https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8528

Turning Point Freight Services Limited v AK Chemicals Limited & another (Civil Appeal E371 of 2025) [2026] KEHC 8528 (KLR) (15 June 2026) (Judgment) Neutral citation: [2026] KEHC 8528 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E371 of 2025 PK Rotich, J June 15, 2026 Between Turning Point Freight Services Limited Appellant and AK Chemicals Limited 1st Respondent Seven Seas Shipping Agencies Limited 2nd Respondent (Being an appeal from the Judgement of Hon.Gatambia Samuel Ndungu (Adjudicator) delivered on 28th October 2025 in Mombasa SCCCOM. No. E915 of 2025) Judgment 1This appeal arises from the Judgement of Hon.Gatambia Samuel Ndungu (Adjudicator) delivered on 28th October 2025 in Mombasa SCCCOM. No. E915 of 2025 In June 2023, the 1st respondent engaged the appellant for shipment of assorted chemical products. In its statement of claim, the 1st respondent avered that the parties agreed that in the event that the 1st respondent suffers any loss due to or arising directly from negligence, act or omission, breach of duty, insolvency and recklessness as a result of the appellant’s failure to provide care, then the appellant would indemnify the 1st respondent to the extent of such loss. 2.In its response, the appellant through its statement of response denied the 1st respondent’s claim contending that the claimant consignment was handled by other agencies such as KPA KRA, KEBS and the shipping line (2nd respondent). The appellant also contended that 1st respondent appointed its own transporter to transport its cargo from Mombasa to Nairobi and as such, at no point was the cargo ever in the care and custody of the respondent. Further, the appellant filed Third Party Notice against Seven Sees Shipping Agencies Limited(K) claiming it was paid the amount claimed herein based on invoice raised by the appellant to the 1st respondent. 3.The 1st respondent witness Janet Ndunge, its Operations manager, stated that the 1st respondent entered into an agreement with the appellant as a service provider for clearing and forwarding of assorted chemical products. It was an express term and condition of their agreement, the 1st respondent contended, that the appellant would be its prime contractor with full responsibility for its sub-contractors and agents and had to ensure they comply with all aspects of the agreement. It was, further, express term and condition of their agreement, the 1st respondent submitted, that the appellant would indemnify the claimant for any losses, claims, demands, damages and expenses the 1st respondent may suffer due to or arising directly from the negligence, act or omission, breach of contract, breach of duty, insolvency or recklessness as a result of its failure to provide care. 4.By way of invoice No. 1563 issued on 23.3, 2024, the 1st respondent witness stated, the 1st respondent incurred a cost of Kshs.297,000 being replacement of a container. The witness also stated that the appellant through its sub-contractor Seven Seas Shipping Agencies(K) Limited was responsible for making the replacement. 5.Upon payment of the aforesaid amount, the 1st respondent’s witness stated, the container never released to it despite numerous requests to do so, which requests have been blatantly ignored and or refused. In addition to the above costs of replacement of container, the 1st respondent witness stated, the 1st respondent incurred a cost of Kshs.15,000 indicated as facilitation fees and Kshs.7920 being demurrage and detention costs. 6.The appellant’s witness Muigai Thuo who is its General Manager admitted that the appellant was engaged by the 1st respondent to specifically clear a container that were consigned via Seven Sees Shipping Agencies(K) Limited container number SLLV 2349574 under bill of lading number SAS 110950GF1230.The witness, further, stated that the appellant was notified by the CFS Operator of leakage from the container consigning Acetic acid.Quick intervention, the appellant’s witness stated, had the container segregated to reduce damage to other goods in the facility and the claimant was immediately notified of the leakage. The container, was, however, cleared and the 1st respondent’s goods were delivered to Nairobi where it was noted 8 drums were damaged.The container was returned to Mombasa on 19.2.2024 in addition to detention charges invoiced Kshs.7920 was raised before the container was dropped back. 7.Based on the evidence on record, the respondent the trial adjudicator found the appellant liable for the loss and entered Judgement against it in favour of the 1st respondent against the appellant for the sum of Kshs,297,000. Being dissatisfied with the trial court adjudication, the appellant filed this appeal. The appeal is based on 8 grounds, which can be summarized as follows:1.The learned adjudicator rendered a judgement that was statute barred under the provisions of the Small Claims Court Act.2.That the learned Adjudicator erred in failing to consider the fact that the 2nd respondent failed to appear and to file a response to the claim in the trial Court and therefore, draw an inference amenable to any judgement that would have been rendered against it3.That the learned adjudicator erred in law by holding that 1st respondent had proved it case on a balance of probabilities 8This appeal was argued by way of written submissions. On the ground that the Judgement rendered by trial adjudicator herein was time barred, the appellant in its submissions drew the Court’s attention section 34 of the Small Claims Court. Section 34 of the Small Claims Court Act states that:“(1)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’’(2)Judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing.(3)The Court may only adjourn the hearing of any matter under exceptional circumstances which shall be recorded.” 9In respect to above provisions, the appellant pointed out the 1st respondent filed its claim on 13th August 2025 and subsequently, the trial court issued the a mention notice to the 1st rrespondent on the same date. The 1st respondent, appellant contended, however, sat on its obligation to serve the appellant with the Statement of Claim together with the supporting documents and the notice of 1st mention on the 1st September 2025, when the matter came up for mention. 10.The Judgment of the trial court, the appellant further pointed out, was delivered on the 28th October 2026 which is seventy-six (76) after the filing of the 1st Appellant’s claim in the trial Court and sixteen (16) days outside the sixty (60) days provided for under section 34 of the Small Claims Court Act. Had the 1st Respondent served their Statement of Claim immediately upon receiving the notice of first mention/appearance by the trial court, the appellant submitted, the trial court would have cured the claim to have its judgment delivered within the stipulated time. The 1st respondent, the appellant also pointed out, did not advance reasons for the delay in serving the Statement of Claim together with the attachments and was, therefore, guilty under the doctrines of equity which dictate that he who seeks equity must come with clean hands. 11.The 1st respondent, further, avered that section 34 of the Small Claim Court Act is couched on mandatory terms and does not provide for extension of the sixty (60) days given making any judgment delivered after the time limitation null and void ab-initio. 12.In making the above submissions the appellant relied on the case of Maganjo –vs- Nyajuoga & another (Civil Appeal E621 of 2022) [202] KEHC 18860 (KLR) (Civ) (15th December 2025) Judgment),in which the High Court sitting at Nairobi (Milimani Law Courts) observed in paragraph 4 of its judgment that;“The material in the Record of Appeal is unclear, as to the date when the Claim was filed at the Small Claims Court. The statement of claim is dated 3rd January 2022. The Respondent appeared vide a notice, dated 8th April 2022 and filed a response dated 7th April, 2022. The matter was first mentioned before the Adjudicator on 4th April 2022, which would mean that the claim had been filed before that date. If 4th April, 2022, is taken to be the effective date of filling, 60 days, from 4th April, 2022, would lapse on or about 4th June, 2022. A judgement delivered on 8th July 2022 would therefore be well outside the sixty (60) days allowed under Section 34(1) of the Small Claims Court Act. That would make the that judgment a nullity. The Trial Court had lost jurisdiction by 4th June 2022. It would not have jurisdiction to go on to deliver a valid judgment thereafter. It ought to have downed its tools in line with Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1 [1989] eKLR [1989] KECA 48 (KLR) (Nyarangi, Masime & Kwach, JJA).’’ 13.On the ground the trial Court was justified in delivering a judgment that was exclusively touched the aappellants while remaining muted on the case against the 2nd Respondent herein, the Appellant refered the Court to Order 1 Rule 17 of the Civil Procedure Rules 2010. The said Order states:“If a person not a party to the suit who is served as mentioned in rule 15 (hereinafter called the “third party”) desires to dispute the plaintiff’s claim in the suit as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party must enter an appearance in the suit on or before the day specified in the notice; and in default of his so doing he shall be deemed to admit the validity of the decree obtained against such defendant, whether obtained by consent or otherwise, and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third party notice:…” 14Order 1 Rule 19 of Civil Procedure Rules 2010 states that; -1.Where a third party makes default in entering an appearance in the suit, and the suit is tried and results in favour of the plaintiff, the court may either at or after the trial enter such judgment as the nature of the suit may require for the defendant giving notice against the third party: Provided that execution thereof shall not be issued without leave of the court, until after satisfaction by such defendant of the decree against him.2.If the suit is finally decided in the plaintiff’s favour, otherwise than by trial, the court may, upon application ex parte supported by affidavit, order such judgment as the nature of the case may require to be entered for the defendant giving the notice against the third party at any time after satisfaction by the defendant of the decree obtained by the plaintiff against him.” 15.Relaying on the above provisions of law, the aappellant pointed out that it filed a Thid-Party Notice dated 16th September 2025 introducing the 2nd respondent to the Claim before the trial Court. The said Notice, the appellant stated, was served upon the 2nd Respondent on 25th September 2025 and certificate of Service filed to that effect. 16.The 2nd rrespondent, however, the 2nd respondent pointed out, failed to enter appearance and/or file a statement of response. Failure by the 2nd rrespondent to enter appearance and defend the third-party notice and claim, the appellant submitted, rendered the 2nd Respondent liable to any Judgment and that trial court would have drawn an inference that the 2nd respondent was agreeable to the aappellant’s claim against it. 17.In response, the 1st respondent submitted that the trial court delivered a judgment that was proper and anchored in law and that the same should be upheld as it were. On the ground the trial court had jurisdiction to deliver the judgment after the lapse of the 60 days, the 1st respondent submitted that the import of section 34 of the Act is for the expeditious disposal of all proceedings and not to interfere with the discretion of the court as to the handling of proceedings. Whereas, the Act provides for the timelines, the 1st respondent submitted, the Court itself has the flexibility to render the judgment outside the stipulated timeline owing to fact that the said provision is directory and not mandatory. 18.The phrase, ‘so far as is practicable in the circumstances’ as used in section 34(1) of the Small Claims Court Act, the 1st respondent submitted, meant that where the circumstances rendered it impossible to deliver judgment within the 60-day period, then the judgment of the Small Claims Court would still be valid.Despite the afore-stated section is couched on mandatory terms, the 1st respondent submitted, it does not vitiate any judgment delivered by courts after the said term. In making this proposition the 1st respondent placed reliance on the ruling of Magare J in Biosystems Consultants versus Nyali Links Acarde (Civil Appeal E185 of 2003) 2023] KEHC 21068 (KLR) (31 July 2023) where the learned Judge held that:“The legislative intent of section 34 of the Small Claims Court Act was not to impose unnecessary bottlenecks. Even tax statutes had timelines for paying or declaring taxes. It was never that non-payment made those taxes void. There should be consequences. In the Income Tax Act, the non-compliance with deadlines did not vitiate the taxes. It attracted known penalties. What were the consequences under section 34 of the small claims court?…A purposive interpretation should be given to statutes so as to reveal the intention of the statute.The purpose of the Small Claims Act was to facilitate expeditious disposal of disputes while at the same time respecting the right to be heard. The net result was that balancing the two may result at times to overshooting the 60 days. The 60 days did not have penal consequences for good reason. They were aspirational. They were part of having access to justice over amounts that needed not be in the normal system. Allowing the application would open floodgates that would eventually defeat the purpose of the act” 19.Similarly in the case of Crown Beverages Limited vs MFI Document Solutions Limited (Civil Appeal E833 of 2021) [2023] KEHC 58 (KLR) (Civ) (17 January 2023) (Judgment), the 1st respondent further submitted, Justice Majanja stated as follows: -“Although section 34(2) of the SCCA is couched in mandatory terms, the court must look at the context of the provision in light of the guiding principles which include, inter alia, the timely disposal of all proceedings before the court using the least expensive method. The provision as to delivery of judgment is meant to be directory and not mandatory as it is not the intention of the SCCA to invalidate any proceedings that violate the statutory timelines. To adopt such a position would undermine the statutory objects and cause injustice to the parties as the case would have to be reheard.The issue of breach of timelines for delivery of judgment is not a novel issue and has been dealt with by our courts in reference to order 21 rule 1 of the Civil Procedure Rules which provides that judgments must be delivered within 60 days upon conclusion of the hearing. In Nyagwoka Ogora alias Kennedy Kemoni Bwogora v Francis Osoro Maiko Civil Appeal No 271 of 2000 (UR) the Court of Appeal observed as follows:The real question is what is the consequence of non-compliance therewith? no doubt that rule is an important one in the expeditious dispensation of justice. And it is made to be obeyed. However, if non-compliance with the rule were to have the effect contended for by the appellant, we think the overall result would be more injustice than justice to the parties. A lot of time and resources spent in litigation would come to naught if judgments delivered after the expiry of 42 days were to be voided or declared void ipso facto. The rule cannot and in our view could not have been intended to deprive a trial judge of his jurisdiction to write and pronounce judgment in a case he has heard. In our considered view, while non-compliance with the rule and particularly persistent non-compliance or inordinate delay in compliance should call for censure of the judicial officer concerned from those in-charge of judicial administration, it should not be a ground for vitiating a duly delivered judgment.Being of that persuasion we would reject ground 1 of appeal.11.There may be instances where the delay is inordinate and such delay prejudicial to the parties. In such cases, the court may set aside the judgment as was held by the Court of Appeal in Manchester Outfitters Services Limited and Another v Standard Chartered Financial Services Limited and Another [2002] eKLR. The appellant does not contend that the failure to deliver the judgment within the stipulated timelines was prejudicial or that the delay was inordinate. I therefore reject the appellant’s contention that the judgment is null and void.” 20.Lastly, the 1st respondent relied on the case of Wekesa v Matata (Civil Appeal E685 of 2022) [2024] KEHC 8284 (KLR) (28 June 2024) (Judgment) Justice Njagi stated: -“I take the view postulated in the latter case that non-compliance with the section is not fatal to a case. The court has to look into what the intention of the legislature was when it passed the section. I do not think that the legislature intended to mean that the court ceased to exercise jurisdiction over a matter filed in that court which was not finalized within 60 days. If that were the case, it would defeat the purpose of the whole Act. I thereby dismiss the argument that the judgment of the Adjudicator in this matter was a nullity” 21.It was, therefore, the 1st respondent submitted that the trial court had jurisdiction to deliver the judgment notwithstanding the timeline it was delivered under. 22.On the ground that the learned adjudicator erred in law by holding that 1st respondent had proved its cases on a balance of probabilities, the 1st respondent submitted that documentary evidence produced by the Respondent at trial demonstrate that the aappellant herein entered into an agreement with the 1st rrespondent as a service provider for clearing and forwarding of assorted chemical products into Kenya.In this regard, the 1st respondent submitted that parties to a contract are bound by it unless otherwise varied by the parties. This position, the 1st respondent submitted, was affirmed in the case of Total Kenya Ltd v Joseph Ojime, Nairobi HCCC No. 1243 of 1999, the court stated:“Parties to a contract that they have entered into voluntarily are bound by its terms and conditions.” 23.The 1st respondent also relied on the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2002] 2 EA 503, the Court held:“A court of law cannot rewrite a contract between parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved…” 24.Under the contract in existence between the aappellant and the 1st Respondent, the appellant submitted, the aappellant was under the obligation to replace the container.and the value for the replacement was for Kshs.297, 000 demonstrated by the invoice issued No.1563 thereto by the appellant. 25.Although the 3rd party did not participate in the trial court, it submitted in this appeal that the appellant had an exclusive engagement among themselves which did not include any other party. The Third Party, therefore, submitted the appellant can not seek indemnity against a party who is not a party to their contract. 26.The Court has carefully re-evaluated the evidence adduced before the trial Court. It has also considered the evidence submissions by the parties. This being first appeal the Court is obligated to re-evaluate the evidence adduced in the trial in order to arrive at its own independent conclusion bearing in mind that it has neither seen or heard the witness and should make allowance in this respect (see: Selle vs Associated Motor Boat Company (1968) EA). Having analyzed the evidence on record, the pleadings and submissions by the parties, the court only identified two issues for determination. The issues are:1.Whether the Judgement rendered by the trial Court is statute barred2.Whether the 2nd respondent is liable for the for the claim of Kshs.297,0003.Whether the 1st respondent proved its claim against the appellant on a balance of probabilities4.Who shall pay the costs of this appeal and costs of the trial. 27.On whether the Judgement herein is time barred and a nullity because it delivered after 60 days, the Court notes there are two conflicting positions propounded by the High Court relied by the appellant and the 1st respondent in their submissions. The Court is persuaded by the position of taken by the High Court in Biosystems Consultants versus Nyali Links Arcade, Crown Beverages Limited vs MFI Document Solutions Limited and Wekesa v Matata cases relied by 1st respondent. The Court concurs with the 1st respondent’s submissions that whereas the Section 34 of the Small Claims Act provides for the timelines, the the court itself has the flexibility to render the judgment outside the stipulated timeline owing to fact that the said provision is directory and not mandatory. The Court also agrees with the phrase, ‘so far as is practicable in the circumstances’ as used in section 34(1) of the Small Claims Court Act is meant to take care of situations where the circumstances rendered it impossible to deliver judgment within the 60- day period. It is, therefore, this Court’s finding that of Small Claims Court Judgement herein was not was not barred by statute and the same is valid. 28.The 2nd respondent, however, failed to enter appearance and/or file a statement of response. Failure by the 2nd Respondent to enter appearance and defend the third-party notice rendered the 2nd rrespondent liable for the of Kshs.297,000 before the trial court. This position is clearly is supported by the provisions of Order 1 Rules 17 and 19 cited by the appellant above. In this respect, it is the Court’s finding that the trial adjudicator erred in law by failing to consider in his judgement the 1st respondent’s Third-Party notice against the 2nd respondent which was not defended. The submissions filed by the Third Party at appeal stage can not constitute its defence. Having found that the Third-party is fully liable to satisfy the Judgement sum awarded in the trial court, the Court needs not consider the merits of the 1st respondent’s case. 29.Based on the Court’s findings above, this appeal succeeds and the Court grants the following prayers:1.That the appeal be allowed2.That the Judgement of the Small Claims Court herein delivered on 28th October, 2025 is set aside and substituted with an order allowing the appellant’s claim against 2nd respondent.3.That the costs of the appeal and the cost of the trial Court be paid to the appellant and 1st respondent by the 2nd respondent DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS THIS 15TH DAY OF JUNE 2026HON. P.K. ROTICHJUDGE