https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10813

Okello t/a Springs Dental Clinic v Sky Rank Ltd (Small Claims Appeal E312 of 2025) [2026] KEHC 10813 (KLR) (Civ) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10813 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Small Claims Appeal E312 of 2025 D Mburu, J July 16, 2026 Between Trevor Ochieng Okello t/a Springs Dental Clinic Appellant and Sky Rank Ltd Respondent (Being an Appeal from the Ruling of Hon. K. Ireri (Adjudicator) delivered on 8th July 2024 at Milimani SCCCOMM No. E7499 of 2022) Judgment Introduction 1.This appeal arises from the judgment of the Small Claims Court at Milimani (K. Ireri, Adjudicator) delivered on 8th July 2024 in SCCCOMM No. E7499 of 2022. 2.On 12th June 2022, the respondent contracted the appellant for the provision of a dental chair- accident 6800 with dentist stool and 32L dental compressor (dental chair) valued at Kshs. 500,000/-. An agreement for sale was subsequently signed the terms of which required the appellant to pay a deposit of Kshs., 150,000/- and the balance in 2 equal monthly instalments. The respondent issued an invoice for the dental chair that came to Kshs. 580,000/- made up as follows: Kshs. 500,000/- for the product and Kshs. 80,000/- as VAT. 3.The appellant made the first payment of Kshs. 150,000/- on 17th June 2022 and issued 2 post-dated cheques whereupon the dental chair was delivered on the same day. However, the first cheque for Kshs. 215,000/- was dishonoured. The appellant subsequently paid Kshs. 40,000/- on 1st August 2022 but declined to confirm whether the post-dated cheque dated 18th August 2022 could be banked. Despite making numerous follow-ups, the appellant did not pay the outstanding balance. Factual History 4.By an undated statement of claim, the respondent filed a claim for the outstanding balance for the dental chair together with costs of the claim. 5.In response, the appellant filed a defence dated 10th January 2023 admitting purchasing the dental chair for Kshs. 580,000/-. However, he disputed the outstanding balance claimed by the respondent Kshs. 300,000/- arguing that his balance was Kshs. 280,000/- which he proposed to settle the same in instalments. 6.Vide its judgment delivered on 30th January 2023, the trial court (Keyne G. Odhiambo, SRM) allowed the claim, holding that the appellant had failed to prove the payment of Kshs. 110,000/- through Vincent Onyango Nyinya. It declined to allow the appellant’s prayer to pay the balance in instalments since a decree had not been issued. The court also granted stay of execution. 7.Following the Judgment, the respondent commenced execution proceedings on or around 13th March 2023 for the decretal sum of Kshs. 463,362/-. This prompted the appellant to file an application dated 14th March 2023 seeking orders for stay of execution and payment of the decretal sum in instalments of Kshs. 60,000/-. 8.It would appear that in the meantime, the respondent proceeded with the execution, prompting the appellant to file another application dated 4th April 2023 seeking orders of stay of execution and a temporary injunction restraining the respondent and its agents from attaching the appellant’s goods pending the determination of the application dated 14th March 2023. 9.Unfortunately, when the applications dated 14th March 2023 and 4th April 2023 came up for hearing, the appellant had not filed the return of service and so the applications were not heard. 10.Meanwhile, the respondent obtained warrants of attachment. The appellant filed yet another application dated 6th April 2023 seeking similar orders to those in the pending application dated 4th April 2023. 11.Still keen on realizing the fruits of its judgment, the respondent obtained a warrant of attachment of movable property dated 14th May 2023 for the decretal sum of Kshs. 463,362/-. 12.By a Ruling delivered on 23rd June 2023, the trial court (S.G Gitonga, SRM) considered the application dated 14th March 2023 and granted conditional orders requiring a lump sum payment of Kshs. 150,000/- followed by monthly instalments of Kshs. 60,000/-, and in default, execution to issue. 13.The appellant defaulted, and a warrant of attachment was issued against him on 31st August 2023. It was only when his equipment at the dentistry was attached that he paid Kshs. 200,000/- to secure their release. Subsequently, the parties executed a consent in the following terms:i.The decretal balance of Kshs. 484,480/- be liquidated as follows:a.The appellant has so far paid Kshs. 200,000/-.b.The difference be liquidated in monthly instalments of Kshs. 70,000/- until payment in full effective on or before every 4th day of each succeeding month.ii.The attached property be released by Remma Auctioneers upon payment of the auctioneer’s costs by the appellant.ii.That in default of any single instalment, the respondent be at liberty to execute for the entire balance thereof. The Application dated 7th December 2023 14.Despite the consent, the appellant filed a further application dated 7th December 2023 premised on Sections 36(1)(a), 42(2) and 43 of the Small Claims Court Act, Rule 28(1)(3)(4) and (5) of the Small Claims Court Rules, seeking the following orders:i.Spent.ii.Stay of execution of the decree herein pending the hearing and determination of this application.ii.The proceedings be re-opened to allow the appellant tender new evidence.ii.Costs of the application. 15.The appellant grounded his application on a demand letter dated 15th September 2022 authored by Roselyn Achieng t/a Trium Collect Agencies wherein the respondent acknowledged the outstanding balance to be Kshs. 280,000/-. In the appellant’s opinion, this was a confirmation that indeed the respondent received a further Kshs. 110,000/- towards the purchase of the dental chair. 16.The respondent opposed the application vide a preliminary objection dated 2nd January 2024 urging that the application was anchored on improper laws and that the court was functus officio. The preliminary objection was disposed of first. 17.Vide a Ruling delivered on 16th February 2024, the trial court (C.K. Ireri, RM) dismissed the preliminary objection holding that it did not raise a pure point of law. In its view, it raised issues that could only be resolved by considering the evidence to ascertain the facts. 18.In the intervening time, the respondent filed a substantive replying affidavit sworn on 11th June 2024 opposing the application dated 7th December 2023. The respondent’s director, Joseph Kangara, deponed that the appellant had persistently defaulted on payment obligations. In addition, it was urged that the purported new evidence was inadmissible and had, in any case, been previously within the appellant’s knowledge. In any event, the respondent declined having instructed the author of the letter dated 15th September 2022 to recover its monies. What is more, he pointed out, the said letter was marked ‘Without Prejudice’ and could not therefore be adduced as evidence. 19.In a Ruling delivered on 8th July 2024, the trial court (C.K. Ireri, RM) observed that the review application was filed 11 months after the Judgment, contrary to the Small Claims Courts Act, and without any explanation for the delay. That said, the trial Magistrate, relying on David Kipkosgei Kimeli vs Titus Barmasai [2017] eKLR, held that the appellant had not presented any new evidence demonstrating any nexus between the respondent and Vincent Onyango who had allegedly received Kshs. 110,000/- from the appellant. Accordingly, the trial Magistrate held that the application did not raise any new evidence and proceeded to dismiss it, with costs to the respondent. The Appeal 20.Aggrieved, the appellant filed a Memorandum of Appeal, amended on 27th June 2025 raising 14 grounds of appeal, challenging both findings of fact and law, that the learned trial Magistrate erred:i.In law and fact in dismissing the appellant’s application for the re-opening of the case without fully addressing the issues raised in the application.ii.In law and fact when she failed to appreciate the fact that there was evidence that the appellant had paid Kshs. 110,000/- to the respondent but at the time of hearing he had misplaced the evidence confirming that payment had been made.iii.Failed to appreciate the fact that even if there was no evidence brought to show that payment had been made to one Vincent Onyango, there was evidence that the respondent had acknowledge receipt of Kshs. 110,000/- from the appellant.iv.In law and fact when she failed to appreciate the fact that the evidence wanted to tender was his proof that he had paid the respondent Kshs. 300,000/- leaving a balance of Kshs. 280,000/- as the appellant stated in his pleadings.v.In law and fact when she failed to appreciate the fact that the letter dated 15th September 2022 would have supported the appellants claim that he had paid Kshs. 110,000/- to the respondent and the said payment had been acknowledged by the respondent through the said letter.vi.In law and fact when she failed to appreciate the fact that the respondent had misled the court and failed to furnish all the documents showing the payments made by the appellant.vii.In failing to appreciate the fact that communication made on ‘without prejudice’ basis is admissible in court as evidence.viii.In failing to appreciate the fact that the purpose of the production of the letter dated 15th September 2022 was to show that the respondent had acknowledged the receipt of Kshs. 300,000/-.ix.In law and fact when she failed to appreciate the fact that the respondent came to court with unclean hands.x.In law and fact when failed to appreciate the fact that the respondent is using the Judiciary to unlawfully enrich himself and was guilty of gross material non-disclosure.xi.In failing to appreciate the provisions of Article 159 of the Constitution when she failed to do justice to the appellant by arbitrarily dismissing the appellant’s application.xii.In law and fact when she disregarded the appellant’s pleadings, evidence and documents.xiii.In failing to appreciate and properly interpret the provisions of Section 43 of the Small Claims Courts Act when she failed to do justice to the appellant by arbitrarily dismissing the appellant’s application.xiv.In failing to appreciate the provisions of Section 107 of the Evidence Act when she failed to appreciate that the appellant by his application wanted to prove the existence of certain facts that he had pleaded in his defence. 21.Though served, the respondent did not file its submissions to the appeal. The Appellant’s Submissions 22.In its submission dated 30th September 2025, the appellant submitted on 4 issues. On the first issue, he argued that the trial court erred in dismissing the application to reopen the case, contending that the delay of 11 months was sufficiently explained. In his view, the trial Magistrate adopted a rigid approach that led to a miscarriage of justice contrary to Articles 50 and 159 of the Constitution. 23.As to whether the learned Adjudicator erred by failing to appreciate the evidence of payment presented by the appellant, it was the appellant’s case that the letter dated 15th September 2022 would have confirmed payment of Kshs. 110,000/-. He added that he had also since obtained WhatsApp messages and an M-Pesa transaction confirmation that would further corroborate this payment. 24.Turning to whether the learned Adjudicator erred by failing to consider the principles of agency in relation to the payments made, the appellant posited that the M-Pesa confirmation message showing that Joseph Kang’ara, the respondent’s director, received Kshs. 110,000/- provided the nexus between Vincent and the respondent. This, in his view, was proof of an agency relationship between Vincent and the respondent. In the alternative, he argued, by receiving and retaining Kshs. 110,000/-, Joseph Kang’ara an agent of the respondent, legally bound his principal. 25.Finally, with respect to whether the respondent engaged in unlawful conduct by misleading the court and seeking unjust enrichment, the appellant averred that the respondent acted in bad faith by concealing prior acknowledgment of a lower outstanding balance, thereby seeking unjust enrichment. 26.With respect to the ‘without prejudice’ heading in the letter dated 15th September 2022, the appellant relied on Ongata Rongai Total Filling Station Ltd. vs Industrial & Commercial Development Corporation [2009] KEHC 3815 (KLR), for the proposition that the same was admissible to prove indebtedness. ANALYSIS AND DETERMINATION 27.I have carefully considered the appeal, rival submissions, statutory and jurisprudential framework. Arguably, some of the grounds of appeal are thinly-veiled attempts to appeal against the impugned judgment while others contest factual findings. Cognizant of this Court’s jurisdiction under Section 38 of the Claims Courts Act limited to matters of law, I find that this appeal turns on one issue: whether the trial Magistrate correctly exercised her discretion in dismissing the appellant’s application dated 7th December 2023. 28.It is settled law that while courts have the power to reopen a case, the same is discretionary. It is trite law that discretion should be applied judiciously with the aim of doing justice to both parties. However, this Court can interfere with the lower court’s exercise of discretion under very special circumstances, to wit, where the trial court:i.Misdirected itself in law;ii.Misapprehended the facts;iii.Took into account considerations it should not have;iv.Failed to take into account considerations of which it should have taken account; orv.Erred in exercising its discretion.See United India Insurance Co. Ltd. vs East African Underwriters (K) Ltd. [1985] E.A. 898 29.As to the law on reopening cases, the court in Susan Wavinya Mutavi vs Isaac Njoroge & Another [2020] KEELC 8 (KLR) interrogated the issue and crystallized the following considerations:i.The jurisdiction is discretionary which should be exercised judiciously and such reopening should not embarrass or prejudice the opposite party.ii.Where the reopening is intended to fill gaps in evidence of the applicant, the court will not grant the plea.iii.The plea for re-opening of a case will be rejected if there is inordinate and unexplained delay on part of the applicant.iv.The applicant is required to demonstrate that the evidence he seeks to introduce could not have been obtained with reasonable diligence at the time of hearing of his case.v.The evidence must be such that, if admitted, it would probably have an important influence on the result of the case, though it need not be decisive.vi.The evidence must be apparently credible, though it need not be incontrovertible. 30.In the instant appeal, the appellant contended that the trial court failed to appreciate that he had offered a plausible reason for failing to adduce the additional evidence during trial, that is, he only came across the evidence after Judgment was delivered. He also urged that the new evidence in the nature of the letter dated 15th September 2022 would have confirmed payment of Kshs. 110,000/-. He added that he had since obtained M-Pesa confirmation and Whats-App messages to confirm the said payment.31.The trial court on its part declined the application on the basis that the appellant had not provided evidence linking Vincent Onyango to the respondent.32.These are the circumstances this Court is called upon to examine whether the trial court properly exercised its discretion.33.Looking at the proceedings of 12th January 2023, the trial court, upon the appellant’s request, granted him time to avail an M-Pesa statement evidencing payment of Kshs. 110,000/- to Vincent Onyango. Equally, during trial, the appellant reiterated that he paid Kshs. 110,000/- to Vincent Onyango, the respondent’s engineer. The appellant has not demonstrated any impediment that prevented him, with reasonable diligence, from obtaining and producing his own M-Pesa statements at trial. Such evidence was at all times within his control.34.Furthermore, despite making reference to the M-Pesa statement, in its submissions before this Court, the same was neither presented to the trial court nor before this Court to confirm the appellant’s assertions. The same case applies to the alleged WhatsApp messages alluded to by the appellant. Without this evidence, this Court cannot make further inquiry as to whether there existed a principal-agent relationship between Vincent Onyango and the respondent.35.It is therefore my finding that the alleged evidence the appellant sought to adduce was only meant to fill gaps in evidence. Furthermore, I find and hold that allowing the appellant to adduce the same would have prejudiced the respondent by reopening a matter that had not only been fully litigated, but also subjected to post-judgment settlement through a consent order.36.Section 43 of the Small Claims Court Act must be read as embodying a restrictive review jurisdiction. It does not permit a party to reopen proceedings to cure evidentiary gaps. It must be invoked within the established principles governing review, including the requirement of due diligence and the existence of new and material evidence.37.I have also considered the letter dated 15th September 2022 for which the appellant made heavy weather. At the outset, the same bears the marking ‘without prejudice’ which in legal parlance generally means the same is inadmissible under Section 23(1) of the Evidence Act. The rule has certain exceptions, which include: “… when there has been a binding agreement between the parties arising out of it, or for the purpose of deciding whether such an agreement has been reached, and to the fact that such communications have been made is also admissible to show that negotiations have taken place, but not is contents, which are otherwise not admissible...” See Heineken East Africa Import Company Ltd. & Another vs Maxam Ltd. (Civil Appeal E403 & E404 of 2020 (Consolidated)) [2024] KECA 625 (KLR). 38.While I am inclined to believe that the impugned letter was issued on the instruction of the respondent, I am not convinced that the same falls within the exceptions as set out above. First, there is no binding agreement that appears to have emanated from the same. Secondly, it does not signal that there were negotiations confirming the payment of Kshs. 110,000/-. Accordingly, the said letter was inadmissible, and could not, even if admitted, have altered the outcome. 39.While the appellant relied on Ongata Rongai Total Filling Station Ltd., that authority is distinguishable as it concerned circumstances where the communication was admitted to demonstrate an admitted indebtedness, which is not the case herein. 40.Beyond the foregoing, this Court must underscore the principle of finality in litigation. It is a fundamental tenet of the administration of justice that disputes must, at some point, come to an end. Litigation must come to an end. Courts should not permit reopening of concluded matters to enable a party to fill gaps in its case. In this instance, the matter had been determined and a consent recorded. Reopening it would prejudice the respondent and undermine the finality of the court process. 41.In the circumstances, I find no basis upon which to interfere with the trial court’s exercise of discretion. Accordingly, the appeal lacks merit and is hereby dismissed. Viewing as the respondent did not participate in the appeal, I make no award on costs.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JULY 2026.DAVID MBURUJUDGEIn the presence of:Mr. Wanyanga for the AppellantMr. Arunda for the RespondentKalunda - Court Assistant