Elvi General Engineering & Supplies Ltd v Granite Sustain & Marble Ltd

The Appellant’s Submissions 4. The appellant refers to Section 107 and 108 of the Evidence Act and the cases of Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] eKLR and Gichinga Kibutha v Caroline Nduku [2018] eKLR and submits that the respondent sought for the services of a compressor machine and upon taking possession and ownership of the machine, it was to be charged monthly. The appellant submits that on 6th June 2022, it informed the respondent that the machine was being mishandled and asked that it be returned to them to do repairs which the respondent accepted and asked to be billed for the repairs. Additionally, the appellant submits that the respondent delayed and defaulted on payments for the use and enjoyment of the machine to the tune of Kshs. 604,549.86/=. 5. The appellant argues that it produced all the relevant documents in support of the facts however the learned adjudicator did not keenly scrutinize the said documents. Further, the respondent acknowledged default in payment of daily charges for two months and undertook to be billed for the repairs of the machine, facts which were not considered by the learned adjudicator. The appellant further submits that the trial court casually tried to interpret the accounting language by looking at the first two columns in the statement of account. The appellant additionally argues that although the statement of account runs up to March 2022, the learned adjudicator did not consider the remainder of the months up to May and thus not factored in the findings. 6. The appellant submits that the responsibility to repair the machine lay on the respondent and the same was admitted in the email of one Lucky Mohammed. The appellant further urges the court to find that the respondent did not make payments for the months of November 2022, December 2022, April 2023 and May 2023 and additionally the cost of replacements of parts was due and demobilization costs less credit balance. The Respondent’s Submissions. 7. The respondent refers to Section 38 of the Small Claims Court Act and the case of Wachira v Mwai (Civil Appeal E022 of 2023) [2024] KEHC 3173 (KLR) and submits that the grounds of appeal raised by the appellant are based on facts and not law. Thus, the appeal is defective and ought to be dismissed. Issues for Determination 8. The main issues for determination are:a. Whether the appeal is properly before this court. b. If the appeal is found to be properly before the court, whether the appellant proved its case on a balance of probabilities. The Law 9. The Court of Appeal while referring to a second appeal, which is essentially on points of law and thus similar to the duty of this court under Section 38 of the Small Claims Court Act, set out the duty of the second appellate court in the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR as follows:I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below considered matters that they should have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19718/eng@2025-06-26 2

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10. In distinguishing between matters of law and fact the Court of Appeal stated in Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR as follows:“ I have anxiously considered the pleadings, the evidence on record, the judgment of the learned Senior Resident Magistrate and the judgment of the superior court, the grounds of appeal, the submissions of the learned counsel as well as the authorities to which we were referred. First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyse it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of retrial and facts must be revisited and analysed a fresh. See Selle and Another v Associated Motor Boat Company Limited and Others (1968) EA 123. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse." 11. Section 38 of the Act provides:A person aggrieved by the decision or an order of the court may appeal against that decision or order to the high Court on matters of law. 12. I have perused the grounds in the memorandum of appeal and noted that the grounds relate primarily to questions of fact. The appellant is aggrieved that the learned adjudicator found that it did not did not prove its claim that the respondent breached the terms of the contract and thus it was not entitled to special damages of Kshs. 604,549.86/-. The grounds raised by the appellant are on matters of fact which will require this court to scrutinize and re-evaluate the evidence once more. According to the provisions of Section 38 of the Act, an appeal to the High Court should only be on matters of law. 13. The instant appeal grounded on matters of fact and is therefore, not properly before the court. 14. This appeal is, therefore ordered struck out with costs to the respondent. 15. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 26TH DAY OF JUNE 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19718/eng@2025-06-26 3

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