for employment, including Dubai, without the Respondent's consent. It was submitted that such unilateral variation constituted a material departure from the parties' agreement and amounted to breach of contract. 5. The Respondent further submitted that the Appellants' attempt to attribute the failure of the Romanian visa application to the Embassy was misplaced. He contended that the responsibility undertaken by the Appellants extended beyond merely submitting documents and included successful facilitation of the agreed employment arrangement. The Respondent therefore maintained that the risk of failure lay with the Appellants. 6. Reliance was placed on ***Agricultural Finance Corporation vs. Lengetia Ltd* [1985] KLR** for the proposition that contractual obligations bind only the contracting parties and cannot be altered without their consent. Reference was also made to ***William Kazungu Karisa vs. Cosmas Angore Chanzera* [2006] eKLR** for the principle that courts ought not rewrite contracts voluntarily entered into by parties. 7. The Respondent further relied on ***Hydro Water Well (K) Ltd vs. Sechere & 2 Others* [2021] KEHC 22 (KLR)** for the proposition that damages for breach of contract are intended to place the innocent party, as nearly as money can do, in the position he would have occupied had the contract been performed. 8. The Respondent also cited ***Fredrick Ochiel vs. Kennedy Okoth* (Civil Appeal E002 of 2025)**, in which the High Court recognised that electronic communications, including WhatsApp messages, may constitute evidence of contractual terms where they demonstrate offer, acceptance and consideration. It was submitted that the WhatsApp exchanges produced before the trial court corroborated the existence of an agreement for refund. 9. On jurisdiction, the Respondent submitted that the Appellants had misconstrued section 34 of the Small Claims Court Act and argued that the statutory requirement that proceedings be concluded within sixty days is expressed in directory rather than mandatory language. Particular emphasis was placed on the phrase "so far as practicable in the circumstances," which, according to the Respondent, demonstrates Parliament's intention that delays occasioned by practical realities should not invalidate otherwise lawful proceedings. 10. The Respondent relied on ***Lumumba vs. Rift Gas Ltd* (Civil Appeal E805 of 2022) [2023] KEHC 25998 (KLR)**, where the High Court held that expiry of the sixty-day period under section 34 does not automatically divest the Small Claims Court of jurisdiction. 11. It was further submitted that the Appellants' objection to jurisdiction was itself an afterthought as they actively participated in the proceedings until judgment was delivered and only challenged jurisdiction after suffering an adverse outcome. 12. In support of the said proposition, reliance was placed on ***Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd* [1969] EA 696** for the principle that jurisdictional objections capable of being raised as preliminary objections ought to be taken at the earliest opportunity and not after the merits of the dispute have been determined. 13. The Respondent therefore urged the Court to dismiss the appeal, uphold the judgment of the Small Claims Court and award costs. **Duty of the Court** 1. This being a first appeal, the Court is obligated to reconsider and re-evaluate the entire evidence on record and draw its own independent conclusions while bearing in mind the fact that it neither saw nor heard the witnesses testify. (See ***Selle vs. Associated Motor Boat Co. Ltd* [1968] EA 123).** 2. Similar principles were articulated in ***Pandya vs. Republic* [1957] EA 336**, where it was emphasized that a first appellate court must rehear the case on the evidence and reach its own conclusions, though giving due regard to the findings of the trial court on matters of credibility. **Analysis and Determination** 1. Having considered the Record of Appeal, the rival submissions and the authorities cited by the parties, the Court is of the respectful view that the appeal raises the following issues for determination: 2. ***Whether the Small Claims Court retained jurisdiction to determine the claim after the expiry of the sixty-day period stipulated under section 34 of the Small Claims Court Act.*** 3. ***Whether the learned Adjudicator misdirected herself in awarding the Respondent Kshs. 515,000/=.*** 4. ***Whether the learned Adjudicator granted relief beyond the pleadings and evidence presented before the Small Claims Court.*** 5. ***Whether the learned Adjudicator failed to properly evaluate the documentary evidence relating to the payments made by the Respondent and the alleged breach of contract.*** 6. ***Whether the appeal is merited.*** **Jurisdiction** 1. The Appellants' first ground of appeal challenges the jurisdiction of the Small Claims Court on the basis that judgment was delivered more than sixty days after institution of the suit contrary to section 34 of the Small Claims Court Act. 2. Section 34 provides that proceedings before the Small Claims Court shall be heard and determined within sixty days "so far as practicable in the circumstances." I find that the qualifying phrase demonstrates that Parliament did not intend the sixty-day period to be an absolute jurisdictional limitation but rather an administrative timeline intended to facilitate expeditious disposal of claims. My take is that had Parliament intended proceedings concluded outside that period to be nullities, it would have expressly stated so. 3. This Court agrees with the reasoning adopted in **Lumumba vs. Rift Gas Ltd** (supra) that the provision is directory rather than mandatory. A contrary interpretation would penalize litigants for delays occasioned by the court itself and would undermine Article 159 of the Constitution, which requires courts to administer substantive justice. 4. I find that the ground of appeal challenging jurisdiction therefore fails. ### Evaluation of Evidence 1. The parties are agreed that they entered into an oral agreement for facilitation of overseas employment for the Respondent's two sons. The evidence also establishes that the Respondent paid monies to the Appellants for that purpose. The dispute is not whether a contract existed but rather, whether the Appellants performed their contractual obligations and, if not, what amount, if any, was refundable. 2. The Appellants admitted receiving substantial payments from the Respondent and acknowledged that some amount remained refundable after deducting expenses incurred during the recruitment process. They also produced evidence showing that recruitment had commenced, documentation had been processed and that one beneficiary was eventually deployed to the United Arab Emirates after the Romanian visa application was unsuccessful. 3. Conversely, the Respondent maintained that the contract specifically contemplated employment in Romania and that he never consented to a substitution of destination. He relied on WhatsApp communications as evidence that the Appellants acknowledged liability to refund the monies paid. 4. While the Court is satisfied that the agreement relating to Romania was not fully performed, it is equally satisfied that the learned Adjudicator did not adequately evaluate the Appellants' evidence concerning the extent of performance, the expenses allegedly incurred in processing the applications, and the documentary evidence relating to the actual sums received. ### Award of Kshs. 515,000/= 1. I have carefully examined the record and I am unable to conclude that the award of Kshs. 515,000/= was fully supported by the documentary evidence. 2. The Appellants specifically challenged the computation of the amount awarded, contending that some payments were made to third parties who were not parties to the proceedings and further, that one banking transaction was reversed before being successfully retransmitted and was therefore counted twice. The Appellants added that the the documentary evidence established direct payments to the 1st Appellant in amounts lower than those ultimately accepted by the trial court. 3. I find that the matters raised by the Appellants go to the heart of the computation of the refundable amount and required careful analysis by the learned Adjudicator. 4. A perusal of the judgment reveals that it does not sufficiently demonstrate how the figure of Kshs. 515,000/= was arrived at in light of the disputed banking records nor does it explain why the Appellants' evidence regarding the alleged duplicate transaction and payments to third parties was rejected. 5. An appellate court is entitled to interfere with a decision where the trial court fails to evaluate material evidence or reaches findings unsupported by the record. ### Relief Outside the Pleadings 1. This Court is not persuaded that the learned Adjudicator awarded relief outside the pleadings merely because the award was lower than the pleaded sum of Kshs. 550,000/=. 2. It is trite that a court is entitled to award a lesser amount than that pleaded where the evidence supports such an award. I find that the error in the present case is not that the award differed from the pleaded figure but that the evidentiary basis for arriving at Kshs. 515,000/= is not adequately demonstrated. 3. Accordingly, this ground of appeal succeeds only to the extent that the quantum awarded was not sufficiently supported by the evidence. ### Breach of Contract 1. The evidence demonstrates that the parties entered into an agreement for facilitation of employment in Romania. That destination formed an essential term of the contract. 2. Although one beneficiary was subsequently facilitated to obtain employment in the United Arab Emirates, there is no evidence to show that the Respondent agreed to vary the original contract. Under the principles stated in **Agricultural Finance Corporation vs. Lengetia Ltd [1985] KLR** and **William Kazungu Karisa vs. Cosmas Angore Chanzera [2006] eKLR**, contractual terms cannot be unilaterally varied. 3. I therefore find that the Appellants did not fully perform the contract as agreed. Nevertheless, that finding does not automatically entitle the Respondent to recovery of the entire amount claimed. The Appellants were entitled to have the evidence relating to expenses actually incurred considered before determining the refundable balance. 4. Having regard to the findings and observations that I have made in this judgment, I find that the instant appeal partially succeeds in the following terms: 5. ***The finding that the Appellants were liable for breach of contract is upheld****.* 6. ***The award of******Kshs. 515,000/= is******set aside****.* 7. ***The matter is remitted to the Small Claims Court before a different Adjudicator******for the limited purpose of determining the amount, if any, refundable to the Respondent after evaluating the documentary evidence relating to:*** 1. ***the total payments made;*** 2. ***the expenses incurred by the Appellants; and*** 3. ***the effect of the disputed banking transactions.*** 8. ***The findings on liability shall remain undisturbed.*** 9. ***Each party shall bear its own costs of this appeal, while the costs of the rehearing on quantum shall abide the outcome before the Small Claims Court.*** It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026** **HON W A OKWANY** **JUDGE**