Rohiyah Famau v Bijuma Mohamed

4. The Claimant/Respondent filed their Replying Affidavit sworn on 22nd October 2024 that the case proceeded to hearing according to Section 30 of the Small Claims Act where the court can proceed to hear parties through documents, and the case is purely argued by way of written submissions. That the judgment debtor neither filed documents nor submissions and that after the court issued judgment, it pronounced its finality and became functus officio. 5. The trial court in its ruling dismissed the application in its entirety with costs to the Claimant. 6. Being dissatisfied, the Appellant appealed against the ruling and order through the Memorandum of Appeal dated 5th November 2024 on grounds that the learned Adjudicator exercised her discretion wrongly by refusing to reopen the case for rehearing, by refusing to admit fresh evidence, by sacrificing substantive justice at the mistake of counsel, in holdings that a judgment on merit is not amenable to review, and in holding that the court was functus officio. 7. The Appellant prayed for orders that the appeal be allowed, that the ruling and order of 24th October 2024 be reversed and substituted thereof with an order wholly allowing the Notice of Motion dated 11th October 2024, that upon reversing and substituting the ruling and order, the matter be remitted to an adjudicator other than Hon. J. W. Mwangi for rehearing and determination, and that costs of this appeal be provided for. 8. The appeal was canvassed by way of written submissions. The Appellant in their submissions dated 20th May 2025 cited Section 41 of the Small Claims Court Act which provides that an adjudicator may on application by any aggrieved party or on his or her own motion review any order of the court, and Section 43 of the Small Claims Court Act which states that the court may on the application of any party to the proceedings set aside any of its orders and make such further orders as it thinks just. 9. The Appellant submitted that any award or order of the court is reviewable and similar powers of review are expressed in Order 45 Rule 1 of the Civil Procedure Rules. That the court in County Government of Kwale v Nyakongo t/a HR Ganijee & Sons & another [2023] KECA 1066 (KLR) also expressed itself on the power of review. 10. On the issue of sacrificing substantive justice at the altar of mistake of counsel, the Appellant stated that a regrettable mistake was owned up and it was explained how the evidence was misfiled in the office. 11. On failure to admit fresh evidence for rehearing, the Appellant submitted that the evidence sought to be introduced for rehearing was the Appellant’s M-pesa statements. The Appellant in her statement of defence dated 9th August 2024 admitted receiving KShs. 200,000/= from the Respondent but averred that she had repaid KShs. 70,000/=. 12. That the Appellant was seeking to introduce the M-pesa statements to assist the court in confirming the payment made on 28th February 2024 and 19th April 2024 totaling to KShs. 70,000/=. The Appellant stated that by refusing to reopen the case and admit the evidence for rehearing, the trial court effectively permitted the Respondent to unjustly enrich herself at the Appellant’s expense. 13. The Respondent in their submissions dated 13th June 2025 on whether the Appellant met the conditions for review before the trial court, argued that the review before the Small Claims Court is guided by Section 41 of the Small Claims Court Act. That the review sought fell outside the conditions under the said section and the Appellant was requesting to re-litigate what had already been decided on merit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19481/eng@2025-12-05 2

page 2 of 6

14. That the Appellant is not only seeking to review the case but to introduce new evidence they had throughout the proceedings, and that by doing so they also seek to review facts and merits of the case. That the trial court was therefore right in its decision. 15. On whether the learned magistrate erred in determining that the court was functus officio, the Respondent submitted that the court had already determined the issue of Kshs. 70,000 alleged to have been paid. That the trial court was therefore right in determining that it was functus officio. The Respondent cited the case of Raila Odinga v IEBC (2013) eKLR which cited with approval an excerpt from an article by Daniel Malan Pretorius entitled ‘The Origins of Functus Officio Doctrine, with Special Reference to its Application in Administrative Law’ (2005) 122 SALJ 832. 16. On costs, the Respondent stated that costs follow event. They therefore prayed that the Appellant should bear costs of the suit. Analysis 17. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: “ … Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …” 18. 19. This court has considered the Record of Appeal dated 8th January 2025 and submissions by the parties. The issues for determination are: a. Whether the Appellant’s application for review was merited b. Whether the court became functus officio after delivery of judgment c. What orders on costs should issue The small Claims court is closed with the powers to review any order of the court under Rule 41 (1) of the Small Claims Act which provide as hereunder; “ (1) 20. An Adjudicator may, on application by any aggrieved party or on his or her own motion, review any order of the Court on the ground that— (a) the order was made ex-parte without notice to the applicant; (b) the claim or order was outside the jurisdiction of the Court; (c) the order was obtained fraudulently; (d) there was an error of law on the face of the record; or (e) new facts previously not before the Court have been discovered by either of the parties.” Any party who approached the court for review under the said must satisfy either of the said grounds. The Appellant states that the Mpesa statement was inadvertently left out of the court documents for reasons that her advocate had misplaced it. The advocate swore an affidavit confirming the same, and he took responsibility for not filing the document, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19481/eng@2025-12-05 3

page 3 of 6

21. The Respondent on the other hand submits that this is not a discovery of new evidence as the Appellant had it all the time. The Respondent was said to try re-open the case which has already been heard and determined, thus making the court funcus officio. 22. I have perused through the ruling of the court. The trial court on section 41 of the Act stated as follows; “ Looking at the said section vis-à-vis the Respondent’s application, it follows then that none of the five grounds captured in the above referenced section have been demonstrated. I say so because the document sought to be produced by the Respondent was all along in her possession”. 20. I do agree with the finding of the court only to the extent that the basis for review is not provided for in the Act. The trial court did not err in law and fact in disallowing the application for review on that basis. 21. Nevertheless, it has been held by the superior courts that the mistake of the lawyer should not be visited upon an innocent client. The trial court found that the documents were in possession of the Respondent. From the evidence adduced, the documents were in possession of the advocate, and he has owned up to the mistake. In the case of Belinda Murai & 9 Others v Amos Wainaina [1982] KLR 38, Madan, JA as he then was, held that; “ A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by senior counsel. Though in the case of junior counsel the court may feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to have known better. The court may not forgive or condone it but it ought to certainly do whatever is necessary to rectify it if the interests of justice so dictate. The courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule...” 25. The Civil Procedure Rules under Order 45, rule (1) gives the ground of ‘any other sufficient reason’ as a ground for review under the rules. It provides as follows; “ (1) 20. (1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason,(emphasis mine) desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” Under the Civil Procedure Rules, the mistake of an advocate would be a sufficient ground ‘any other sufficient reason’. The Small Claims Court is not mandated to use the ground of ‘other sufficient https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19481/eng@2025-12-05 4

page 4 of 6

reason’ as a ground for review. Nevertheless, the court is mandated to exercise its jurisdiction and be guided by the principles of judicial authority as prescribed under Article 159 (2) of the Constitution. 21. In addition to the above, Section 3 of the Small Claims Court Act provides as follows; (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. (2) 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) the timely disposal of all proceedings before the Court using the least expensive method; (b) equal opportunity to access judicial services under this Act; (c) fairness of process; and (d) simplicity of procedure. 20. I have perused through the Record of Appeal. The Appellant/ Respondent pleaded that she had paid Kshs. 70,000/= to the Respondent/ Claimant. I have also perused the documents attached to the application which ruling is subject to this appeal. I agree with the submissions by the Appellant that the courts have a higher calling of doing justice to the parties. In support, the Appellant relied on the case of Hui Commercial Enterprise (Africa) Company Limited Aka Hui Commercial & another v Salif Michael Ngululi & 13 others [2021] KECA 1059 (KLR), where it was held that the courts exist to do justice. 21. Guided by the principles under section 3 (3) (c) of the Small Claims Act, I find it just to have the case reopened for purposes of making a determination on whether or not there was such a payment made. 22. On costs, I exercise this court’s discretion and have each party to bear its own costs. Determination 19. Following the foregone discourse, the upshot is that the following orders do hereby issue; a. b. That the appeal has merits and is allowed o the following terms; i. The Ruling dated 24/10/2024 is hereby set aside and is substituted with an order allowing the Notice of Motion Application dated 11/10/2024. ii. That the case be reopened for hearing before another Adjudicator other than Hon. J.W. Mwangi. Each party to bear its own costs. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 05TH DAY OF DECEMBER, 2025 ……………………….. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19481/eng@2025-12-05 5

page 5 of 6

HON. F. WANGARI JUDGE In the presence of; Mr. Muriithi Advocate for the Appellant N/A by the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19481/eng@2025-12-05 6

page 6 of 6