Badalu Workers Agency Limited Limited v Kiboy (Claim E26079 of 2024) [2025] SCC 70 (KLR)
The bottom line
#A Kenyan Small Claims Court ordered a respondent to hand over M-PESA statements, confirming that citing the wrong law in an application is not fatal unless it prejudices the other side.
What this practically means
#Executive summary
#Key legal issues
#Effect of grounding a discovery application on the wrong provisions of the law
The defect was not fatal; under Rule 32 of the Small Claims Court Rules no pleading or document is rejected for want of form, and the court adopted the prejudice test from Ryce Motors Ltd v Jonathan Kiprono Ruto.
The court acknowledged that discovery applications ought to be grounded on section 22 of the Civil Procedure Act, not sections 18 and 34(4)(e) of the Small Claims Court Act. However, Rule 32 of the Small Claims Court Rules disallows rejection of documents for want of form. Relying on Ryce Motors Ltd v Ruto, the court applied the test of whether the Respondent was prejudiced by the faulty drafting, answering in the negative since the Respondent knew clearly the application she faced.
Whether the discovery application was made too late in the day
The application was not out of time because section 22 permits discovery applications at any time, and the hearing had not begun though pleadings were closed.
Section 22 of the Civil Procedure Act empowers the court to order discovery at any time, either on its own motion or on a party's application. The discretion is exercised judiciously and depends on the stage the matter has reached. Since the hearing was yet to begin and there is no law disallowing discovery merely because pleadings closed, the Respondent's timeliness objection failed.
Whether the M-PESA statements sought were relevant and necessary
The statements were relevant, within the Respondent's exclusive possession, and went to the crux of the claim and counterclaim concerning alleged employment of Damary Nabalayo Okoroi post-termination.
The claim concerned whether the Respondent breached Clause 9 of the Employment Agency Agreement by engaging Damary Nabalayo Okoroi within six months of termination. The Respondent had voluntarily disclosed M-PESA records for July and August 2024, confirming materiality. The documents were within the Respondent's knowledge and possession, and would assist in proving or disproving the Claimant's case for fair and expeditious disposal.
Legal principles established
#- Citation of a wrong order or rule is not necessarily fatal to an application; the test is whether the other party was prejudiced.
- Under section 22 of the Civil Procedure Act, an application for discovery may be made at any time in the course of proceedings, and closing of pleadings is not a ground to disallow it.
- Discovery will only be allowed where the documents sought are within the scope of the dispute, and may be refused where it is a fishing expedition.
Court orders
#- 1.The Respondent to produce and serve upon the Claimant the M-PESA statements for her line number 0743377491 covering the period 1st September 2024 to 30th March 2025, within fourteen (14) days of the ruling, failing which the Respondent's Response to the Claim and Counterclaim will stand struck out with costs
- 2.Each party to bear their costs of the Application
- Jurisdiction invoked
- Sections 18 and 34(4)(e) of the Small Claims Court Act; Rule 32 of the Small Claims Court Rules; section 22 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Badalu Workers Agency Limited Limited v Kiboy (Claim E26079 of 2024) [2025] SCC 70 (KLR)", Case Analysis (2025). Small Claims Court claim at Bungoma (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2025/70/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.