https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9016

Okadapau v Mamboleo (Civil Appeal E011 of 2026) [2026] KEHC 9016 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 9016 (KLR) Republic of Kenya In the High Court at Busia Civil Appeal E011 of 2026 SM Mohochi, J June 24, 2026 Between Paul Emung’as Okadapau Appellant and Isaac Surungai Mamboleo Respondent Ruling Applicants Case 1.The Applicant moved this court on the 9th February 2026 simultaneous filed and Appeal and this instant Application which he sought the following reliefs;a.That this Honorable Court be pleased to grant leave to the Applicant to file appeal against the Decree issued on or about 9th February 2026 in SCCCOMM Case No. E 373 of 2025.b.That pending the hearing and determination of this Application, there be a stay of execution of the Decree issued on or about 9th February 2026 in SCCCOMM Case No. E 373 of 2025.c.That the Honorable Court be pleased to order the Learned Adjudicator/Magistrate of the Small Claims Court at Busia to prepare, certify, and supply to the Applicant a formal written Judgment in SCCCOMM Case No. E 373 of 2025 within Seven (7) days of this order.d.That the Deputy Registrar of this Honorable Court compels the production of the Lower Court file and certified copies of the proceedings and Judgment in SCCCOMM Case No. E 373 of 2025 to enable the filing of a competent Memorandum of Appeal.e.That the costs of this Application be provided for.The Application was based on the following grounds:a.The Learned Adjudicator erred in law and procedure by issuing a final Decree without first delivering a reasoned Judgment.b.The Applicant’s right to a fair hearing under Article 50 of the Constitution and his right to appeal under Article 164 of the Constitution and Section 75 of the Civil Procedure Act are infringed as he cannot comprehend the basis of the decree against him.c.The Applicant stands to suffer substantial loss and prejudice as the Respondent may proceed with execution based on a procedurally flawed decree.d.The intended Appeal is arguable and raises a fundamental point of law on the necessity of a judgment preceding a decree.e.It is in the interest of justice that the lower court first complies with the law by delivering a judgment.. 2.In his written submissions date 9th February, the Applicant contends that, the gravamen of his case is a profound procedural illegality that vitiates the entire lower court process: the issuance of a decree without a preceding judgment.He refines three (3) issues for the determination by this court as follows;i.Whether the issuance of a decree without a judgment constitutes an error of law warranting the intervention of this Honorable Court.ii.Whether the Applicant’s constitutional and statutory rights have been infringed.iii.Whether the orders sought, including extension of time and stay of execution, should be granted. 3.The Applicant submits that law is sacrosanct on the sequence of judicial decision-making. Order 21 Rule 4 of the Civil Procedure Rules states: “Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such a decision.” The “decision thereon” culminates in a decree under Section 34 of the Civil Procedure Act. 4.That the Court of Appeal in Mohamed Abdi Mohamud v Ahmed Abdullahi Mohamad & 3 others [2018] eKLR emphasized that a judgment is the final decision of the court which must be reasoned. A decree is merely the formal expression of that decision. Issuing a decree without a judgment is akin to putting the cart before the horse; it is a fundamental irregularity. See also Kenyatta International Convention Centre v Greenstar Systems Limited [2021] eKLR where the court held that a decree extracted without a judgment is incompetent. 5.That Article 50(1) & (2)(q) of the Constitution guarantees the right to a fair hearing, which includes the right to have the reasons for a decision given. The Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR underscored that the duty to give reasons is a component of the right to fair hearing and is essential for the exercise of the right of appeal. 6.That Section 80 of the Magistrates’ Courts Act explicitly requires magistrates to record a judgment. The Small Claims Court, though a specialized court, is not exempt from these fundamental tenets of justice. By failing to provide a judgment, the Adjudicator denied the Appellant his right under Article 164(3) of the Constitution and Section 75 of the Civil Procedure Act to appeal, as he cannot discern the basis of the adverse decision. 7.That the Applicant filed comprehensive Written Submissions in his small claims court case challenging the very existence of a loan contract, citing lack of certainty of terms (Judy Wanjiku Muriithi v Savings & Loan Kenya Ltd [2014] eKLR) and questioning the intention to create legal relations. The failure to deliver a judgment creates an unavoidable inference that these substantive arguments were not considered, which is in itself a denial of justice. 8.That the defect is so radical that it renders the decree a nullity. The Court has the inherent power under Article 159(2)(d) of the Constitution and Section 3A of the Civil Procedure Act to make such orders as are necessary for the ends of justice. The proper orders are:i.Extension of Time: The delay is explained and is not attributable to the Appellant. The test in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR favors granting extension where the intended appeal is arguable and the delay is excusable.ii.Stay of Execution: The Appellant has demonstrated a prima facie case of a procedural nullity. If execution proceeds, the appeal, which challenges the very foundation of the decree, will be rendered nugatory.iii.Remittal/Supply of Judgment: The most appropriate order is to direct the lower court to comply with the law by delivering a judgment, or in the alternative, to have the matter heard afresh. 9.In conclusion the Applicant/Intended Appellant maintains that he has demonstrated a clear and undeniable error of law committed by the lower court. The urgency is real, and the prejudice to the Appellant should the application be denied is grave and irreparable, respectfully praying that, the Court grants all the prayers in the Notice of Motion and admits the Draft Memorandum of Appeal for filing upon compliance, to safeguard the integrity of the judicial process and the rights of the litigant. The Respondent’s Case 10.The Respondent opposes the Application contending that, the case is straightforward that the Applicant filed a Miscellaneous Application seeking, inter alia, leave to appeal out of time, stay of execution, and orders to compel the Small Claims Court to produce a written judgment on the basis that no reasoned judgment was delivered. 11.It is the Respondent’s submission that, the application is fatally incompetent, an abuse of the court process, and a disingenuous tactic calculated to delay the Respondent from enjoying the fruits of his lawful judgment. 12.The Respondent refines the following four (4) issues as arising for determination by this Court;a.Whether the Applicant's application and intended appeal are competent in light of the provisions of Section 38 of the Small Claims Court Act?b.Whether the Applicant has satisfied the conditions for grant of leave to appeal out of time?c.Whether the Applicant has satisfied the conditions for grant of orders of stay of execution pending appeal?d.Whether the Applicant has established any grounds to warrant orders compelling the production of proceedings and judgment? 13.On the 1st issue as to whether the Applicant's application and intended appeal are competent in light of the provisions of Section 38 of the Small Claims Court Act, the Respondent submits that, this Court's jurisdiction to entertain an appeal from the Small Claims Court is circumscribed by Section 38(1) of the Small Claims Court Act, which provides:“A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law." 14.That it is trite law that an appeal to the High Court from the Small Claims Court lies only on matters of law and not on matters of fact. 15.Reference is made to the case of Makhatsa v Mutuku (Civil Appeal 28 of 2023) [2023] KEHC 26921 (KLR), the court held that grounds of appeal dealing with quantum (a factual issue) could not form the basis of a competent appeal under Section 38. 16.That the instant case, the Applicant's entire grievance, as pleaded in his Supporting Affidavit and Memorandum of Appeal, is that the Learned Adjudicator did not deliver a written judgment. This is a procedural complaint. 17.The Respondent avers that the Adjudicator delivered an oral decision in open court on 9th February 2026 where he entered an interlocutory judgment against the respondent in respect to Busia small claims commercial case number E373 of 2025, which constitutes a judgment of the court. An oral pronouncement in open court, especially in a court that values expeditious disposal under Section 34 of the Act, is a valid decision. The absence of a separate, typed document does not invalidate the decision rendered in the presence of the parties. 18.That the Applicant has not pointed to any specific error of law in the reasoning of the trial court. Instead, he seeks to use this procedural complaint as a backdoor to re-litigate the entire claim. The Respondent humbly submits that this is a misuse of the appellate process. 19.On the 2nd issue as to whether the application for leave to Appeal is premature and procedural? the Respondent submits that the Applicant has invoked the provisions of Section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules seeking enlargement of time to file an appeal. 20.The Respondent submits that, this application is premature as the timeline for filing an appeal from the Small Claims Court is not provided for in the Act, but the court in the case of Sunstone Building Material Co. Limited v Odungo & another (Civil Appeal E153 of 2023) [2023] KEHC 22469 (KLR) held that an appeal must be filed within a reasonable time, drawing analogy from the 30-day period allowed for review under Section 41 of the Act. The court stated:“My finding is that in view of the provision under Section 30 of the Act prescribing for time for lodging application for review of the decision of the court, then that is the reasonable time within which an appeal from the Small Claims Court to the High Court ought to be filed. Anything outside that period is incompetently filed..." 21.That, crucially, Order 42 Rule 2 of the Civil Procedure Rules requires a party wishing to appeal to apply for copies of proceedings and judgment. And the Applicant's letter to the Small Claims Court requesting proceedings, dated 27th February 2026 written 18 days after the judgment was delivered. 22.That the Application was filed on 9th January 2026, the very same day judgment was delivered, without first taking the mandatory procedural step of requesting for the proceedings to ascertain if a judgment exists. The Respondent submits that, an applicant cannot seek refuge in the court's alleged failure to provide documents when he himself has not complied with the procedure to obtain them. This application is therefore premature and amounts to an abuse of the court process. 23.On the 3rd Issue the Respondent contends that, the Applicant has not met the conditions for grant of Stay of Execution, that the principles governing the grant of a stay of execution pending appeal are well settled under Order 42 Rule 6(2) of the Civil Procedure Rules, which provides:“No order for stay of execution shall be made under sub rule (1) unless:-(a)The court is satisfied that substantial loss may result in the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant." 24.On the aspect substantial Loss, it is the Respondents contention that, the Applicant has merely stated that he will suffer irreparable prejudice. 25.Reliance is placed on the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, where the court held:“... the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss... The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal..." 26.That the Applicant has not demonstrated what substantial loss he will suffer other than the normal consequence of paying a lawful debt. The Respondent is a man of means, residing within the jurisdiction, and there is no evidence that he would be unable to refund the decretal sum should the appeal succeed. 27.On Security for costs, it is submitted that he Applicant has not offered or proposed any form of security for the due performance of the decree. That in Stephen Wesonga Makokha & another v Ignatius Opema Maliba [2021] eKLR, the court emphasized that an applicant must propose security that is attractive to the court to guarantee the decree. And the Applicant's failure to address this mandatory condition is fatal to his application for stay. 28.On aspect of Delay: While the application was filed on the same day as the judgment, the Respondent submits that, the Applicant is guilty of delay in prosecuting his right of appeal. He waited 18 days to request proceedings, and there is no evidence of follow-up. Delay is not just about filing the application, but about the diligence in pursuing the substantive appeal. 29.On the 4th issue as Whether the Applicant has established any grounds to warrant orders compelling the production of proceedings and judgment? The Respondent submits that such orders are unnecessary and presumptuous. 30.That the Small Claims Court is an independent court capable of managing its records. If the Applicant has followed the proper procedure by filing a formal request for proceedings under Order 42 Rule 2, the lower court registry is duty-bound to comply. 31.That, this court cannot assume that the lower court will neglect its duty. The Applicant's remedy, should the lower court fail to provide the proceedings, is to bring the delay to the attention of the trial court or to obtain a Certificate of Delay to exclude the time taken from the computation of time for filing an appeal under the proviso to Section 79G of the Civil Procedure Act. 32.In Conclusion the Respondent humbly submits that, the Applicant's Notice of Motion is a textbook example of a litigant attempting to use procedural technicalities to delay justice. That the Respondent lawfully obtained an interlocutory judgment in the Small Claims Court after the Applicant failed to fully participate in the subject matter apart from filing his response and written submissions. 33.That the Applicant is now attempting to halt the execution of that judgment on the pretext of a missing document, despite having taken no immediate steps to request that document. 34.That the Respondent is entitled under Article 50(1) of the Constitution to have his dispute resolved in a fair and public hearing before a court of law, and to enjoy the fruits of that judgment. The Applicant's delay tactics should not be rewarded and thus the Respondent humbly prays that the Court dismisses with costs the Applicant's Notice of Motion application dated 9th February 2026 in the alternative, the court orders the Applicant to deposit the full decretal sum in a joint interest-earning account as a condition for any stay of execution that may be granted. Analysis and Determination 35.The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others {2014} eKLR set out the considerations to guide the court in exercising its discretion in cases of this nature. It stated:i.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;ii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the courtiii.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;iv.Whether the application has been brought without undue delay; andv.Whether in certain cases, like election petitions, public interest should be a consideration for extending time." 36.In considering this Application the Applicant conveniently fails to avail the proceedings of the small claims court that would reveal that a summary judgment was entered and that the want of due diligence of the Applicant led to judgment. 37.The Appeal has been filed without leave and an application for leave being sought after the fact thereby triggering the courts jurisdiction to consider the provisions of Section 79B of the Civil Procedure Act provides that:-“Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree, part of a decree or order appealed against he may, notwithstanding section 79C, reject the appeal summarily 38.The Filed Appeal raises factual issues barred by law in considering Appeals from the Small claims court. 39.The Summary judgment was never Applied for and the Appeal was filed in abuse of the process of law. 40.The Parties are Elders in a church and the arguments over the 390,000/- is most unfortunate there exists the concept of constructive agreement. It is not about whether a piece of paper exists. 41.Further, under Section 79B of the Civil Procedure Act, this Court can only summarily reject an Appeal after the judge has perused it and finds that there are no ample reasons to interfere with the decision of the subordinate court. 42.I have read the entire impugned judgment and perused the Memorandum of Appeal dated 9th February 2026, ground (1) of Appeal raises matters of evidence running afoul to section 32 of the Small Claims Act while Grounds (2) and (3) are issues of fact. 43.The Application dated 9th February 2026 is dismissed. 44.I do find that the there is no sufficient ground for interfering with the decree, part of a decree or order appealed against, notwithstanding section 79C, I reject the appeal summarily. 45.I award costs to the RespondentIt is so ordered SIGNED, DATED AND DELIVERED AT BUSIAON THIS 24TH DAY OF JUNE 2026. _________________________ MOHOCHI S. M.PRESIDING JUDGE