[2022] KEHC 13681 (KLR)

Omundi v Lama Fresh Produce Limited (Civil Appeal E040 of 2022) [2022] KEHC 13681 (KLR) (Civ) (14 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13681 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil

Civil Appeal E040 of 2022

DAS Majanja, J

October 14, 2022

Between

Frankline Omundi

Appellant

and

Lama Fresh Produce Limited

Respondent

(Being an appeal from the Judgment and Decree of Hon. V. M. Mochache, RM/Adjudicator delivered 18th March 2022 at the Small Claims Court, Milimani in SCC COMM E488 of 2021)

Judgment

1. This is an appeal from the Judgment of the Small Claims Court dated 18th March 2022 where the Court dismissed the Appellant’s claim of Kshs. 143,000. 00 being outstanding payment for goods sold and delivered to the Respondent and entered judgment for the Respondent on the Counterclaim for Kshs. 73,000. 00 being overpayment by the Respondent to the Appellant.

2. The Appellant’s claim as set out in his Statement of Claim dated 12th October 2021 was for fruits worth Kshs. 1,655,570. 00 sold and delivered to the Respondent between 14th February 2021 and 27th February 2021 for which the Respondent paid Kshs. 1,512,530. 00 leaving a balance of Kshs. 143,040. 00 which the Appellant claimed.

3. In its Response to the Statement of Claim and Counterclaim dated 8th December 2021, the Respondent denied that it owed the amount claimed. It stated that it had paid the Appellant for all the goods delivered. It further stated that the Appellant owed it Kshs. 73,000. 00 which was paid in excess and which it now claimed.

4. The Appellant testified on his own behalf while the Respondent called its Accounts Officer, Salome Nyambura Muturi (RW 1) as its witness. The parties also filed written submissions.

5. In the Judgment, the Adjudicator held that on the basis of Mpesa Statements and Equity Bank Statements, the Appellant was paid a total of Kshs. 1,712,530. 00 which was exclusive of Kshs. 100,000. 00 paid in cash as evidenced by a petty cash voucher dated 20th February 2021. Although the Appellant contested admission into evidence of the petty cash voucher, the Adjudicator held that it was valid as it was signed by the Appellant and witnessed by RW 1. Having observed the Appellant’s demenour during the hearing, the Adjudicator doubted his credibility and testimony. Since the Mpesa and bank statements were not controverted, the court rejected the Appellant’s claim and awarded the Respondent the pleaded sum in its counterclaim although the excess amount, according to the court, was Kshs. 156,960. 00.

6. In the Memorandum of Appeal dated 4th April 2022, the Appellant set out the following grounds of appeal upon which it seeks to set aside the decision of the Subordinate Court and for judgment in its favour:1. The learned trial magistrate erred in law and in fact in failing to properly evaluate the entire evidence and law as required by the law when dealing with the matter on the first instance and hence arrived at a wrong decision.

2. The learned trial magistrate erred in law and in fact in dismissing the Plaintiff/Appellant’s suit and allowing the counterclaim in blatant disregard of the evidence on record and the Plaintiff’s counsel’s submissions and totally failing to consider the said evidence and submissions.

3. The learned trial magistrate erred in law and in fact in making a finding that is contrary to the available evidence tendered in court and thereby made a wrong and unlawful decision.

4. The learned trial magistrate erred in law and in fact in allowing as evidence a document which was unlawfully filed contrary to the law and relying on the same despite the fact that its probative value was questionable and generally fabricated to answer to the Appellant’s water tight claim.

5. The learned trial magistrate erred in law and fact in awarding the sum of Kshs. 73,000. 00 as counter-claim to the Respondent against the weight of evidence and thereby arrived at (an) unlawful decision.

6. The learned trial magistrate was totally biased against the Plaintiff and gave Judgment against the overwhelming weight of evidence tendered by the Plaintiff/Appellant.

7. It must be recalled that the jurisdiction of this court in hearing appeals from the Small Claims Court is limited in terms of section 38(1) of the Small Claims Court Act, 2016 which provides that, “A person aggrieved by decision or an order of the Court may appeal against that decision or order to the High Court on matters of law”.

8. In dealing with matters of law, the Court is not permitted to re-evaluate the entire record of evidence and come to its own conclusion as required in ordinary appeals (seeSelle and Another v Associated Motor Boat Co., Ltd and Others [1968] EA 123). In Charles Kipkoech Leting v Express (K) Ltd & AnotherNKU CA Civil Appeal No. 40 of 2016 [2018] eKLR, the Court of Appeal in relation to its jurisdiction on second appeals to determine matters of law observed as follows:This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina versus Mugiria [1983] KLR 78, Kenya Breweries Ltd versus Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another versus Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. See also the English case of Martin versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 where in, it was held inter alia that, where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court (s) and resist the temptation to treat findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.

9. The case before the Subordinate Court was whether the goods sold or delivered were paid for since delivery of the goods was not disputed. The Adjudicator considered the Mpesa, the bank statements from Equity Bank and the voucher. Although the Appellant contested the voucher, the Adjudicator came to the conclusion that it was valid. The Adjudicator also made a specific finding on the Appellant’s credibility.

10. The grounds of appeals I have outlined at paragraph 6 above demonstrate that the Appellant wants this Court to re-evaluate the evidence and reach a contrary conclusion. The weight, probative value and credibility of the evidence are all matters of fact and are within the province of the trial court to consider. This court is not permitted by statute to venture into those matters unless it is shown that the findings are perverse or unsupported by the evidence. The totality of the evidence and conclusions reached shows that any reasonable tribunal would have reached a similar decision given the evidence on record.

11. The appeal is dismissed with costs to the Respondent assessed at Kshs. 20,000. 00.

DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF OCTOBER 2022. D. S. MAJANJAJUDGECourt Assistant: Mr M. Onyango.Mogire and Company Advocates for the AppellantGithui and Partners Advocates for the Respondent.