https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8278

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS COMMERCIAL APPEAL NUMBER **E006** OF 2024 ROYAL MABATI FACTORY LIMITED………………………. APPELLANT VERSUS TOBIAS OKELLO OPIYO………………………...……….......RESPONDENT ***(An appeal from judgment and decree in the Small Claims Court at Machakos (Hon. M. Thibaru Adjudicator) claim number SCCOMM E072 of 2023 dated 12-06-2023)*** **JUDGMENT** The respondent lodged a claim in the trial court seeking special damages of Kshs 425,250.00 and refund of Kshs 324,339.00 from the appellant as compensation for breach of contract. The refund was said to be of money paid by the respondent to the appellant for supply of iron sheets which were never delivered while the special damages was money the respondent spent towards remedying the defects caused to the respondent’s house as a direct consequence of the failure to supply the iron sheets. The brief facts of the claim were that the respondent ordered supply of roofing iron sheets from the appellant which were to be delivered in Homabay County. The appellant quoted at a sum of Kshs 324,339.00 which amount the respondent paid. The appellant had upon enquiry advised the respondent to put up the roof frame which he did and waited for delivery of the ordered iron sheets in vain. Due to failure to supply the iron sheets, the timber which had been used to put up the frame warped up and due to exposure to weather conditions, they went to waste causing him loss to the tune of the amount claimed as special damages. In its response to the claim, the appellant denied owing the respondents any money but in the paragraphs that followed the denial, it admitted that it entered into an agreement with the respondent for sale of iron sheets but it became difficult for it to acquire the type ordered and the respondent was duly informed. It claimed that it tried to reach the respondent for a refund or replacement with different type in vain. Instead, the respondent filed the claim. It prayed that the claim be dismissed with costs. After hearing the parties, the trial court as expected made analysis in her judgment and of importance to this appeal, observed that the appellant did not refund the amount paid to it by the respondent and that the respondent had proved the claimed special damages. However, in its final orders, the court omitted the money claimed as refund and stated as follows; *‘Judgment is therefore entered in the following terms;* 1. *That the respondent owes the claimant Kshs 425,250.00.* 2. *Interests from the date of filing the suit until payment in full.’* Following the above judgment, the respondent’s advocates wrote a letter dated 31-07-2023 to the trial court pointing out that the court had made an error in failing to include the Kshs 324,339.00 in the final orders and requested for review or amendment of the judgement to reflect the omitted sum. The proceedings show that the court endorsed the typed judgment with the following comments; *‘Based on the letter dated 31-07-2021 and the provisions of S. 41 of the Small Claims Act, the judgment is amended to reflect the refund of Kshs 324,339.00 as per the findings in paragraphs 7 and 8 of the judgment. The final award is therefore amended to read Kshs 749,589.00’.* The appellant was aggrieved by the trial court’s judgment and the amendments and by memorandum of appeal dated 6th June 2024 raised the following grounds; 1. THAT judgement is a nullity, bereft of any force or effect in law because it was delivered outside the 60 days statutory timeline set out under Section 34 of the Small Claims Court Act, 2016 and hence was made without jurisdiction. 2. THAT the learned Magistrate exercised her discretion injudiciously by relying on a report that was produced by a person who had not signed the same and was not an expert in the subject before court. 3. THAT the learned Magistrate exercised her discretion injudiciously by relying on a report that was defective and null and void ab initio for want of a current license from the Engineers Board of Kenya. 4. THAT the learned Magistrate erroneously relied on photographic evidence which did not comply with the import and tenor of the provisions of Section 106B of the Evidence Act, Chapter 80 Laws of Kenya. 5. THAT the learned Magistrate contravened the law by delivering a judgment devoid of any points for consideration by the court, points for determination and reasons for the said decision in contravention with the mandatory requirement of Order 21 Rule 4 of the Civil Procedure Rule, 2010*.* 6. THAT the learned Magistrate acted unreasonably and unfairly by delivering a judgment that is bad in law, contrary to the evidence presented and contrary to the public policy. 7. THAT the learned Magistrate erred in failing to exercise her discretion judiciously by placing heavy reliance on the said report to award damages even though the report contained a disclaimer that the same should only be used purely as a guide. 8. THAT the learned Magistrate erred in law by amending the decree from Kshs. 425,250 to Ksh. 749,589 when the only issue that the court determined was whether or not the respondent was entitled to the sum of Kshs. 425,250 and judgement was entered for the said sum only. I have considered the memorandum of appeal and the submissions of the parties alongside the judgment of the trial court and I am satisfied that the appeal herein raises matters of law and pursuant to Section 38(1) of the Small Claims Court Act (hereinafter referred to as ‘the Act’), I have jurisdiction to determine this appeal. The issues of law I have identified area; 1. whether the court’s judgment is a nullity for having been delivered beyond the statutory period of sixty days; 2. whether the trial court was right in admitting the report dated 11-01-2020 in proof of special damages; and 3. whether the court was right in amending its judgement and the decree. According to the appellant, Section 34(1) of the Act ties and binds the court to the period of sixty days and any proceedings or judgment taken or delivered beyond that period is a nullity. The Section provides as follows; *‘All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day to day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.’* The appellant has cited authorities of ***Kartar Singh Dhupar & Company Limited v ARM Cement PLC (In liquidation) [2023] KEHC (KLR)*** where the court held that the judgment by the Small Claims Court which was issued outside the statutory timelines set under Section 34 of the Small Claims Court Act was made without jurisdiction and was therefore a nullity, bereft of any force or effect in law. On the part of the respondent, he submits that the use of word ‘shall’ in the said Section does not necessarily mean that the claim must be completed in the stated periods. This is not the first time I have come across the argument that judgments issued outside the statutory timelines are nullities. Whenever I have come across it, I have held the position and still do that the Section was facilitative and directional rather than jurisdictional. The jurisdiction of the court is provided for under Sections 11 to 16 of the Act and what Section 34 does is to give directions in order to promote expeditious disposal of the matters before the said courts in order to achieve the purpose for which they were created. In my view, if the courts were to take the position the appellant and some of my colleagues have taken, it would defeat the purpose for which the Legislature intended to achieve by enacting the Act. If indeed the Legislature intended to take the position being promoted by the appellant, it would have stated clearly that no suit or proceedings shall be heard or handled after the expiry of sixty days. Such a situation would just need a respondent to use tactics to delay the hearing of the claim in order to achieve a dismissal. In addressing similar issue in ***Biosystems Consultants v Nyali Links Arcade [2023] KEHC 21068 (KLR),*** Honourable Justice Kizito Magare held as follows, a position I subscribe to; *‘The purpose of the*[*Small Claims Court Act*](https://new.kenyalaw.org/akn/ke/act/2016/2)*is to facilitate expeditious disposal of the disputes while at the same time respecting the right to be heard. The net result is that balancing the two may result at times to overshooting the 60 days. The 60 days do not have penal consequences for good reason. They are aspirational. This is part of having access to justice over amounts that need not be in the normal system. Allowing the application will open floodgates that will eventually defeat the purpose of the Act.’* Honourable Justice Francis Rayola Olel held as follows in ***Mash Engineering Ltd v Simbanet Com Ltd & another [2026] KEHC 6608 (KLR)*** on the same issue; *‘Be that as it may, this court is however of the view that the purpose of timelines set under Section 34 of the*[*Small Claims Court Act*](https://new.kenyalaw.org/akn/ke/act/2016/2)*was to ensure timely disposal of suits and not to cause injustice to the parties.* The decision cited by the appellant and a few others were made by courts of jurisdiction concurrent to me and I respectfully differ with them. Until such a time contrary directions will come from the Court of Appeal or the Supreme Court of Kenya, I will keep that position. It is worthy to mention that there is need to settle this issue by having it referred to a higher court or amending the Act to give clear directions. The dilemma is that the appeal to this court in matters from the Small Claims Court is final but a way must be sought for a higher court to give directions. I now turn to the next issue which is proof of special damages. The appellant claims that the court erred in relying on a report which was produced by a person who had not prepared or signed it. It also submits that the photographs which were produced with the report did not meet the evidential requirement that electronic evidence must be accompanied by a certificate. The appellant also complains that the report contained a disclaimer that it was to be used as a guide only and therefore the court erred in relying on such a report. In that regard, the appellant submits that the special damages were not proved to the required standard. The appellant complains that the report should have been expunged from the record for the above reasons. The report was identified by the respondent on 11-05-2023, on which date he produced seven exhibits. The report was produced by on 31-05-2023 by CW2 one Frank Wanjofu who claimed to be the author. In cross-examination, the witness stated that the report was signed by SP Waiganjo together with whom he was working. The witness was clear that he was part of the preparation of the report although he majored in inspection. He owned the report and, in my view, the witness was competent to produce it. The other aspect of the reports the appellant has a problem with is inclusion of the photographs which were not accompanied by certificate of electronic evidence. The photographs were part of the report. The appellant is correct to the extent that photographs which are not accompanied with certificate may not be admissible in evidence depending on the way a basis for them is laid but even without the photographs, the court had enough evidence as proof of the damages. I have not seen any reference to the photographs in the trial court’s judgment and in that case, I do not see anything turning on this issue. In addition to the report, the respondent produced receipts for labour and materials used for putting up another roof as exhibit 8. Just like the report, the receipts were not objected to. The appellant came later after the production and asked for expunging of the report which to me was not well founded and lacked basis. The fact that the report had disclaimer did not invalidate the fact that the respondent had incurred damages. The disclaimer in the report states that it was prepared as a guide and in the event of a dispute, further investigations were recommended. I take the production of the receipts and proof of payment of labour as justification of the guidance in the report. I see no error in court relying on the report. The appellant has submitted further that the purpose of damages for breach of contract is for the innocent party to be put as nearly as possible in the same position it would have been if the breach complained of did not occur. This is the true position in law. However, what the appellant seems to misunderstand is that putting the respondent back to the position he would have been if the contract was not breached did not end with refund of the amount paid to the appellant. That is not the correct approach. If a party suffers damages which are direct consequences of failure of the other party to perform their part of the deal, it is entitled to restoration by way of compensation beyond the contract price. If the appellant had supplied the iron sheets, the respondent’s timber and other materials would not have been wasted. In that case, putting him back to his former position would entail refund of the money paid and compensation of the damages suffered as a result of the breach. The last issue is the whether the court was wrong in amending the judgment under Section 41 of the Small Claims Court Act. I have noted from the judgement of the court at paragraphs 7 and 8 that it held that the appellant owed the refund. Amendment of the judgment made changes to the final orders in order to align to the court’s analysis. The court confirmed in her notes made on the typed judgment that in view of the said paragraphs, the appellant owed the respondent the money paid for the iron sheets which were never delivered. Through all its evidence and pleadings, the appellant did not dispute the fact that it was paid for the iron sheets and that it had not refunded it despite its failure to deliver. The explanation it gave was that the respondent filed suit instead of going for the money or replacement of the iron sheets with others of his choice and the respondent was punished for that by denial of costs. Reading through the judgment, one can’t fail to understand it to mean that the court had found that Kshs 324,339.00 was owed to the respondent. The only problem was that the amount was not in the final orders. The Honourable Adjudicator as the trial court was the best suited to clarify what she meant in her judgment and I believe that the amendment did exactly that. The court was in my view within its jurisdiction and powers to make such amendments. In view of the above discussion, this appeal is not merited and it is hereby dismissed with costs. Dated signed and delivered at Nairobi this **5th** day of **June** 2026. **B.M. MUSYOKI** **JUDGE OF THE HIGH COURT.** Judgment delivered in presence of Miss Nasimiyu for the appellant and in absence of the respondent.