Hannah Wambui Njenga v Anne Muthoni Waweru

5. In her defence, the Appellant denied the claim and argued that the relevant authorities declined to approve the subdivision of the 50 by 50 plot, citing its insufficient size. This, she claimed frustrated the contract. She referred to Clause E of the “Special Conditions” in the Sale Agreement, which provided that if subdivision if subdivision approval was denied, both parties would consolidate their adjacent parcels and thereafter seek approval for subdivision that would include the respondent intended purchase. However, the Appellant allege that the Respondent allegedly breached and frustrated this process by refusing to consolidate her parcel and instead proceeded to sell her parcel to a third party. 6. The Appellant also contend that the Respondent delayed in making payments and failed to demonstrate that she was ready and willing to perform her part of the bargain. She further averred that the Respondent never issued any completion notice and, therefore, the claim was premature. 7. The Appellant maintained that she refunded the full amount of Kshs.1,000,000, having paid Kshs.850,000 directly to the Respondent and a further Kshs. 150,000 through her advocates. She asserted that the Respondent, allegedly declined to collect the latter amounts from her advocates for personal reasons. 8. The matter proceeded to full hearing after which the trial court entered judgment in favour of the Respondent herein in the following terms: a. Kshs.150, 000 being the balance of the purchase price. b. Kshs.400, 000 being the penalty for breach of the agreement. c. Costs d. Interest on (a), (b) and (c) at court rates from the date of the judgment until payment in full. 9. Aggrieved by the Judgment the Appellants filed this appeal, on the following grounds that the Honourable court erred in law and in fact and misdirected itself; by finding that the Appellant owes the Respondent Kenya Shillings One Hundred and Fifty Thousand (Kshs.150, 000/=) only and interest at 10% as prayed in the claim; by failing to interrogate the Respondent’s/Appellant’s evidence on record; by misdirecting itself in making the finding based on the wrongful assessment of damages of the breach of contract to be Kenya Shillings Four Hundred Thousand (Kshs 400, 000/=); by failing to hold that the Respondent/Claimant failed to collect Kenya Shillings One Hundred and Fifty Thousand (Kshs 150, 000) which was a refund already in the firm of advocate’s who acted for her; by upholding an unconscionable contract and or agreement between the Appellant and the Respondent and awarding damages of Kenya Shillings Four Hundred Thousand (Kshs400, 000) in terms of breach of a nonexistence contract; by failing to give any consideration or weight to the arguments and submissions of the Appellant’s counsel and to case law cited and by considering inadmissible evidence in arriving at its decision. 10. The appeal was canvassed by way of written submissions. The Respondent’s submissions are dated 24th June 2024. As at the time of writing this judgment, the Appellant had not filed any submissions. Respondent’s submissions 11. The Respondent began her submissions with a brief introduction and background of the case as presented before the trial court. 12. Regarding the finding that the Appellant owed the Respondent Kshs.150,000 plus interest at 10 per cent, the Respondent acknowledge receipt of Kshs.850,000. She explained that the disputed balance of Kshs.150,000 stemmed from the Appellant’s claim that the amount had been paid to the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13288/eng@2025-09-26 2

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Respondent’s advocate on record. However, the Respondent argued that no evidence was presented to substantiate the alleged payment. Citing the case of Mariano Dinacci v Angelo Lattineli [2015] eKLR, the Respondent maintained that the burden of proof rested with the Appellant and, in the absence of proof, she was entitled to the outstanding sum. 13. In response to the Appellant’s challenge of the Kshs.400,000 awarded as damages for breach of contract on grounds that the agreement was unconscionable, the Respondent relied on Clause 8(G) of the agreement. This clause expressly provided that, in the event of default by the vendor, the vendor would pay 10% of the purchase price to the purchaser within one month of a written demand. The Respondent argued that the agreement., was entered into freely, without coercion or undue influence, and was therefore conscionable. She emphasized that the was entitled to her kshs 400,000 as stipulated. 14. Addressing the Appellant’s claim that the suit was premature for want of a completion notice, the Respondent submitted that the Agreement did not require a 21-day completion notice or any other form of notice. She argued that the Appellant, had already initiated the refund process, thereby breaching the contract. The Respondent further submitted that she had produced a letter before the trial court in which the Appellant offered to refund the monies already paid, making any completion notice unnecessary. 15. In response to the Appellant’s contention that the Respondent had refused to collect Kshs.150,000 allegedly paid through her advocate, the Respondent noted that all prior payments had been made directly to the Appellant, either in person or through her bank account. She argued that it was illogical for the Appellant to deviate from his established payment method and instead remit the disputed amount to her advocate. The Respondent contended that the proper course of action for the Appellant would have been to institute third-party proceedings against the said advocate, thereby allowing the court to determine liability as between the Appellant and the third party. In support of this position, she relied on James Gikonyo Mwangi v D.M [2016] eKLR, and urged this Court to uphold the trial court’s findings. 16. In conclusion, the Respondent prayed that the appeal be dismissed with costs. Analysis and Determination 17. Appeals from the Small Claims Court, are limited and well prescribed under Section 38 of the Small Claims Court Act which limits the jurisdiction of this Court to matters of law only. It provides that: 38. (1) A person aggrieved by the decision or an order Appeals of the Court may appeal against that decision or order to the High Court on matters of law. (2) An appeal from any decision or order referred to in subsection (1) shall be final.” The scope of what constitutes, points of law, has been settled see the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR. 18. Guided by the above legal framework and authority, this court has a duty to consider the grounds of appeal as set out in the Memorandum of Appeal, the Record of Appeal, and the parties’ submissions, in order to identify and discern the primary question of law that calls for determination. 19. This Court notes that the Memorandum of Appeal sets out seven grounds, all of which are based on issues of fact and law. It is trite that as a matter of good practice and to ensure the prudent use of scarce judicial time, a Memorandum of Appeal in a matter of this nature should be clear, concise and identify clear points of law. They should refrain from repetitive grounds that leave the Court to engage in the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13288/eng@2025-09-26 3

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speculative exercise of deciphering the precise issues for determination. The Appellant ought to have distinctly identified the specific issues of law arising from the impugned decision. 20. The Appellant’s grievance against the impugned decision is primarily based on factual issues. She contends that the trial court failed to properly evaluate the evidence, particularly her claim that the Respondent did not collect Kshs 150, 000 from her advocate. She also argues that the Kshs 400, 000 demanded is not payable as the contract was unconscionable. To resolve these issues, the court will be required to examine the contract and reassess the evidence on record with the aim of reaching a different factual conclusion. 21. This Court declines to do so, as that would amount to exceeding its jurisdiction under Section 38 of the Small Claims Court Act, which restricts the appellate court to issues of law only. 22. The Appellant has not framed any legal issue beyond the trial court’s assessment of the evidence, as already observed above. Consequently, based on the above this court makes the following orders: i. The appeal is dismissed and the judgment of the trial court made on 23rd August 2022 in Thika SCC No. E270 of 2022 is upheld. ii. Each party to bear their own costs of the appeal. Orders accordingly. DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 26TH DAY OF SEPTEMBER 2025. RHODA RUTTO JUDGE In the presence of; ………………………………………For Appellant ………………………………………For Respondent Selina Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13288/eng@2025-09-26 4

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