https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9422

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **THE CIVIL APPELLATE DIVISION** ***(Coram: A.C. Mrima, J.)*** **CIVIL APPEAL NO. E754 OF 2024** ***-between-*** **SYLVIA INGUMBA LUGUSA....................................................APPELLANT** ***-versus-*** **NAIROBI CITY WATER AND** **SEWERAGE COMPANY LIMITED………............................... RESPONDENT** **JUDGMENT** ***(Being an appeal against the Ruling and Order of Hon. D. S Aswani RM/Adjudicator in Small Claims Court Civil Case No. E3337 of 2022 delivered on 29th May 2024)*** **Introduction:** 1. The dispute between the Appellant, *Sylvia Ingumba Lugusa*, and the Respondent, *Nairobi City Water & Sewerage Company Limited*, arose from contested water bills for Account No. 5146328 concerning a residential house located on LR. NO. 12422/728 in Muthaiga North, Nairobi. 2. The Appellant averred that she had consistently paid for water consumption, which historically ranged between 10 to 20 units monthly. The dispute was triggered on or about 13th October 2020, when the Respondent issued a bill indicating that the Appellant had consumed 640 units of water in two months, totalling Kshs. 190,369. The Appellant filed a complaint, leading the Respondent to test the water meter, which was found to be faulty and replaced in April 2021. 3. However, the Appellant contended that the new meter continued to record abnormally high readings, while the Respondent maintained that the meter was functioning properly and attributed any leakages to a faulty ball valve at the premises. The Respondent disconnected the Appellant’s water supply on 16th March 2022 due to the alleged unpaid arrears. 4. The Appellant subsequently filed a claim at the Small Claims Court seeking, among other reliefs, the restoration of water supply and the setting aside of the disputed bill. On 19th October 2023, the Small Claims Court delivered a judgment dismissing the Appellant’s claim and allowing the Respondent’s counterclaim. It ordered the Appellant to pay the outstanding water bill arrears of Kshs. 99,616.66. 5. Dissatisfied with the outcome, the Appellant filed a Notice of Motion on 5th February 2024 seeking a review of the judgment based on the discovery of new evidence and the omission of written submissions by her former Advocates. The Learned Magistrate dismissed the review application on 29th May 2024, precipitating the present appeal and the Amended Notice of Motion dated 12th June 2025. 6. This Court subsumed the application into the main appeal in its directions of 22nd October 2025, hence, this judgment. **The Amended Notice of Motion:** 1. The Appellant filed an Amended Notice of Motion dated 12th June 2025. She sought the following orders: 2. *Spent.* 3. *THAT before the Court are two motions: one seeking a conservatory order against the Respondent, and the other seeking to introduce new evidence of intimidation and malpractice.* 4. *THAT I respectfully request that the Honourable Court allow the application to be heard ex-parte in the first instance.* 5. *THAT the Respondent is charging below market rates for water services which distorts the true cost and misrepresents my billing, potentially concealing issues that require resolution to ensure fair billing. This undercharging increases the risk of inflated future bills once the respondent adjusts to the correct rates causing significant and irreparable financial harm and leaving me in a state of constant uncertainty.* 6. *THAT hearing the case ex parte will not cause the Respondent any prejudice as the orders sought aim to preserve the status quo and protect my rights. An ex-parte hearing is necessary to ensure that the Respondent’s actions do not further complicate or undermine the resolution of this matter.* 7. *THAT the new evidence includes a supporting affidavit from myself as well as a second affidavit from Hiram Wangu.* 8. *THAT Hiram Wangui’s Affidavit details how he made a payment to the disputed account under the false belief that the Respondent had resolved all outstanding issues, this is supported by two pieces of documentation regarding the reversal request.* 9. *THAT my supporting affidavit includes WhatsApp conversations explicitly instructing against any payments along with an email inquiry regarding questionable entries in my account to which the Respondent has failed to respond to.* 10. *THAT the new evidence is critical to the appeal as it directly challenges the legality of the payments made under false belief raising the concern about the accuracy and legitimacy of the transactions.* 11. *THAT this is especially important, in this appeal as the Respondent may argue that the Court lacks jurisdiction to adjudicate the case based on the events that occurred during the weekend of 3rd January 2025.* 12. *THAT despite my request for a reconciliation of my account and the Respondent’s email confirming that this will be carried out. I have yet to receive any response. when I inquire about my account no information is provided, I content that the Respondent’s failure to respond constitutes a breach of their duty and non- performance of their obligations.* 13. *THAT this Honourable Court be pleased to issue a conservatory order restraining the Respondent, whether by themselves or their agents, from undertaking any enforcement action including visits to the Appellant’s residence to demand payment and instead direct that such communication be made electronically during the pendency of the appeal, in order to safeguard the Appellant’s right to fair administrative action. Further, that the Respondent be granted a period of fourteen (14) to twenty-one (21) days to reconcile or confirm the accuracy of the Appellant’s account from January 2024 to date, given that billing is a monthly cycle.* 14. *THAT I request that this Court to grant conservatory orders as prayed to protect my interests pending the hearing and determination of the appeal. These orders are essential to preserve the status quo and prevent any further harm during the appeal process.* 15. *THAT pending the hearing and determination of this application and the main appeal, the Respondent be compelled to reconnect water supply to the Appellant’s residence, failing which the Appellant be at liberty to do so at the Respondent’s cost.* 16. *THAT this Honourable Court be pleased to declare that the Kshs. 6,126 payment made in January 2025 under false representations, and the unexplained Kshs. 3,000 deposit of June 2024, do not amount to an admission of liability; and that the status quo be preserved pending appeal outcome.* 17. *THAT the costs of this application and any other remedies the Court deems fit.* 18. In the Supporting Affidavit sworn on 11th June 2025, the Appellant deposed that during open Court proceedings on 1st April 2025, the Court issued verbal interim directions that water supply to her residence should not be disconnected pending the determination of the application for conservatory orders. It was her case that despite the directions, the Respondent disconnected the water supply on 19th May 2025. She sought leave to amend her Notice of Motion to include prayers for immediate reconnection and costs, and to clarify omitted paragraphs. **The Appeal:** 1. Through the Memorandum of Appeal dated 25th June 2024, the Appellant urged the following grounds of appeal: 2. *The Learned Magistrate gravely erred in law by declaring the review application time-barred despite the provisions of Section 41(2) of the Small Claims Court Act and Section 26(a) of the Limitation of Action Act.* 3. *The Magistrate gravely erred in law by failing to properly consider and evaluate all the new evidence provided, written submissions and amended statement of claim that were uploaded on the Court portal leading to a judgement that was not supported by law and evidence contrary to Article 50(1) of the Constitution, Article 159(2)(d) of the Constitution, and Section 32 of the Small Claims Court Act.* 4. *The Magistrate committed a gravely erred in law by not considering the old evidence provided yet Section 17 of the Small Claims Court Act and Article 159 of the Constitution gives the learned Magistrate discretion to review such evidence without regards to procedural technicalities.* 5. *The Magistrate gravely erred by failing to consider that a judgment based on a nullity, and a sum of decree payment based on the same, must as a matter of law be set aside.* *The Submissions:* 1. The Appellant filed two sets of submissions being the initial ones dated 4th November 2025 and supplementary submissions dated 13th December 2025. It was her case that the Learned Magistrate erred by treating the 30-day statutory period for review as an inflexible bar. Relying on the authority in *Andrew Kiplagat Chemaringo -vs- Paul Kipkorir Kibet* [2018] KECA 701 (KLR), she asserted that a plausible explanation unlocks the Court’s discretionary favour, arguing that her delay was solely due to her former Counsel’s failure to communicate the judgment. Guided by the precedent in *Masinde -vs- Wafula [*2022] KEELC 3028 (KLR), the Appellant contended that an innocent litigant should not suffer for their Counsel’s procedural oversight, and that the failure to recognize the oversight amounted to a reversible error, a position held in *United India Insurance Co Ltd -vs- East African Underwriters (Kenya) Ltd* [1985] KECA 39 (KLR). 2. The Appellant further argued that time was suspended by Section 26 of the Limitation of Actions Act because the alleged billing fraud was only discovered on 4th January 2024. She drew support from decision in *Chemitei Kendagor -vs- Job Kipnandi Chebon & 4 Others* [2021] KEELC 3694 (KLR) and *Kenya Ports Authority -vs- Timberland(K) Ltd [*2017] eKLR. 3. Turning to the trial Court’s failure to evaluate evidence, the Appellant cited *Peter Gichuki King’ara -vs- Independent Electoral and Boundaries Commission & 2 Others* [2013] KECA 278 (KLR) to assert that proper evaluation of evidence is fundamentally a question of law. She argued that her forensic audit report and the online billing calculator met the threshold of compelling new evidence as defined in the case of *Robert Tom Martins Kibisu -vs- Republic* [2014] KECA 741 (KLR). The Appellant contended that the burden of proving fraud was met under the standards set in *Moses Parantai & Peris Wanjiku Mukuru -vs- Stephen Njoroge Macharia* [2020] eKLR and the *International Standard on Auditing (ISA) 240*, demonstrating intentional manipulation of the water statements by the Respondent. 4. On the issue of old evidence and procedural breaches, the Appellant cited *Dakianga Distributors (K) Ltd -vs- Kenya Seed Company Limited [*2015] KECA 870 (KLR) regarding the binding nature of pleadings, arguing that her amended statement of claim effectively introduced fraud and duress. She asserted that the trial Court’s failure to adjudicate these claims constituted a breach of natural justice, rendering the judgment void *ab initio*, as established in *Super Nova Properties Limited v The National Land Commission* [2019] KEHC 9736 (KLR) and *Omega Enterprises (Kenya) Ltd. v Kenya Tourist Development Corporation Ltd* [1998] KECA 2 (KLR). 5. Finally, the Appellant sought exemplary damages for economic duress and oppressive conduct. She anchored her claim on the precedents set in *Madhupaper International Ltd & Another v Kenya Commercial Bank Ltd & 2 Others* [2003] KEHC 991 (KLR), *Rookes v Barnard* [1964] AC 1129, and *Gladys Karimi Musyimi v Fahari Cars Ltd & Another* [2021] eKLR, to argue that the Respondent’s coercive billing practices warranted punitive sanction. In addition, she contested the Respondent’s legal costs. To that end, she referred to the decision in *Moronge & Company Advocates -vs- Kenya Airports Authority [*2014] KECA 816 (KLR) to argue that the awarded costs were excessive and amounted to unjust enrichment. **The Respondent’s case:** 1. The Respondent opposed the appeal through written submissions dated 5th November 2025. At the outset, it was its position that under Section 38 of the Small Claims Court Act, the High Court’s jurisdiction is strictly confined to matters of law. It asserted that this Court’s function is akin to a second appellate Court as was established in *Kenya Breweries Ltd -vs- Godfrey Odoyo* [2010] eKLR. 2. On the issue of limitation, the Respondent submitted that the 30-day window prescribed by Section 41(2) of the Act had long expired, and the Appellant failed to satisfy the equitable thresholds for extending time outlined by the Supreme Court in *Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & 7 Others* [2014] eKLR. 3. Addressing the Appellant’s purported new evidence, the Respondent relied heavily on the principles established in *Mahamud -vs- Mohamad & 3 others [*2018] KESC 62 (KLR) and *Republic -vs- Advocates Disciplinary Tribunal Ex parte Apollo Mboya* [2019] eKLR, to front the argument that any material advanced for review must be genuinely new, critical, and demonstrably undiscoverable prior to judgment despite the exercise of due diligence. The Respondent contended that the Appellant’s admission of possessing 20% of the documents at trial, coupled with the post-judgment discovery of an online calculator, blatantly violated the strict rules. The Appellant tempered its case by referring to the decision in *Attorney General & 3 others -vs- Tott & 8 others [*2024] KECA 1275 (KLR) and *Wanje -vs- A.K. Saikwa* [1984] KECA 58 (KLR), which firmly prohibit litigants from patching up weak points in a case after a determination on the merits. 4. The Respondent further opposed the Appellant’s prayer for a *de novo* hearing. It referred to the Supreme Court’s stance in *Khalid & 16 Others -vs- Attorney General & 2 Others* [2020] KESC 30 (KLR) and the Indian Supreme Court case of *Ajay Kumar Ghoshal -vs- State of Bihar & ANR*, to advance the position that a *de novo* hearing is merely a continuation of an interrupted trial, not a mechanism to bypass finality once a matter has been fully adjudicated and the decretal sum satisfied. 5. Ultimately, the Respondent branded the Appellant’s conduct as an abuse of the judicial process aimed at perpetuating a dispute where none exists. To emphasize the duty of parties to cooperate with the Court through chronological and consistent pleadings rather than advancing a multitude of fragmented arguments, the Respondent cited the cautionary principles laid down in *Ashmore -vs- Corporation of Lloyds* [1992] 2 All ER 486. **Issues for Determination:** 1. Having comprehensively appreciated the parties’ respective cases, the following issues arise for determination: - 2. *Whether the Appellant’s application for review was time-barred.* 3. *Depending on (i) above, the propriety of the finding that the Appellant evidence did not meet the threshold for review.* 4. *Depending on (ii) above, the merits of the Application and the Appeal.* **Analysis and Determination:** 1. Before delving to the issues, this Court must demarcate its jurisdiction. Section 38(1) of the Small Claims Court Act provides as follows; *38. Appeals* *(1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.* 1. In ***M’bagine -vs- Nyaga***(Civil Appeal 172 of 2019) [2026] KECA 335 (KLR), the Court of Appeal outlined its role as the final appellate Court, and discussed matters of law as follows: - *…. For second appeals, this Court has repeatedly stated the limiting principle in Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR and Stanley Maore v Geoffrey Mwenda [2004] eKLR: that interference with concurrent factual findings is not warranted unless the conclusions are plainly wrong in law on the recognized exceptions.* *The same approach is reflected in Karingo v Republic [1982] KLR 213 and M’Riungu v Republic [1983] KLR 455, where the Court emphasised that a second appeal must be confined to points of law, and that a complaint about facts only becomes a point of law if the findings are unsupported by evidence or disclose a misdirection in principle.* 1. In ***Gatirau Peter Munya -vs- Dickson Mwenda Kithinji & 2 Others***[2014] eKLR the Supreme Court restated that an issue may be one of law where there is a misapplication of legal principle or a conclusion not supported by the evidential record. In ***J N & 5 Others -vs- Board of Management, St. G School Nairobi & Another*** *[*2017] eKLR, the Court discussed points of law in the following fashion: - *… In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a finding of fact) usually depends on particular circumstances or factual situations.* 1. With the foregoing guidance, the issues to be canvassed in this matter amount to issues of law and this Court is properly seized of the appeal. Next is a consideration of the substantive issues. **[a] Whether the Appellant’s application for review was time-barred:** 1. Any issue in respect of limitation of time is a question of law since it touches on the jurisdiction of a Court. To that end, the resolution of the question whether the application was time barred revolves on the interplay between Section 41(2) of the Small Claims Court Act and the Limitation of Actions Act. 2. From the Record of Appeal, it is unequivocal that the impugned judgment was delivered on 19th October 2023, while the review application was lodged on 5th February 2024, a period in excess of three months. 3. Section 41(2) of the Small Claims Court Act provides as follows; *41. Review of orders or awards of the Court* *(1) An Adjudicator may, on application by any aggrieved party or on his or her own motion, review any order of the Court on the ground that—* *(a) the order was made ex-parte without notice to the applicant;* *(b) the claim or order was outside the jurisdiction of the Court;* *(c) the order was obtained fraudulently;* *(d) there was an error of law on the face of the record; or* *(e) new facts previously not before the Court have been discovered by either of the parties.* ***(2) The application referred to under subsection (1) shall be made within thirty days of the order or award sought to be reviewed or such other period as the court may allow.*** 1. The Respondent rightfully contended that the timeline within which the review application was filed vastly exceeded the 30-day statutory limit. The Appellant’s countered the Respondent’s argument on the claim that Section 26 of the Limitation of Actions Act suspended time due to the post-judgment discovery of fraud *via* an SMS on 4th January 2024. The said section provides thus; *26. Extension of limitation period in case of fraud or mistake* *Where, in the case of an action for which a period of limitation is prescribed, either—* *(a) the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or* *(b) the right of action is concealed by the fraud of any such person as aforesaid; or* *(c) the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it.* 1. The above provision protects litigants whose causes of action are concealed by the Defendant on account of fraud or mistake. From the outset the dispute between the parties herein was clear-cut. It revolved around a faulty meter and the subsequent high billing. The issue was thoroughly litigated and known to the Appellant throughout the trial process. From a reading of section 26 of the Limitation of Actions Act and the text message exchange found in page 172 of the Record of Appeal, there is no doubt that the Appellant did not bring herself within the protection anticipated therein. 2. The trial Court’s conclusion that the delay was inordinate and unexplained was firmly rooted in the procedural record. It is also notable that the Appellant did not seek an extension of time under Section 42[2] of the Small Claims Court Act and the same denied so as to bring her within the claim that the trial Courts denial of extension of time was an injudicious exercise of discretion. Therefore, this Court finds that refusal to allow the review fully aligned with the dictates of the law for strict adherence to statutory timelines. This Court cannot fault it. 3. Having found as such, and even if this Court was to consider the rest of the issues, still the review application did not satisfy any of the grounds stated in Section 41(1) of the Small Claims Court Act. That is because the Appellant did not satisfactorily demonstrate that the impugned judgment was made *ex-parte*; that the claim or order was outside the jurisdiction of the Small Claims Court; that the order was obtained fraudulently; that there was an error of law on the face of the record; or that new facts previously not before the Court were discovered by either of the parties. 4. As a restatement, the Appellant did not attain the threshold of discovery of new facts since the alleged Appellant’s forensic audit report and the online billing calculator were within the Appellant’s discretion even at trial, hence, not new issues. No reason was given as to why the Appellant did not utilize such at trial. Certainly, review applications should not be used to regurgitate matters once properly presented and determined. 5. Drawing from the above findings, suffice to say that all the issues raised in this appeal do not aid the Appellant. As such, the entire appeal and the application are unsuccessful. **Disposition:** 1. In the end, this Court finds that the appeal and the application lack merit. The following final orders hereby issue: - **[a] The appeal is hereby dismissed.** **[b] The Amended Notice of Motion dated 12th June 2025 is hereby dismissed.** **[c] For the avoidance of doubt, the trial Court’s Ruling of 29th May 2024 is hereby upheld.** **[d] Costs of the appeal to the Respondent.** It is so ordered. **DELIVERED, DATED** and **SIGNED** at **NAIROBI** this **30th** day of **June, 2026.** **A. C. MRIMA** **JUDGE** **Judgment virtually delivered in the presence of:** **Sylvia Ingumba Lugusa,** the Appellant in person. **Mr. Otwal,** Learned Counsel for the Respondent. **Michael/Amina –** Court Assistants.