[2022] KEHC 13531 (KLR)

Uniglobe Northline Travel Limited v Maverick Picture Works Limited (Civil Appeal E045 of 2022) [2022] KEHC 13531 (KLR) (Commercial and Tax) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13531 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Appeal E045 of 2022

DAS Majanja, J

October 7, 2022

Between

Uniglobe Northline Travel Limited

Appellant

and

Maverick Picture Works Limited

Respondent

(Being an appeal from the Judgment and Decree of Hon C A Okumu, RM/Adjudicator dated 18th March 2022 at the Small Claims Court at Nairobi in SCCOMM No 1009 of 2021)

Judgment

1. The small claims court dismissed the appellant’s claim seeking judgment for Kshs 426,805. 00 and USD 140. 00 on account of travel agency services rendered to the respondent between 2013 and 2018.

2. The claim was set out in the statement of claim dated November 26, 2021. The respondent denied the claim in its response to the statement of claim. The parties each called one witness at the hearing where after they filed written submissions. In the judgment, the court held that there was a contract between the parties and that the respondent owed the appellant the amount claimed on account of travel agency services rendered. The court also held that the appellant’s claim was time barred from the year 2013 as the cause of action arose on September 10, 2013 and lapsed on September 10, 2019.

3. Aggrieved by the judgment, the appellant filed this appeal grounded on the memorandum of appeal dated April 13, 2022. The substance of the appeal is that the court erred in considering the issue of limitation notwithstanding the appellant’s objection that the issue was not pleaded as envisaged under Order 2 rule 4(1) of the Civil Procedure Rules. It complains that the court erred in holding the claim was time barred notwithstanding the appellant’s unchallenged evidence that the cause of action accrued in 2016 premised on the arrangement between itself and the respondent.

4. Under section 38(1) of the Small Claims Court Act, 2016 an appeal to this court is limited to matters of law only. Accordingly, the court is not permitted to substitute the subordinate court’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the findings are so perverse that no reasonable tribunal would have arrived at them (John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others [2018] eKLR).

5. The adjudicator found as a fact that the appellant provided services to the respondent and was thus truly indebted but dismissed the claim on the ground that it was time barred. There was no cross appeal by the respondent on the finding of indebtedness. The question of law this court is called upon to determine is whether the plea of limitation ought to have been considered in the absence of the plea in the response to the claim in accordance with the provisions of the Civil Procedure Rules.

6. The appellant relies on Order 2 rule 4(1) of theCivil Procedure Rules which states, in part, as follows:4(1) A party shall in any pleading subsequent to a plaint plead specifically any matter, for example, performance, release, payment, fraud, inevitable accident, act of God, any relevant statute of limitation or any fact showing illegality –a.which he alleges makes any claim or defence of the opposite party not maintainable;b.which, if not specifically pleaded, might take the opposite party by surprise; orc.which raises issues of fact not arising out of the preceding pleading.

7. The said provision has been subjected to several decisions. In Stephen Onyango Achola & another v Edward Hongo Sule and Another NRB Civil Appeal No 209 of 2004 [2004] eKLR, the Court of Appeal held that a party must plead the issue of limitation in its defence. In Abdullahi Ibrahim Ahmed (Suing As The Personal Representative Of The Estate Of Anisa Sheikh Hassan (Deceased)) v Lem Lem Teklue MuzoloNRB CA Civil Appeal No 278 of 2005 [2013] eKLR, it reiterated as follows:In terms of Order 2 rule 4 (1) the issue of limitation must be specifically pleaded before a court can act on it.In the case of Achola & Another v Hongo & Another LLR No 4007 [CAK] this court quoting Halsburys Laws of England, fourth edition, volume 36 at paragraph 48 page 38 headed; “Matters which must be specifically pleaded” stated;“The defendant must in his defence plead specifically any matter which he alleges makes the action not maintainable or which, if not specifically pleaded might take, the plaintiff by surprise or which raises issue of fact not arising out of the statement of claim. Examples of such matters are performance, release, any relevant statute of limitation, fraud or any act showing illegality.”

8. The appellant’s appeal is grounded on the provisions of the Civil Procedure Rules yet they do not apply to the small claims court. The small claims court is a subordinate court established under the Small Claims Court Act , 2016 (“the SCCA”). Under section 50 of the of the SCCA, the Chief Justice is empowered to make rules of practice and procedure for the better functioning of the court hence the Small Claims Court Rules, 2019 (“the rules”) were enacted.

9. As regards the nature of the defence, rule 9(1)(c) of the rules provides that the respondent may deny the whole or part of the claim, giving reasons for denial. Unlike the Civil Procedure Rules, the rules do not prescribe how the respondent should plead its defence. This lack of detail in the rules is based on the nature of the small claims court which is intended to ensure that small claims are dealt with efficiently without the burden of strict rules and at minimum cost to the parties. In making the rules, the Chief Justice is guided by the section 3 of the SCCA which states as follows:3. Guiding principles(1)In exercise of its jurisdiction under this Act, the court shall be guided by the principles of judicial authority prescribed under article 159(2) of the Constitution.The parties and their duly authorized representatives, as the case may be, shall assist the court to facilitate the observance of the guiding principles set out in this section, to that effect, to participate in the proceedings of the court and to comply with directions and orders of that court.(3)Without prejudice to the generality of subsection (1) the court shall adopt such procedures as the court deems appropriate to ensure—(a)Without prejudice to the generality of subsection (1) the court shall adopt such procedures as the court deems appropriate to ensure—(b)equal opportunity to access judicial services under this Act;(c)fairness of process; and(d)simplicity of procedure.

10. In addition, rule 31 provides that, “In the conduct of proceedings before it, the court shall not be bound by the strict rules of procedure or evidence.’’

11. It must now be clear that the appellant’s appeal grounded on theCivil Procedure Rules must fail as the small claims court is governed by its own rules of procedure. What is important is the court is guided by principle of fairness of process. Thus, the court is bound to inquire whether the procedure was fair to the parties. In this case, it is whether the appellant had fair notice of the defence that that the claim was statute barred.

12. Although the defence of limitation was not pleaded in the response to the claim, the respondent’s director in his witness statement stated as follows in para. 4:(4)[T]he claim is defective having been lodged outside the limitation period for breach of contract contrary to section 4 of the Limitation of Actions Act ….. The cause of action herein (if true) arose on September 10, 2013 when the amount of Kshs 426,805 fell due.

13. I find and hold that the appellant therefore had notice that the respondent was relying on the law of limitation as a defence. Further, the parties extensively submitted on the issue which enabled the adjudicator make a finding on the issue. The ‘’fairness in procedure’’ requires the parties to have notice of each other’s case, have sufficient time to prepare that case and then be given an opportunity by the court to present that case irrespective of the technical defects in the pleadings. I hold that this approach before the small claims court is consistent with nature and objectives of that court. I therefore cannot fault the adjudicator for dealing with an issue that was at the centre of the parties’ dispute and which he was called upon to determine.

14. It is clear that this appeal lacks merit. It is therefore dismissed with costs to the respondent assessed at Kshs 30,000. 00.

DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF OCTOBER 2022. D. S. MAJANJAJUDGECourt Assistant: Mr M. Onyango.Mr Abidha instructed by Abidha and Company Advocates for the Appellant.Mr Omemo instructed by J M Kirimi and Company for the Respondent.