Onepay Credit Ltd v Gitau (Civil Appeal E595 of 2024) [2026] KEHC 10805 (KLR) (Civ) (16 July 2026) (Judgment)

Onepay Credit Ltd v Gitau (Civil Appeal E595 of 2024) [2026] KEHC 10805 (KLR) (Civ) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10805 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E595 of 2024 D Mburu, J July 16, 2026 Between Onepay Credit Limited Appellant and Geoffrey Kiarie Gitau Respondent (Being an Appeal from the Ruling of Hon. D.S. Aswani (Adjudicator) delivered on 8th May 2024 in Milimani SCCCOMM No E1947 of 2023) Judgment Introduction 1.This appeal arises from the judgment of the Small Claims Court at Milimani (D.S. Aswani, Adjudicator) delivered on 8th May 2024 in SCCCOMM No. E1947 of 2023. 2.On 6th December 2021, the respondent entered a sale agreement for the purchase of KCN 128C, a Mazda Demio, with Charles Mathenge Karuga. He paid a deposit of Kshs. 205,000/= and sought financing for the balance of Kshs. 245,000/= from the appellant. The appellant’s terms were that the respondent would pay monthly installments of Kshs. 16,000/= for 24 months, later adjusted to monthly instalments of Kshs.19,000/- and Kshs. 3,000/- to cover insurance costs. Despite keeping up with his payments, the respondent was served with several demand notices claiming that he was in arrears and the appellant threatened to repossess the motor vehicle. The appellant subsequently recovered the motor vehicle on 20th June 2022 claiming arrears of Kshs. 105,057.11/-. 3.This prompted the respondent to file a suit dated 27th February 2023, claiming Kshs. 311,367/- [Kshs. 205,000 (deposit paid for the motor vehicle) + Kshs. 95,000/- (monthly instalments) + Kshs. 11,367/- (incidental costs)] being the monies paid towards the motor vehicle, general liquidated damages and costs of the suit. 4.However, the appellant did not participate in the proceedings, and subsequently, an ex-parte judgment was entered against it on 25th July 2023. By an application dated 12th January 2024, the appellant sought to have the ex-parte judgment set aside, execution be stayed and for leave to file a response to the claim. The respondent opposed the application claiming that all notices were properly served upon the appellant through its official email address. 5.The appellant has not attached the Ruling or Order the subject of these proceedings, which issue shall be addressed later in this Judgment. Be that as it may, according to the parties’ pleadings, on 15th February 2024, the trial court allowed the appellant’s application on condition that the appellant file its response within 7 days and pay throw-away cost of Kshs. 10,000/=. The matter was then fixed for mention to confirm compliance on 8th May 2025. However, as at this time, the appellant had not complied and the trial court accordingly vacated its earlier orders and reinstated the ex-parte judgment. The Appeal 6.Dissatisfied with the trial court’s decision, the appellant filed a Memorandum of Appeal dated 15th May 2024 raising various grounds of appeal, that the Learned Trial Magistrate erred in law and fact:i.In entering default judgment against the appellant whereas the money claimed of Kshs. 205,000/- had been paid to one Charles Mathenge Karuga who was never a party to the suit.ii.By failing to grant the appellant (sic) to file its response to the claim by close of business on 8th May 2024.iii.In failing to direct parties to file submissions where the court would have appreciated that a defaulting debtor can only recover any amounts in excess of the proceeds of sale after possession.iv.By failing to appreciate that the appellant had requested for a copy of the Ruling delivered on 7th March 2024 but the same was never uploaded on the Case Tracking System therefor the appellant was never aware of the court directions.v.By failing to direct the respondent to amend his statement of claim to add a necessary party being Charles Mathenge Kuria.vi.In relying on extraneous matters other than evidence adduced in court. 7.Consequently, the appellant urges this Court to allow the appeal, set aside the award of the trial court and for costs of the appeal. The Appellants’ Submissions 8.In support of their appeal, the appellant filed their submissions dated 13th October 2025. They submitted that when the impugned Ruling was delivered, the appellant’s advocate was absent and the impugned Ruling was not uploaded even as at 8th May 2025 when it came up for mention. 9.They crystallized 3 issues for determination:a.Whether the trial court erred in reinstating default judgment against the appellant despite the appellant having a defence that raised triable issues;b.Whether the appellant was denied the right to a fair hearing guaranteed under Article 50 of the Constitution of Kenya; andc.Whether the trial magistrate properly exercised judicial discretion in vacating its earlier orders. 10.On the first issue, the appellant argued that despite annexing a draft response to claim in its application which clearly raised triable issues, the trial court wrongly reinstated the ex-parte judgment contrary to the principles set out in Shah vs Mbogo [1967] EA 116. In its view, by reinstating the ex-parte judgment, the respondent unjustly enriched itself since part Kshs. 311,367/- included Kshs. 205,000/- which the respondent had paid directly to Charles Mathenge Karuga, the vendor of the subject motor vehicle. 11.On the second issue, despite requesting for the directions issued by the trial court with respect to its application, it was not forthcoming. In their view, the trial court ought to have considered whether failure to adhere to the directions was deliberate or occasioned by circumstances beyond the appellant’s control. What is more, the appellant argued that it should not be punished for its counsel’s mistakes. In this way, the appellant posited, the trial court violated its right to a fair trial under Article 50 of the Constitution. 12.On the final issue, it was the appellant’s case that failed to exercise its discretion judiciously and therefore, this Court has power to interfere with the same. The Respondent’s Submissions 13.The respondent opposed the appeal vide its submissions dated 10th July 2025, wherein it raises a single issue for determination: whether the trial court erred in vacating the ruling and setting aside the default judgment. 14.The respondent supported the trial court’s decision in vacating its orders since the appellant had failed, without good reason, to comply with its directions. In his view, such conduct is an abuse of the court process. Furthermore, the trial court operates under very strict timelines provided for under Section 34(1) of the Small Claims Act. Analysis And Determination 15.I have considered the appeal in light of the evidence on record and written submissions filed on behalf of the parties herein. 16.At the outset, it is worth reiterating that this Court’s jurisdiction is confined to matters of law as per Section 38 of the Small Claims Court Act. In which case, one glaring defect emerges. Looking at the appellant’s memorandum of appeal, the appellant implores this Court to make determinations on both factual and legal findings. However, this Court lacks jurisdiction to consider any factual determinations. 17.However, even without considering the specific grounds of appeal that fall short of the above, I note an even more fatal defect. The appellant has not attached the order and ruling, the subject of this appeal. Is this omission fatal to the appeal? 18.Section 65(1)(b) of the Civil Procedure Act provides that an appeal shall lie for any original decree or part thereof of a subordinate court. Order 42 Rule 13 (4) of the Civil Procedure Rules, on its part, lists the documents that must be filed before an appeal can go for hearing. This includes the judgment, order or decree appeal from which is a mandatory document. Therefore, a decree or order must be attached to the record of appeal, as this is what forms the basis of the appeal. Therefore, a record of appeal that does not have the decree or order the subject of the appeal is an incomplete record. The Supreme Court has clarified in Bwana vs Bonaya & 2 Others (Election Petition 15 of 2014) [2015] KESC 8 (KLR) that an incomplete record of appeal renders the entire appeal defective. 19.One may be tempted to argue that this is a technicality for which Article 159(1)(d) of the Constitution can cure. However, the law is settled in this respect. Failure to attach the order, as is the case herein, is a jurisdictional issue that cannot simply be wished away. In Chege vs Suleiman [1988] eKLR, the Court of Appeal held that:“But we concur positively in the submission of Mr. Lakha that this is not a procedural but a jurisdictional point. Those holdings were founded on a proper interpretation of Section 66 of the Civil Procedure Act which confers a right of appeal from the High Court to this Court from “decrees and orders of the High Court”. And those holdings were predicated on the fact that since the appeal could only lie against a decree or order, no competent appeal could be brought unless those decrees were formally extracted as the basis of the appeal.” 20.This position has been reiterated in a plethora of decisions. Lucas Otieno Masaye vs Lucia Olewe Kidi [2022] KEELC 489 9KLR); Salama Beach Hotel Limited & 4 Others vs Kenyariri & Associates Advocates & 4 Others [2016] KECA 447 (KLR); Constantine Ngiracha Gibai vs Peter Boke Nyamohanga [2020] KEHC 79 (KLR); Mungai & Another vs Osore (Civil Appal E443 of 2021) [2024] KEHC 9309 (KLR) among others. 21.The appellant, having filed the instant appeal on or around 15th May 2024, has had more than enough time to regularize the appeal. It failed to take opportunity to do so, including filing an application for leave to file a supplementary record of appeal. 22.I believe I have said more than enough to elaborate why the instant appeal is fatally incompetent. Orders 23.Accordingly, and for the reasons set out above, the instant appeal is incompetent and is struck out with costs to the respondent. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JULY 2026.DAVID MBURUJUDGEIn the presence of:Mr. for the AppellantMr. for the RespondentKalondu - Court Assistant