Chesang v Chumba [2026] KEHC 13613 (KLR)

Chesang v Chumba (Civil Appeal E003 of 2026) [2026] KEHC 13613 (KLR) (17 September 2026) (Judgment) Neutral citation: [2026] KEHC 13613 (KLR) Republic of Kenya In the High Court at Nakuru Civil Appeal E003 of 2026 JK Sergon, J September 17, 2026 Between Stephen Kipkurui Chesang Appellant and Vallary Cherop Chumba Respondent (Arising from the Ruling delivered on 31st day of March, 2026 at the Chief Magistrate's Court at Nakuru in SCCCOMM/E201/2026 by Hon P. Lemein, RM) Judgment A. Introduction and Background 1. This is an appeal against the Ruling of the Small Claims Court at Nakuru (Hon. P. Lemein, RM) delivered on 31 st March, 2026 in SCCCOMM/E201/2026, in which the trial court dismissed the Claimant's suit in its entirety on the ground that it was founded on an illegal transaction, and directed that each party bears its own costs.

2. By a Statement of Claim dated 18 th February, 2026, the Appellant (the Claimant before the trial court) sought to recover Kshs. 450,000 (four hundred and fifty thousand shillings) from the Respondent, together with general damages and costs, on the basis that; sometime in November 2025 the Appellant was informed that the Respondent was able to procure employment with the Teachers Service Commission (TSC) the Appellant and his wife, a qualified teacher, met the Respondent, who confirmed she could process a teaching position for the wife for a fee, negotiated at Kshs. 450,000. The Appellant paid the agreed sum to the Respondent on 29 th November, 2025. The Respondent issued application forms but never secured the promised employment. The Respondent was subsequently arrested on 15 th February, 2026 on allegations of defrauding members of the public by falsely representing that she could secure teaching positions for them.

3. The Respondent entered appearance and filed a response to the claim dated 5 th March, 2026 denying the claim in its entirety. On 6 th March, 2026 the Respondent additionally filed a Notice of Preliminary Objection seeking to strike out the suit on the sole ground that it was sub judice, there being a pending criminal matter between the same parties over the same subject matter, namely Eldama Ravine CMCC No. E007/2025 Republic v Allan Amatta & Valary Jerop Chumba, which was then due for hearing on 9th March, 2026.

4. The trial court directed that the Preliminary Objection be canvassed by way of written submissions. The Appellant filed submissions dated 19 th March, 2026, contending that the mere existence of pending criminal proceedings does not bar a party from pursuing a civil claim arising from the same facts, relying on section 193A of the Criminal Procedure Code and the decisions in Republic v Director of Public Prosecutions & another Ex parte Chamanlal Vrajlal Kamani & 2 others and Commissioner of Police & Director of Criminal Investigations Department v Kenya Commercial Bank & others, Nairobi Civil Appeal No. 56 of 2012, and further that the Preliminary Objection did not meet the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, because it required the court to undertake a factual inquiry into whether the two matters were identical. The Respondent did not file submissions.

5. In its Ruling delivered on 31 st March, 2026, the trial court did not pronounce itself on the sub judice objection as framed. Instead, the court held that, although the Appellant had not characterised the payment of Kshs. 450,000 as a bribe, the substance of the transaction disclosed a payment made to improperly influence the recruitment process of a public body, and that the claim was accordingly founded on an illegal transaction. Applying the doctrines of ex turpi causa non oritur actio and in pari delicto est conditio defendentis, which means from an immoral consideration an action does not arise. Meaning a party does not have a right to enforce performance of an agreement founded on a consideration that is contrary to the public interest. The court found that the parties were equally implicated in the illegality, declined to assist either of them, dismissed the suit in its entirety, and ordered that each party bears its own costs. B. The Appeal 6. Aggrieved, the Appellant filed a Notice of Appeal and, subsequently, an Amended Memorandum of Appeal dated 10 th April, 2026, raising seven grounds which, in substance, complain that the learned Magistrate: misdirected himself on the legal principles governing determination of a Preliminary Objection; failed to appreciate that a Preliminary Objection must be confined to pure points of law and cannot properly be used to resolve

contested facts; entertained and determined matters of fact and an entirely new issue of illegality that was neither pleaded by any party, raised in the Notice of Preliminary Objection, nor canvassed in submissions; consequently exceeded the scope of the objection before him and occasioned prejudice to the Appellant; misapprehended and misapplied the doctrine of sub judice without a proper legal or factual basis; summarily disposed of the suit without affording the Appellant an opportunity to be heard on the merits, in violation of the rules of natural justice and Article 50 of the Constitution ; and failed to properly evaluate the Appellant's submissions and the applicable law.

7. The Appellant prays that the appeal be allowed, that the Ruling of 31 st March, 2026 be set aside in its entirety, that the suit be reinstated for hearing and determination on its merits before a different Magistrate or adjudicator, and that costs of the appeal and of the proceedings below be awarded to him. C. Submissions 8. The Appellant's written submissions filed in support of the appeal reiterate that the sole issue placed before the trial court, both by the Notice of Preliminary Objection and by the directions of the court itself, was whether the suit was sub judice.

9. It is submitted that the trial court was not entitled to introduce and determine, of its own motion, an entirely different and more fundamental issue namely, the legality of the underlying transaction without affording the parties notice of that issue or an opportunity to address it. Reliance is placed on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra) for the proposition that a preliminary objection must raise a pure point of law capable of disposing of the suit without the need to ascertain facts, and on Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR for the principle that parties and the court are bound by the pleadings, which delimit the issues a court may properly pronounce upon.

10. The Respondent did not file any submissions in this appeal, notwithstanding service and the opportunity to do so. The appeal accordingly falls for determination on the basis of the record, the Appellant's submissions, and the applicable law, which this Court has independently considered. D. Issues For Determination 11. Having considered the record and the grounds of appeal, three issues arise for determination: i. Whether the learned Magistrate exceeded the scope of the Preliminary Objection dated 6 th March, 2026 by determining an issue of illegality that was neither pleaded nor canvassed by the parties; ii. Whether, in so doing, the learned Magistrate denied the Appellant his right to a fair hearing under Article 50(1) of the Constitution and the rules of natural justice; and iii. What orders this Court should make. E. The Jurisdiction Of This Court 12. Section 38(1) of the Small Claims Court Act , No. 2 of 2016, confines an appeal from the Small Claims Court to the High Court to “matters of law”, and by section 38(2) that decision is final.

13. It is plainly a matter of law whether the trial court had jurisdiction to determine, and did properly determine, an issue that was never before it on the pleadings and whether the manner in which it did so complied with the constitutional guarantee of a fair hearing. Those are the questions this appeal raises, and they are properly before this Court. F. Analysis And Determination (i) Scope of the Preliminary Objection and the issues properly before the trial court 14. The classic and still authoritative definition of a preliminary objection is found in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where the Court of Appeal for East Africa held that a preliminary objection consists of a pure point of law argued on the assumption that all the facts pleaded by the other side are correct, and that it cannot properly be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

15. The Notice of Preliminary Objection dated 6 th March, 2026 was, on its face, confined to a single point: that the suit was sub judice by reason of the pending criminal case. That was the only issue the Respondent placed before the trial court, the only issue the trial court directed to be canvassed, and the only issue the Appellant was called upon, and did, address in his submissions.

16. It is a foundational and long-settled principle of civil procedure that parties are bound by their pleadings, and that the issues for determination in a suit flow from those pleadings. In Galaxy Paints Co. Ltd v Falcon Guards Ltd [2000] 2 EA 385, the Court of Appeal held that a trial court can only pronounce judgment on the issues arising from the pleadings, or such issues as the parties have framed for its determination, and that unless the pleadings are amended the parties remain confined to them.

17. The same principle was restated in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR, and traces back to Captain Harry Gandy v Caspair Air Charters Ltd [1956] 23 EACA 139, where it was held that “cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment.” 18. There is a recognised, narrow exception to this rule. In Odd Jobs v Mubia [1970] EA 476, and as later expounded in Vyas Industries Ltd v Diocese of Meru [1976] eKLR, it was held that a court may found its decision on an unpleaded issue where it appears from the course followed at the trial that the issue was in fact canvassed by the parties and left to the court for decision. That exception has no application here. The record does not disclose that either party raised, argued, or was invited to address the question of the legality of the underlying transaction.

19. The Appellant's submissions were confined to the sub judice point; the Respondent filed no submissions at all. The issue of illegality first surfaces in the trial court's own Ruling. This is materially different from a case where an issue, though unpleaded, is ventilated by the parties in the course of proceedings and left for the court's determination; here, no party ever addressed the point, whether in pleadings, in the Preliminary Objection, or in submissions.

20. By determining the suit on a ground of its own devising, wholly outside the four corners of the Preliminary Objection placed before it, the learned Magistrate exceeded the scope of the matter he had been asked to decide and, in doing so, breached the settled rule that a court's determination must be anchored in the issues properly placed before it by the parties. This disposes of the first, second, third and fifth grounds of appeal. (ii) The right to a fair hearing 21. The difficulty in this case goes further than a mere excess of scope. It is well established that courts are not absolutely precluded from raising a decisive point suo motu, particularly where it touches on jurisdiction or public policy; illegality falls into that latter category, since no court will lend its process to the enforcement of an illegal transaction, and the parties' silence on the point cannot estop the court from taking notice of it. That principle is not in dispute. What is equally well established, however, is that where a court elects to raise such a point of its own motion, it must, before basing a determination upon it, accord the parties an opportunity to be heard on that specific point. In Nakumatt Holdings Limited v Commissioner of Value Added Tax [2011] eKLR, the Court of Appeal held that even where a court raises a point suo motu, the parties, and particularly the party who stands to

be adversely affected, must be given the opportunity to address the court on it, and that a court which resolves such a point one way or the other without hearing the parties acts in breach of their right to a fair hearing. The same approach was applied by the Court of Appeal in the context of jurisdiction in Kenya Ports Authority v Modern Holdings [EA] Limited [2017] eKLR, where the Court stated that a point may be raised by the court itself “provided that where the court raises it suo motu, parties are to be accorded the opportunity to be heard.” 22. In the present case, the trial court did not merely raise the question of illegality; it went on, in the same Ruling and without any prior notice to either party, to make a final and dispositive finding that the transaction was an illegal bribe, and to dismiss the entire suit on that basis. The Appellant was never told that the characterisation of the payment was in issue, was never invited to plead or argue on the point, and was never given the chance to show, for instance, that the payment was made for the lawful processing of a job application rather than to corruptly influence a public appointment, or that the true complaint – as reflected in the Appellant's own pleaded case, including the fact that the Respondent was reportedly arrested for defrauding members of the public rather than for an offence of bribery – sounded in

fraud and misrepresentation rather than mutual illegality. Nor was the Appellant afforded any opportunity to invoke the established common law exception, recognised in this jurisdiction, that a party who is not in pari delicto with the other – for example because he was induced into the transaction by the other party's fraudulent misrepresentation, or because he is the party a protective rule of law is intended to shield – may nonetheless recover money paid under a transaction later found to be tainted with illegality: see Kiriri Cotton Co. Ltd v Ranchhoddas Keshavji Dewani [1960] AC 192, a decision of the Privy Council on appeal from the Court of Appeal for Eastern Africa. Whether or not that exception would ultimately have availed the Appellant is not a matter this Court need decide; what matters is that the question was never put to him, and he was condemned without the chance to be heard on it.

23. A decision that finally disposes of a litigant's claim, on a ground the litigant was never told he had to meet, strikes at the core of the right to a fair hearing guaranteed by Article 50(1) of the Constitution and offends the audi alteram partem rule of natural justice. This is not a mere technical irregularity capable of being cured by this Court simply affirming the trial court's conclusion on the merits; it is a fundamental defect in the process by which that conclusion was reached, and it disposes of the sixth ground of appeal. (iii) Failure to determine the objection actually raised 24. A further consequence of the course taken by the trial court is that the Preliminary Objection actually filed by the Respondent – the sole basis on which the suit was sought to be struck out, and the sole issue the parties were directed to and did address – was never determined. The Appellant's submissions on that objection, including the argument that the pendency of a criminal case does not, without more, render a civil suit sub judice, and that section 193A of the Criminal Procedure Code contemplates civil and criminal proceedings running concurrently, went unanswered. A litigant is entitled to a decision on the objection placed before the court, one way or the other; that did not happen here, and this omission independently vitiates the Ruling and supports the fourth ground of

appeal. Disposition 25. In the end the appeal is allowed given rise to issuance of the following orders: (i) The Ruling of the Small Claims Court at Nakuru delivered on 31st March, 2026 in SCCCOMM/E201/2026 is hereby set aside in its entirety. (ii) The suit/claim is reinstated and is remitted back to the Small Claims Court at Nakuru for the rehearing of the Preliminary Objection dated 6th March, 2026 on its own merits, strictly confined to the issue of sub judice as pleaded. (iii) The Respondent shall bear the costs of this appeal. DATED, SIGNED AND DELIVERED AT NAKURU THIS 17 TH DAY OF SEPTEMBER, 2026. J. K. SERGON

JUDGE In the presence of: Jamleck C/A Odoyo for the Appellant N/A for the Respondent