The Catholic University of Eastern Africa v Tradebells Services Limited

The Appeal 3. Aggrieved by the decision, the Appellant filed the present appeal through a Memorandum of Appeal dated 5th April 2024, challenging the judgment on both legal and factual grounds. The Appellant listed the following main grounds of appeal: a) The trial court erred in law and fact in assuming jurisdiction over a tenancy dispute contrary to Section 12 of the Small Claims Court Act, 2016. b) The trial court erred in failing to find that the claim was statute-barred under Section 4(1)(a) of the Limitation of Actions Act. c) The Statement of Claim lacked sufficient particulars as required by Section 24(f) of the Small Claims Court Act. d) The trial court’s judgment failed to comply with Order 21 Rule 4 of the Civil Procedure Rules, 2010, as it lacked points for determination and reasons. 4. The Appellant seeks orders for the setting set aside of the trial courts judgment with costs. 5. The Appeal was canvassed by way of written submissions which I have considered. The Appellant’s Arguments 6. The Appellant contended that since the dispute arose from a tenancy relationship, only the Business Premises Rent Tribunal (BPRT) had jurisdiction to hear it. The Appellant HCCSCA E203 OF 2025- JUDGEMENT 2

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cited the decision in Owners of Motor Vessel “Lilian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1, where Nyarangi JA held that: “Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings… and the court must down its tools.” 7. Reference was also made to Republic vs. Chairperson, BPRT & Rosemary Wangari Chege Ex Parte Suraj Housing [2016] eKLR, which affirmed that tenancy disputes fall under the BPRT. 8. The Appellant also submitted that the claim was time barred since the tenancy expired on 30th September 2017, and the claim was filed on 28th July 2023 which was beyond the six-year limitation under Section 4(1)(a) of the Limitation of Actions Act. 9. It was the Appellant’s case that the Statement of Claim lacked the clarity required under Section 24(f) of the Small Claims Court Act and further, that the judgment was deficient for non-compliance with Order 21 Rule 4 of the Civil Procedure Rules, 2010. 10. The Appellant urged this court to set aside the trial court’s judgment. The Respondent’s Arguments 11. The Respondent’ submitted that since the tenancy had already expired, the claim therefore related to a debt HCCSCA E203 OF 2025- JUDGEMENT 3

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recoverable under ordinary contract law. Reliance was placed on Sindinga & 2 Others vs. Mwangi (E&L Appeal No. E034 of 2023) [2024] KELC 5530 (KLR). 12. On the issue of whether the claim was time barred, the Respondent relied on Section 23(3) of the Limitation of Actions Act and asserted that the last part payment on 24th August 2017 reset the six-year limitation period. The Respondent cited the decision in Divecon Ltd vs. Samani [1995–1998] 1 EA 48, where the Court held: “The effect of part payment or acknowledgment is to revive the cause of action and the limitation period begins to run afresh from the date of such payment.” 13. It was the Respondent’s case that the pleadings contained itemized sums, invoices, and statements of account, enabling the Appellant to understand and respond. 14. On the validity of the impugned judgment, the Respondent submitted that the said judgment satisfied the requirements of Order 21 Rule 4. Reference was made to the case of Peter M. Kariuki vs. Attorney General [2014] eKLR, where the Court stated: “A judgment must show that the court has applied its mind to the issues before it.” Issues for Determination 15. From the pleadings, record of appeal and submissions, I find that the following issues arise for determination: HCCSCA E203 OF 2025- JUDGEMENT 4

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a) Whether the Small Claims Court had jurisdiction to hear and determine the dispute. b) Whether the claim was statute-barred under the Limitation of Actions Act. c) Whether the pleadings before the trial court were sufficient under Section 24(f) of the Small Claims Court Act. d) Whether the trial court’s judgment met the standard prescribed by Order 21 Rule 4 of the Civil Procedure Rules, 2010. Analysis and Determination (a) Jurisdiction 16. The Appellant contended that since the dispute stemmed from a tenancy relationship, the Small Claims Court lacked jurisdiction to entertain it. Section 12 of the Small Claims Court Act stipulates as follows: 12. Nature of claims and pecuniary jurisdiction (1) Subject to this Act, the Rules and any other law, the Court has jurisdiction to determine any civil claim relating to(a) a contract for sale and supply of goods or services; (b) a contract relating to money held and received; (c) liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property; (d) compensation for personal injuries; and HCCSCA E203 OF 2025- JUDGEMENT 5

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(e) set-off and counterclaim under any contract. (2) Without prejudice to the generality of subsection (1), the Court may exercise any other civil jurisdiction as may be conferred under any other written law. (3) The pecuniary jurisdiction of the Court shall be limited to one million shillings. (4) Without prejudice to subsection (3), the Chief Justice may determine by notice in the Gazette such other pecuniary jurisdiction of the Court as the Chief Justice thinks fit. 17. The above provision limits the Court’s jurisdiction to contracts for sale and supply of goods or services, contracts relating to money held and received, tort claims for loss or damage to property and set-off or counterclaims arising under any contract. 18. It is trite law that jurisdiction flows from the Constitution or statute and cannot be conferred by the court itself. (See Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Ltd & 2 Others [2012] eKLR and Owners of the Motor Vessel “Lilian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1, where the Court held that where a court finds it lacks jurisdiction, it must “down its tools.”). 19. The Appellant argued that since the relationship between the parties arose from a tenancy relationship, jurisdiction lay with the Business Premises Rent Tribunal (BPRT), as HCCSCA E203 OF 2025- JUDGEMENT 6

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provided under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. Reference was made to the decision in Republic vs. Chairperson, Business Premises Rent Tribunal & Rosemary Wangari Chege Ex Parte Suraj Housing & Properties Ltd [2016] eKLR and Pritam vs. Ratilal & Another [1972] EA 560, where courts emphasized that tenancy-related disputes fall under specialized tribunals. 20. The Respondent, on the other hand, maintained that the tenancy had expired and that the claim was purely contractual, arising from unpaid invoices and a refundable rent deposit, not rent arrears. It was submitted that once the tenancy expired, any unpaid sums became recoverable as a contractual debt under Section 12(1)(a) of the Small Claims Court Act. 21. In Sindinga & 2 Others vs. Mwangi (supra) the Court held that: “First, the tribunals deal with tenancy disputes only when there are subsisting tenancy relationships. Where there is no subsisting tenancy relationship between the parties to the dispute, the tribunal has no jurisdiction. The proper fora where the dispute should be adjudicated, in such circumstances, are the civil courts established under the Constitution.” HCCSCA E203 OF 2025- JUDGEMENT 7

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22. I find that since the tenancy had expired, the Respondent’s claim was founded on a debt and not on a tenancy relationship. I find that the sums claimed were in the nature of contractual obligations and that the Small Claims Court properly exercised jurisdiction under Section 12(1)(a) and (e) of the Act. (b) Whether the Claim was Statute-Barred 23. The Appellant relied on Section 4(1)(a) of the Limitation of Actions Act, which provides a six-year limitation for contractual claims. It argued that since the tenancy expired on 30th September 2017, the claim filed on 28th July 2023 was out of time. 24. The Respondent, on its part, cited Section 23(3) of the same Act, which provides that acknowledgment or part payment of a debt restarts the limitation period. Section 23(3) & (4) of the Limitation of Actions Act stipulates as follows: 23(3) “Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment.” 23(4) HCCSCA E203 OF 2025- JUDGEMENT 8

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“Every such acknowledgment as is referred to in subsection (3) shall be in writing and signed by the person making it.” 25. The meaning and effect of the above provision is that if a debtor pays part of the debt before the limitation period expires, the limitation clock restarts from the date of that payment. To be effective, acknowledgment must be in writing and signed by the debtor, however, part-payment itself also suffices even without a written acknowledgment. If, on the other hand, the claim is time-barred, no amount of part-payment can revive it. 26. In Gathoni vs. Kenya Co-operative Creameries Ltd [1982] KLR 104 it was held that only statutory events, such as part-payment, can extend time. 27. In Shah vs. Shah [1982] KLR 95 the Court of Appeal (Madan JA) held that: “Acknowledgment or part-payment must be an admission of liability made before the expiry of the limitation period, and where either is established, time begins to run afresh from the date thereof.” The Court further emphasized that: “An acknowledgment must be in writing and signed, but part-payment, even without such writing, constitutes a fresh start for computation of time.” HCCSCA E203 OF 2025- JUDGEMENT 9

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28. In Mbiyu Koinange vs. Macharia [1976] KLR it was held that: - “Payment of part of a debt is an unequivocal acknowledgment of the whole debt, thereby renewing the period of limitation under section 23 of the Limitation of Actions Act.” 29. In the present case, the record indicates that part-payment was made on 24th August 2017 thus restarting the six-year period, which thus ran until 24th August 2023. 30. My finding is that the claim, having been filed within six years from the last payment date, was not statute-barred. (c) Sufficiency of Pleadings 31. The Appellant claimed that the Respondent’s pleadings were vague. A perusal of the record however reveals that the Statement of Claim itemized the sums due which comprised the refundable deposit and unpaid invoices and attached statements of account. 32. Section 24(f) of the Small Claims Court Act requires pleadings to disclose particulars sufficient for the other party to understand the claim. In Independent Electoral & Boundaries Commission vs. Stephen Mutinda Mule & 3 Others [2014] eKLR, the Court emphasized that pleadings are meant to give fair notice of the case to be met. HCCSCA E203 OF 2025- JUDGEMENT 10

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33. I note that the Appellant not only filed a response but also a counterclaim which is an indication that it understood the the Respondent’s case. I find that the pleadings were adequate and compliant with statutory requirements. (d) Compliance with Order 21 Rule 4 of the Civil Procedure Rules (CPR) 34. The Appellant contended that the trial court failed to render a reasoned judgment. Order 21 Rule 4 of the CPR provides that judgments must contain a concise statement of the case, points for determination, decisions thereon, and reasons for those decisions. 35. A perusal of the record shows that the lower court judgment summarized the pleading and the evidence, isolated the legal issues for determination, and provided reasoned conclusions. In Peter M. Kariuki vs. Attorney General [2014] eKLR, it was held that a judgment must show that the court applied its mind to the issues before it. I find that the adjudicator’s decision complied with the requirements of Order 21 Rule 4 Order 21 Rule 4 of the CPR. 36. Having regard to the findings and observations that I have made in this judgment, I find that the instant appeal is not merited and I therefore dismiss it with costs to the Respondent. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 20TH DAY OF NOVEMBER, 2025. HCCSCA E203 OF 2025- JUDGEMENT 11

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HON. W. A. OKWANY JUDGE 20/11/2025 FOR APPELLANT ……………. FOR THE RESPONDENT ………… COURT ASSISTANT Ubah HCCSCA E203 OF 2025- JUDGEMENT 12

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