[2023] KEHC 23644 (KLR)

Palms Resort Limited v Qureshi & 2 others (Civil Appeal E167 of 2022) [2023] KEHC 23644 (KLR) (16 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23644 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E167 of 2022

DKN Magare, J

October 16, 2023

Between

Palms Resort Limited

Appellant

and

Mohammed Mateen Qureshi

1st Respondent

Kieran Mwash Mwazo

2nd Respondent

Margaret Njeri Ndungu

3rd Respondent

Judgment

1. This is an appeal from the judgment and decree of the Honourable Viola Muthoni given in 22/9/2022 in Mombasa Small Claims Case No. SCCC E057 of 2022. This matter must have escaped the court’s attention as it is our desire that small claims be concluded as soon as practicable, in order to maintain the spirit of the Small Claims Court. This is in line to the vision to have these matters expedited and moved out of the system quickly.

2. The Appellant was the 3rd Respondent in the Small Claims Court. The 1st Respondent described them as a company. However, there is no relationship set out in the pleadings relation to any contract or debt due. It is in the list of documents that their consent as the head lessor comes in.

3. The matter was heard in the Small Claims Court, wherein judgment was entered for the 1st Respondent against the Appellant for Kshs. 992, 916/- costs and interest. The suit against the 2nd and 3rd Respondents herein was dismissed to be borne by the 1st Respondent.

4. After the judgment the Appellant decide to have a prolixious 12-paragraph Memorandum of Appeal. The majority of the issues raised are issues of fact. Only 2 issues of law are raised, that is: -a.The cause of action against the Appellant.b.Fidelity to pleadings.

5. As I was reading the huge Record of Appeal, I realized that pleadings can be leaner and to the point. I have perused the 12- Paragraph Memorandum of Appeal. It is prolixious, repetitive, and unseemly. The proper way of filing an Appeal is to file a concise Memorandum of Appeal without arguments, cavil or evidence. The rest of the King’s language should be left to submissions and academia. Order 42 Rule, 1 provides as doth: -“1. Form of appeal –1. Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.2. The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”

6. The Court of Appeal had this to say in regard to Rule 86 (which is pari materia with Order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of Rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

7. Hitherto, in the case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the Court of Appeal observed that: -“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”

Jurisdiction 8. The court must satisfy itself that it has jurisdiction to hear a matters. Otherwise they labour in vain those who build a house with no foundation. There cannot be nothing placed on nothing. In Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169 Lord Denning, MR, while delivering the opinion of the Privy Council at page 1172 (1) said;“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

9. In other words, jurisdiction is everything. The court either has it or it does not have it. In the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Justice Nyarangi, JA, as he then was, posited succinctly as follows: -“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”

10. Appeals from the small claims court are set out in section 38 of the Small Claims Court Act, which provides as doth: -“38. (1)A person aggrieved by the decision or an order Appeals. of the Court may appeal against that decision or order to the High Court on matters of law.

3. An appeal from any decision or order referred to in subsection (1) shall be final.

11. I have perused the Memorandum of Appeal. Some of the issues raised are issues of fact. This court has no jurisdiction to raise issues of fact. Indeed, for Small Claims Court, even raising issues on the Evidence Act, is futile as the court is not bound by rules of evidence. Section 32 of the Small Claims Court act provides as doth: -“32. (1)The Court shall not be bound wholly by the Exclusion of strict Rules of evidence. Rules of evidence2. Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence.(2)Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence.(3)Evidence tendered to the Court by or on behalf of a party to any proceedings may not be given on oath but that Court may, at any stage of the proceedings, require that such evidence or any part thereof be given on oath whether orally or in writing.(4)The Court may, on its own initiative, seek and receive such other evidence and make such other investigations and inquiries as it may require.(5)All evidence and information received and ascertained by the Court under subsection (3) shall be disclosed to every party.(6)For the purposes of subsection (2), an Adjudicator is empowered to administer an oath.(7)An Adjudicator may require any written evidence given in the proceedings before the Court to be verified by statutory declaration.

12. The effect of the foregoing is that unless there is gross breach of rules of natural justice, an appeal over evidence is an appeal on fact. The only two issues were raised herein. This being an appeal from that court, this court has jurisdiction to hear and determine the matter from small claims. Even where the court below assumes jurisdiction on matters it should have not deal with, this court has jurisdiction to hear and then determine that the court had no jurisdiction to hear the primary matter. It is part of the doctrine of separability. It has its roots in the concept of competence-competence in arbitration.

13. In this case once the court has jurisdiction over the subject matter, the persons and the territorial jurisdiction, then the court has a duty to exercise jurisdiction. These three jurisdictional parameters are known as jurisdiction ratione materiae, ratione personae and ratione temproris.

14. The doctrine of separability deals with the ability of the court, to declare that it has no jurisdiction but have a right to hear and determine whether it has jurisdiction. It is important that when hearing matters, the court below must be satisfied with its own jurisdiction.

15. Where there is no jurisdiction, then the court must down its tools. In the Matter of Advisory Opinions of the Court under Article 163 of the Constitution (Constitutional Application No. 2 of 2011 at para. 30), where the Supreme Court stated:“...a court may not arrogate to itself jurisdiction through the craft of interpretation or by way of endeavours to discern or interpret the intentions of Parliament, where the legislation is clear and there is no ambiguity.”

16. The appeal to this court is on points of law. This is equivalent to the court of appeal’s duty as a second appellate court. In Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR, the Court of Appeal stated 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.”

17. In Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR, the court stated as doth: -“4. Although the phrase ‘a matter of law’ has not been defined by the Elections Act, it has been held in Timamy Issa Abdalla Vs Swaleh Salim Swaleh Imu & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, Makhandia & Sichale, JJA) of 13. 01. 2014 that a decision is erroneous in law if it is one to which no court could reasonably come to, citing Bracegirdle vs Oxney (1947) 1 All ER 126. See also Khatib Abdalla Mwashetani Vs Gedion Mwangangi Wambua & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court of Appeal), (Okwengu, M'inoti & Sichale, JJA) of 23. 01. 2014 following AG vs David Marakaru (1960) EA 484.

18. In Peter Gichuki King'ara Vs Iebc & 2 Others, Nyeri Civil Appeal No. 31 Of 2013 (Court of Appeal) (Visram, Koome & Odek, JJA) Of 13. 02. 2014, The Court of Appeal was of the view that: -“it was held that it is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanor – is an issue of law.”

19. The jurisdiction of the Small Claims Court is circumscribed. There is no room for playing outside Section 12 of the Small Claims Court Act. The same provides as doth: -“12. Nature of claims and pecuniary jurisdiction (1) Subject to this Act, the Rules and any other law, the Court has jurisdiction to determine any civil claim relating to—

(a)a contract for sale and supply of goods or services;(b)a contract relating to money held and received;(c)liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property;(d)compensation for personal injuries; and(e)set-off and counterclaim under any contract.(2)Without prejudice to the generality of subsection (1), the Court may exercise any other civil jurisdiction as may be conferred under any other written law.(3)The pecuniary jurisdiction of the Court shall be limited to one million shillings.(4)Without prejudice to subsection (3), the Chief Justice may determine by notice in the Gazette such other pecuniary jurisdiction of the Court as the Chief Justice thinks fit.

20. Under Section 13 of the Act, the court notes that there are certain exclusions to the jurisdiction of the court. It also provides for transfer of claims by a higher court to the small claims court subject to section 12(3), that is the limit of pecuniary jurisdiction for not more than 1,000,000/=.

21. The said Section 13 provides as follows; -“13. Exclusion of jurisdiction

(1)If a claim has been lodged with the Court, no proceedings relating to the same course of action shall be brought before any other Court except where the—(a)proceedings before that other Court were commenced before the claim was lodged with the Small Claims Court; or(b)claim before the other Court has been withdrawn.(2)A claim shall not be brought before the Court if proceedings relating to that claim are pending in or have been heard and determined by any other Court.(3)Subject to section 12(3), a higher court may transfer a claim to a Small Claims Court.(4)For the purposes of this section, a claim is deemed to have been lodged with the Court in any case where section 23 has been complied with.(5)A claim shall not be brought before the Court if the cause of action is founded upon defamation, libel, slander, malicious prosecution or is upon a dispute over a title to or possession of land, or employment and labour relations.

22. The long title of the Small Claims Court, no 2 of 2016 is said to be: -“An Act of Parliament to establish a Small Claims Court; to provide for the jurisdiction and procedures of the Court and for connected purposes.”

23. The guiding principles objective of the Act is as set out in section 3 of the Act are: -Guiding principles(1)In exercise of its jurisdiction under this Act, the Court shall be guided by the principles of judicial authority prescribed under Article 159(2) of the Constitution. (2) The parties and their duly authorized representatives, as the case may be, shall assist the Court to facilitate the observance of the guiding principles set out in this section, to that effect, to participate in the proceedings of the Court and to comply with directions and orders of that Court.(3)Without prejudice to the generality of subsection (1) the Court shall adopt such procedures as the Court deems appropriate to ensure—(a)the timely disposal of all proceedings before the Court using the least expensive method;(b)equal opportunity to access judicial services under this Act;(c)fairness of process; and (d) simplicity of procedure.

24. In Biosystems Consultants v Nyali Links Arcade (Civil Appeal E185 of 2023) [2023] KEHC 21068 (KLR) (31 July 2023) (Ruling), I had occasion to address the issue of the jurisdiction of the court which is set out in section 12 of the small claims court Act. The same provides as doth: -“Nature of claims and pecuniary jurisdiction (1) Subject to this Act, the Rules and any other law, the Court has jurisdiction to determine any civil claim relating to—(a)a contract for sale and supply of goods or services;(b)a contract relating to money held and received;(c)liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property;(d)compensation for personal injuries; and (e) set-off and counterclaim under any contract.(2)Without prejudice to the generality of subsection (1), the Court may exercise any other civil jurisdiction as may be conferred under any other written law.(3)The pecuniary jurisdiction of the Court shall be limited to one million shillings.(4)Without prejudice to subsection (3), the Chief Justice may determine by notice in the Gazette such other pecuniary jurisdiction of the Court as the Chief Justice thinks fit.

25. Before we proceed, I note that the disputes over contract relate only to contract relating to money held and received. The current dispute relates to the liability of the head lessor to refund money held in a sinking fund. The fund abuts and moves with land. The same relates according to the evidence in court to the land. The alleged refund was arising because of the change of ownership of land. The fund is said to be for purpose of dealing with deficits in service charge. This makes it appurtenant to land.

26. The head leasor or even the management company has no role how lessors behave on their land. The duty of the head lessor under the land act is to give consent for transfer. He is not party to any sale agreement. Ipso facto, he does not have a contract with the 1st Respondent. All the parties indicated who the owner of the contract was.

27. At page 57, it was indicated that the funds are held to maintain the resort. They cannot be released. They become profit apondre for the land. When selling land, part of the burdens that go with the land are all outgoings and rates, including service charge.

28. The amount is actually not the purchaser’s money but part of the management company’s money. There was nothing for the company to refund. The Respondents has a contract inter se. They needed to deal with premiums over the land. It could be even that rates were left unpaid. It is not the head lessor’s duty to pay the same. This settles the first issue in favour of the Appellant. There was no money had and received.

29. This then brings me to the second and last issue. Was this claim properly before the court?

30. The first is the subject matter of the Appeal. The subject matter is a sub-lease over some property where the Appellant is the head leasor. To be able to determine the question whether there is a refund, one has to interpret the lease. This is not in the province of the Small Claims Court. It is a question of rights of a property.

31. Section of the Environment and Land Court Act, provides as follows: -“13. Jurisdiction of the Court

(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes―(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.

32. The issue at hand is related private land and contracts, choses in action or other instruments granting any enforceable interests in land. This is expressly excluded from the Small Claims Court. The court did not have jurisdiction to deal with the subject matter. The court lacked jurisdiction over the subject matter, that is, jurisdiction ratione materiae.

33. Lastly, the agreement was between the Respondents. There was no agreement with the Appellant. A party cannot sue or be sued in respect of an agreement to which he is not a party. The Appellant was not party to the dispute and agreement and is under no obligation to refund anything to any party.

34. Lastly, there are no pleadings connecting the payment of money to the plaintiff and the refund thereof. I note that the 1st Respondent relied on alleged knowledge. Parties are only liable to the extent of their legal obligations and not what they know.

35. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima stated as doth; -“11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -

“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

36. In the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, Malawi Supreme Court of Appeal stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled “The Present Importance of Pleadings” published in [1960] Current Legal Problems at p 174 whereof the learned author posited that: -“As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”

37. The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”

38. In Mark Otanga Otiende v Dennis Oduor Aduol [2021] eKLR, the court, R.E. Aburili, stated as doth: -“77. In Civil Appeal 206 of 2008 City Council of Nairobi & Wilfred Kamau Githua T/A Githua Associates v Nairobi City Water & Sewarage Co Ltd (supra) on privity of contract and contractual assignment it was stated:

“The doctrine of privity of contract is that, as a general rule, at Common Law, a contract cannot confer rights or impose obligations on strangers to it that is persons who are not parties to it. The parties to a contract are those persons who reach an agreement and, whilst it may be clear in a simple case who these parties are, it may not be so obvious where there are several contracts, or several parties or both. For example in the case of multilateral contracts; collateral contracts, irrevocable credits, contracts made on the basis of memorandum & articles of a Company; collective agreements, contracts with unincorporated association and mortgages, surveys and valuations…..”[emphasis added] 87. In the City Council of Nairobi vs Wilfred Kamau Githua & anor (supra) the court further found that:

“In the circumstances of this case, the 2nd Respondent was a 3rd Party to the contract. The Appellant and 1St Respondent failed to identify any agreement or contract by which the 2nd Respondent, undertook to take over the Appellant’s liabilities. We therefore find there is no privity of contract between 1st Respondent & 2nd Respondent.” 79. The Court found no privity of contract between the Plaintiff and the Defendant, and that therefore no work or services was provided by Plaintiff to Defendant, no goods supplied, no evidence of contractual relations. In David Kamau Njoroge (Deceased) v Savings and Loan (K) Ltd [2006] eKLR, the Court held: -

“It is now trite law that a suit instituted by a person who has no capacity or locus to institute it, is a non-suit such a suit is null and void from the beginning”. 80. From the foregoing, it is clear that the trial Court was in serious error of omission when it failed to first inquire into the locus standi of the Respondent to sue and be sued on a contract which he was not party to. Being the other contracting party to that contract, the Multiplex Enterprises Ltd and not its director the Respondent herein would be the party with a legal standing to sue or be sued on the contract dated 17th November, 2018. ”

39. I have said enough to show that the 1st respondent’s case was cooked from the word go. As a result I have come to the inevitable conclusion that the court had no jurisdiction over the subject matter. Further, the court ignored the doctrine of privity of contract which resulted in the Appellant being held liable for a contract they were not party to. Lastly, in any event the 1st Respondent was unable to prove their claim as pleaded. Parties cannot walk out their pleadings.

40. Consequently, I allow the appeal set aside the Judgment and dismiss the 1st Respondent’s case in the Small Claims Court against the Appellant in limine with costs of Ksh 90,000/=. The Appellant shall have costs of Ksh 60,000 in the Small Claims Court.

Determination 41. I make the following orders: -a. The Appeal is allowed with costs of Ksh 90,000/=b. The suit in the Small Claim Court against the Appellant is dismissed in limine.c. The first Respondent to pay costs of Kshs. 60,000/= being the costs in the Small Claims Case.d. The 2nd and 3rd Respondents did not participate in the Appeal and as such they shall bear their own costs.

DATED, DELIVERED AND SIGNED IN MOMBASA ON THE 16TH DAY OF OCTOBER 2023. KIZITO MAGAREJUDGEIn the presence of:Mr. Ondego for the AppellantIman for the RespondentCourt Assistant - Brian