Inua Rider Limited v Versuswycliffe Lujaja Atieno

Appellant’s Submissions 5. The Appellant contended that the learned trial adjudicator misapplied Section 41(d) of the Small Claims Court Act by failing to appreciate that there existed a clear error of law on the face of the record. 6. The Appellant submitted that the Respondent’s claim was premised on a purchase transaction whose purchase price was never proved, yet the court proceeded to enter judgment in his favour. This, the Appellant argued, violated the rules of evidence and fair adjudication under Sections 107 and 109 of the Evidence Act. Reference was made to the decision in Nyamogo & Nyamogo Advocates vs. Kogo [2001] EA 174, where the Court of Appeal held that a clear and manifest error of law, requiring no elaborate reasoning, constitutes an error on the face of the record. 7. It was further argued that the trial court assumed facts not supported by evidence and thus arrived at a judgment that was unsustainable in law. The Appellant therefore prayed that the impugned judgment be reviewed and set aside, with costs. Respondent’s Submissions 8. The Respondent, Wycliffe Lujaja Atieno, opposed the appeal, arguing that it was incompetent and devoid of merit, having been filed outside the statutory period provided under Section 38 of the Small Claims Court Act and Rule 30 of the Small Claims Court Rules. 9. It was submitted that the Appellant was, in effect, appealing against the trial court’s own judgment under the guise of a review, contrary to law. It was the Respondent’s case that the Small Claims Court rightly held that it could not sit on appeal over its own decision. 10. The Respondent further submitted that no error of law apparent on the face of the record had been demonstrated and that the Appellant was merely challenging the evaluation of evidence, which is a ground for appeal, not review. Reliance was placed on the decision in Milhan Access Capital Ltd vs. Kaputi (Civil Appeal E111 of 2022) [2024] KEHC 6109 (KLR) where it was held that a judgment delivered inter partes can only be reviewed under the confines of Section 41, and anything beyond that would amount to sitting on appeal over one’s own decision. 11. Reference was also made to the decision in Sunstone Building Material Co. Ltd vs. Odungo [2023] KEHC 22469 (KLR) where it was held that appeals from the Small Claims Court must be filed within 30 days of judgment and that failure to do so renders the appeal incompetent. 12. The Respondent also cited Nyamogo & Nyamogo Advocates vs. Kogo (supra) to clarify that a mere erroneous view of evidence or law cannot constitute an error apparent on the face of the record and Niangu vs. Wambugu & Another (HCCC No. 2340 of 1991) for the argument that litigation must come to an end since endless re-litigation offends public policy. Issues for Determination 13. After careful review of the record, pleadings, and submissions, I find that the following issues arise for determination: a. Whether the appeal was filed within the statutory time limit and is therefore competent. b. Whether the Appellant demonstrated an error of law apparent on the face of the record as contemplated under Section 41(d) of the Small Claims Court Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19413/eng@2025-11-17 2

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c. Whether the learned trial adjudicator erred in declining to review her judgment. d. What orders should issue as to costs. Analysis and Determination Competence of the Appeal 14. Section 38 of the Small Claims Court Act (the Act) provides that a person aggrieved by a decision or order of the Small Claims Court may appeal to the High Court on matters of law only, and within 30 days of the judgment. 15. In the instant case, the judgment under challenge was delivered on 21st July 2023, while this appeal was filed on 7th December 2023 which was well outside the 30-day statutory window. I also note that no leave for extension of time to file appeal was sought. Guided by the decision in Sunstone Building Material Co. Ltd vs. Odungo (supra), I find that failure to appeal within the statutory timeline renders the appeal fatally defective and incompetent as it offends Section 38 of the Act. Alleged Error of Law on the Face of the Record 16. The Appellant argued that the trial adjudicator erred by failing to appreciate that the purchase price was not proved, thereby arriving at an erroneous conclusion. My view is that this contention goes to the evaluation of evidence and the weight accorded to facts of the case which is not a self-evident legal error. In Nyamogo & Nyamogo Advocates case (supra) it was held that: “ An error apparent on the face of the record cannot be defined precisely or exhaustively; it must be self-evident and not one that has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions.” 17. Similarly, in Muyodi vs. Industrial & Commercial Development Corporation & Another [2006] 1 EA 243, the Court reiterated that a review cannot be used as a backdoor appeal. 18. In the present case, the record shows that the trial adjudicator evaluated the evidence and found in favour of the Respondent. I find that the Appellant’s dissatisfaction with that decision does not amount to an error apparent on the face of the record but rather a disagreement with the court’s factual and legal interpretation. Jurisdiction and Scope of Review 19. Under Section 41 of the Act, the power of review is limited to specific grounds, including fraud, lack of jurisdiction, or clear errors of law. Having found that there was no error apparent on the record to warrant a review, I find that the lower court correctly held that allowing the application would amount to sitting on appeal over its own judgment, contrary to established law (see Milhan Access Capital Ltd vs. Kaputi [2024] KEHC 6109 (KLR)). 20. It is therefore my finding that the trial court properly dismissed the review application for want of jurisdiction and merit. Costs 21. Section 27 of the Civil Procedure Act stipulates that costs follow the event. The Respondent, having succeeded in this appeal is therefore entitled to costs. As stated in Rai vs. Rai & Others [2014] KESC https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19413/eng@2025-11-17 3

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31, costs are awarded to compensate a successful litigant for expenses reasonably incurred in defending a suit. Disposition 22. For the reasons that I have stated in this judgment, I make the following orders: a. The appeal filed on 7th December 2023 is incompetent, having been lodged outside the statutory 30-day period under Section 38 of the Small Claims Court Act. b. The Appellant has failed to establish any error of law apparent on the face of the record under Section 41(d) of the Act. c. The appeal therefore lacks merit and is hereby dismissed in its entirety. d. The judgment of the Small Claims Court dated 21st July 2023 and the ruling of 24th November 2023 are afirmed. e. Costs of this appeal are awarded to the Respondent. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2025. HON. W. A. OKWAN JUDGE 17/11/2025 For Appellant……………. For the Respondent………… Court Assistant Ubah https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19413/eng@2025-11-17 4

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