https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9976

Primary Pictures Ltd v Kramer (Civil Appeal E1388 of 2024) [2026] KEHC 9976 (KLR) (Civ) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 9976 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1388 of 2024 AC Mrima, J July 9, 2026 Between Primary Pictures Limited Appellant and Christian Kramer Respondent (Being an appeal from the Judgment of Hon. B Akinyi (Adjudicator) in Nairobi Small Claims Court Civil Suit No. E4791/2023 delivered on 7th June 2024) Judgment Background: 1.The Respondent herein, Christian Kramer, lodged a Statement of Claim dated 16th June 2023 against the Appellant, Primary Pictures Limited. He sought the sum of Kshs. 678,403/- for professional film editing services rendered in respect of a Netflix trailer. 2.The Appellant denied the existence of any contract between the parties. It maintained that it was a stranger to the averments and that no breach or loss had occurred. 3.Following a full hearing where both parties testified and adduced documentary evidence, including WhatsApp communications, the trial Court delivered its judgment on 7th June 2024. The Hon. Adjudicator held that an enforceable contract existed by implication of the parties’ conduct and entered judgment in favour of the Respondent for the claimed sum, alongside costs and interest. 4.It was that decision that prompted this appeal which was disposed of by way of written submissions. The Appeal: 5.Aggrieved by the trial Court’s decision, the Appellant lodged the present appeal vide a Memorandum of Appeal dated 29th November 2024. It proposed the following grounds: -1.That the Learned Magistrate of the superior court erred in law and in fact by failing to appreciate that there was no contract.2.That the Learned Magistrate erred in fact and in law by inferring a contract.3.That the learned Magistrate erred in fact and in law by holding that consider and appreciate the documents and evidence provided by the Appellants in support of its case.4.That the Learned Trial Magistrate erred in law and in fact by ignoring and/or failing to consider the testimony and evidence by the Appellant and wholly placing reliance on the evidence and material availed by the Respondent hence arriving at a decision that was manifestly unfair.5.That the Learned Trial Magistrate erred in law and in fact by failing to appreciate and/or consider the submissions and arguments made by the Appellant thereby exercising her discretion on the wrong legal principles thus arriving at an erroneous decision.6.That the Learned Trail magistrate erred in law in failing to appreciate the facts and circumstances of the matter before court and therefore exercised his discretion on wrong principles thereby arriving at a wrong decision.7.That the Trail magistrate erred in fact and in law since the ruling was tantamount to condemning the Appellant unheard as the Appellants were denied an opportunity to make their case.8.That the learned Trail magistrate erred in law by awarding costs to the Respondent. The Submissions: 6.The Appellant articulated its arguments in submissions dated 1st September 2025 and Supplementary Submissions dated 18th December 2025. The Appellant submitted that the trial Court erroneously inferred a contractual relationship based on assumptions and informal interactions, failing to appreciate that no formal agreement, written correspondence, or credible testimony evidenced an offer and subsequent acceptance. The Appellant argued that the foundational principles of contract law demand strict proof of offer, acceptance, consideration, and the intention to create legal relations. It anchored its case on the English Court of Appeal decision in Carlill -vs- Carbolic Smoke Ball Co. [1893] 1 QB 256. 7.The Appellant further claimed that the Respondent failed to discharge the burden of proof stipulated under Section 107 of the Evidence Act, as no substantive documentary evidence was provided to demonstrate the veracity of the complex work claimed. The Appellant submitted that the works tendered by the Respondent were merely voluntary samples submitted for vetting in an interview-like scenario, completely devoid of any mutual intention to create legal relations. Drawing from the precedent in Rosaline Mary Kahumbu -vs- National Bank of Kenya Ltd [2014] eKLR, the Appellant contended that failure to satisfy the evidentiary truth threshold dictates that an unmeritorious claim stands to be allowed. Consequently, the Appellant argued that the trial Curt unjustly converted a prospective employment evaluation into a billable commercial transaction, occasioning a miscarriage of justice. 8.The Appellant prayed that the appeal be allowed and the Statement of Claim be dismissed with costs. The Respondent’s case: 9.Christian Kramer opposed the appeal through Submissions dated 17th September 2025. It was his case that the trial Court correctly found a valid and binding contract between the parties, established overwhelmingly through phone calls, WhatsApp chats, and the subsequent performance and conduct of the parties. 10.It was the Respondent’s case that after he successfully edited and delivered the trailer, which the Appellant utilized to secure funding from Netflix, the Appellant acted deceitfully by awarding the promised substantive editing jobs to other local editors behind his back and failing to remunerate him at the agreed market rate. 11.To buttress the argument that a valid contract can be formed electronically without traditional written formalities, the Respondent relied on the High Court decision in Jaevee Homes Limited -vs- Mr Steve Fincham [2025] EWHC 942, to advance the argument that the exchange of WhatsApp messages without formal conditions constitutes a concluded and binding agreement. 12.Further, the Respondent cited the decision in Otieno -vs- Ochola (Civil Appeal E001 of 2024) [2025] KEHC 8561 (KLR), to submit that informal communications paired with the execution of the agreed task confirm that all requisite ingredients of a contract are in place. 13.The Respondent urged the Court to dismiss the appeal with costs. Analysis and Determination: 14.Having reviewed the pleadings, the trial Court record and the rival submissions, this Court isolates the main overarching issue for determination to be whether the trial Court erred in law by inferring and finding that a valid and enforceable contract existed between the parties. 15.Suffice to state that this Court’s jurisdiction on appeals from the Small Claims Court is limited to matters of law as provided for under Section 38 of the Small Claims Court Act [Cap.10A] of the Laws of Kenya and that the decision thereof is final. 16.Whereas there has been no universally accepted definition of the term ‘matters of law’, there has been some working definitions thereto. The term ‘point of law’ may also be referred to as ‘matter of law’. The Black’s Law Dictionary defines ‘a matter of fact’ and ‘a matter of law’ as follows: -Matter of fact: A matter involving a judicial inquiry into the truth of alleged facts and Matter of law: A matter involving a judicial inquiry into the applicable law. 17.Lord Denning, J in Bracegirdle vs. Oxley (2) [1947] 1 ALL E.R. 126 at p 130 in espousing the two terms had the following to say: -…. The question whether a determination by a tribunal is a determination in point of fact or in point of law frequently occurs. On such a question there is one distinction that must always be kept in mind, namely, the distinction between primary facts and conclusions from those facts. Primary facts are facts which are observed by the witnesses and proved by testimony; conclusions from those facts are inferences deducted by a process of reasoning from them. The determination of primary facts is always a question of fact. It is essentially a matter for the tribunal who sees the witnesses to assess their credibility and to decide the primary facts which depend on them. The conclusions from those facts are sometimes conclusions of fact and sometimes conclusions of law. In a case under the Road Traffic Act, 1930, s. 11, the question whether a speed is dangerous is a question of degree and a conclusion on a question of degree is a conclusion of fact. The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts, and that is the case here. The conclusion drawn by these justices from the primary facts, was not one that could reasonably be drawn from them. 18.Drawing from the above, the Court of Appeal in Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR sated as under: -…. That reasoning has been adopted in this jurisdiction. In A.G. Vs. DAVID MURAKARU [1960] EA 484, for instance, Chief Justice Ronald Sinclair sitting with Rudd J. adverted to the factual foundations of legal questions by stating that an appellate court restricted to determining questions of law may yet quite properly interfere with the conclusion of a lower court if the same is erroneous in point of law. This is the case where that lower court arrives at a conclusion on the primary facts that it could not reasonably come to. Such a conclusion or decision becomes an error in point of law. See also PATEL vs. UGANDA [1966] EA 311 and SHAH Vs. AGUTO [1970] EA 263. 19.Earlier, the Court of Appeal in M’riungu and Others -vs- R [1982-88] 1 KAR 360 observed thus: -…. We would agree with the views expressed in the English case of Martin v Glyneed Distributors Ltd (t/a MBS Fastenings) [1983] 1 CR 511 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 as holdings of law or mixed findings of fact and law, and, it should not interfere with the decision of the trial of 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 law. 20.Later, the Court of Appeal in Charles Kipkoech Leting -vs- Express (K) Ltd & another [2018] eKLR discussed what entails matters of laws as the Court considered its role as a second appellate Court. It observed thus;…. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina -vs- Mugiria [1983] KLR 78, Kenya Breweries Ltd v Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & another v 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….. 21.And, in Peter Gichuki King'ara vs. IEBC & 2 others, Nyeri Civil Appeal No. 31 of 2013, Court of Appeal held that a decision challenged on the basis of wrongful exercise of discretion raises a point of law. [See also Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR]. 22.From the foregoing, an appeal on matters of law calls upon the appellate Court to steer clear of findings of fact derived from primary evidence and to also restrain itself from treating findings of fact as holdings of law or mixed findings of fact and law unless the findings are so perverse as to defeat the object of justice. 23.In discharging its appellate role in matters from the Small Claims Court, the High Court should remain alive to the rationale behind the establishment of the Small Claims Court as a special and unique Court which is different from the mainstream civil Courts. It must always be remembered that the focal point of the Small Claims Courts is expeditious disposal of cases and that is why the Court is not bound by the strict rules of evidence [Section 32 of the Small Claims Court Act] and further the Court has power to control of its own procedure in determining any claim before it subject to regard to the principles of natural justice [Section 17 of the Act]. The High Court, therefore, is duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses in view of the various decisions referred to above. 24.Having said so and upon careful perusal of the Memorandum of Appeal, it leaves no doubt that the grounds are to largely factual. To the extent that the Appellant invites this Court to embark on a fresh re-evaluation of the factual weight of the evidence, such as whether the submitted film was complex enough or whether it was an interview test, this Court’s hands are tied by the statutory constriction. The trial Court’s factual findings can only be disturbed if they are so perverse as to amount to an error of law, or if the trial court misapplied core legal principles. Therefore, the crux of the Appellant’s legal grievance is that informal WhatsApp messages and the editing samples cannot satisfy the rigid legal prerequisites of contract formation. 25.However, the trial Court properly grounded its reasoning on the legal principles governing implied contracts. It correctly cited the decision in Ali Abdi Mohammed -vs- Kenya Shell & Company Limited [2017] KECA 590 (KLR) and Rose and Frank Co. -vs- J R Crompton & Bros Ltd (1923) 2 KB, to establish that the intention to create legal obligations can be mutually communicated expressly or impliedly through the conduct of the parties. 26.For clarity, the Court of Appeal in Ali Abdi Mohamed v Kenya Shell & Company Limited case [supra] in citing its own decision in Abdulkadir Shariff Abdirahim & another -vs- Awo Shariff Mohammed T/A A.S. Mohammed Investments [2014] eKLR, stated that not all contracts must be in writing. It was observed;… There is no general rule of law that all agreements must be in writing. The numerous advantages of a written agreement notwithstanding, all that the law requires is that certain specific agreements must be in writing or witnessed by some written note or memorandum. Section 3(1) of the Law of Contract Act is one such provision. 27.Subsequently, the Court made the following remarks;…. It therefore follows that a contract can exist where no words have been used but where it can be inferred from the conduct of the parties that a contract has been concluded. See Timoney and King v King 1920 AD 133 at 141. In the circumstances of the instant case, there existed an enforceable contract between the parties by reason of Conduct. Indeed it was not disputed by the respondent that it supplied petroleum products to the appellant at a specific amount per litre and for a certain period of time….. 28.Drawing from the above, the Respondent’s reliance on the precedent in Jaevee Homes Limited -vs- Mr Steve Fincham case [supra] and Otieno -vs- Ochola case [supra] accurately reinforces the legal position that binding contractual relations can be seamlessly formed through digital communication platforms. 29.The trial Court found as a factual certainty that the Appellant initiated a negotiation, the Respondent submitted the edited trailer, and the Appellant approved the final version. Analytically, this sequence unequivocally fulfils the legal thresholds of offer, acceptance, and consideration. The Appellant’s reliance on Carlill -vs- Carbolic Smoke Ball Co. case [supra] does not operate to invalidate contracts formed by conduct or electronic correspondence; rather, it affirms that performance of requested terms constitutes valid acceptance. 30.Therefore, this Court finds that the trial Court exercised its discretion upon the correct legal principles. Inferring the existence of a contract from the undisputed WhatsApp exchanges and the delivery of the completed trailer was a sound and legally permissible application of contract law to the facts before her. Consequently, no error of law has been demonstrated by the Appellant to warrant this Court’s interference under Section 38(1) of the Small Claims Court Act. Disposition: 31.Having found no legal misdirection by the trial Court, the appeal ought to fail and the following final orders hereby issue: -(a)The appeal is hereby dismissed in its entirety.(b)The Judgment in Nairobi [Milimani] Small Claims Court Civil Suit No. E4791 of 2023 delivered on 7th June 2024 is hereby upheld.(c)Costs of this appeal to the Respondent.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF JULY, 2026.A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Mr. Katee, Learned Counsel for the Respondent.Mr. Nyamwari, Learned Counsel for the Appellant.Amina – Court Assistant.