County Government of Uasin Gishu v Edward Kiptek & 8 others

2. The background leading to the said ruling is that the matter in the test case herein was heard and the evidence of all parties taken before Hon. T. Mbugua (RM). Thereafter the 1st, 3rd and 4th Respondents filed an application dated 26th March 2024 seeking to have the said Adjudicator recuse herself. Upon hearing the application, the Hon Adjudicator recused herself and transferred the matter to Hon. R. Otieno (RM). 3. Consequently, on 6th May 2025 when the matter came up for mention for directions before the Hon R. Otieno, Counsels for the Claimant and the 5th Respondent sought that the matter proceeds from where it had reached before Hon T. Mbugua arguing that the matter was already behind the statutory timelines of the Small Claims Court. On the other hand, Counsel for the 1st, 3rd and 4th Respondents urged the Court to order that the matter starts de novo. 4. In declining to start the matter afresh, the Hon Adjudicator in his ruling dated 20th May 2024 observed that Section 3 of the Small Claims Act offers a guiding framework on the timely disposal of cases before the said Court. The Hon Adjudicator noted that these principles are the timely disposal of proceedings using the least expensive method, equal opportunity to access judicial services, fairness of process and simplicity of procedure and that it is based on these principles that Section 34 of the Act provided that matters in the said court should be determined within 60 days from the date of filing. 5. Further, the Court noted that the filing of submissions was the only pending issue and that a perusal of the Application which sought for the recusal of the Hon T. Mbugua and the Ruling thereto did not, in his finding, provide a basis for him to order that the matter starts de novo. The Hon Adjudicator was also of the finding that the parties urging for a de novo hearing did not give any specific reason to support that request and/or state any prejudice they would suffer if the matter proceeded from where it had reached. 6. Being dissatisfied with the ruling, the Appellant filed a Memorandum of Appeal dated 3rd June 2024 on grounds that; 1. The trial Magistrate erred in law and in fact in ruling that the hearing of the matter should not begin afresh following the recusal of the trial Magistrate, Tabitha Mbugua. 2. The trial Magistrate erred in law and fact in making a finding that the 1st, 3rd and 4th Respondents in their application dated 26th March 2024 did not demonstrate the nature of their prejudice should the trial not start afresh. 3. The trial Magistrate erred in law and fact in overriding the 1st, 3rd and 4th Respondents’/ Applicants’ right to justice in the interest of the time limits of the lower Courts. 4. The trial Magistrate erred in law and fact in failing to acknowledge that reliance on a flawed trial transcripts and/or proceedings will prejudice the 1st, 3rd and 4th Respondents/Applicants. 5. The trial Magistrate erred in law and in facts by allowing the matter to proceed to submissions without addressing the issues by the 1st, 3rd and 4th Respondents/Applicants. 6. The trial Magistrate erred in law and fact by proceeding with the trial while relying on evidence that had been brought into question by the 1st, 3rd and 4th Respondents’ Applicant’s application dated 26th March 2024. 7. The Court directed that the appeal be disposed of by way of written submissions. Parties were given timelines within which to comply. As at the time of writing the judgment herein, the only submissions that were on record were those filed by the firm of Kimaru Kimutai Advocates on https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1890/eng@2026-02-20 2

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behalf of the 1st Respondent. No submissions were filed by the Appellant. A summary of the said submissions filed is as hereunder; 8. Counsel cited Order 42 Rule 6 of the Civil Procedure Rules 2010 and Submitted that the conditions therein set for the granting of a stay of execution pending appeal have not been met by the Appellant to warrant the orders sought. In this regard, he cited the decision of the Supreme Court in the case of Moses Mwicigi and 14 Others v Independent Electoral and Boundaries Commission and 5 Others [2016] eKLR where the court impressed upon the need for parties to adhere to the laid down Rules and Procedures which the court held are very important for it goes without saying that they are handmaidens of justice. 9. Further Counsel also cited the provisions of Section 34 of the Small Claims Court Act that the Hon Adjudicator relied upon in reaching his determination as already herein summarized. He urged that the same should be read alongside Article 2(b) of the Constitution of Kenya 2010 (sic) which provides that justice should not be delayed. 10. That over and above this, the Appellants in their Application for stay failed to invoke the provisions of Order 42 Rule 6 of the Civil Procedure Rules thus rendering their Application incompetent and a candidate for dismissal. In support of this submission, Counsel cited the decision of the 5 - Judge Bench of the High Court in the case of William Odhiambo Ramogi and 2 Others v the Attorney General & 3 Others [2019] eKLR wherein the court laid down the 6 principles to be considered in an application for stay. 11. Lastly, Counsel, placing reliance (now correctly) on Article 159(2)(b) and (d) of the Constitution which provides that justice shall not be delayed and shall be administered without undue regard to procedural technicalities; Section 1B of the Civil Procedure Act that provides for the need for the timely disposal of cases; and Section 34 of the Small Claims Court Act that provides that cases filed before these court must be determined within 60 days from the date of filing, submitted that the Appellant by his conduct in failing to have their appeal heard and disposed of expeditiously has demonstrated bad faith, a condescending attitude towards the court which is an affront to the timely disposal of the suit as provided under the Small Claims Court Act. 12. In this regard, Counsel referred the court to his submissions which he indicates he made on 12th April 2024 (and which are not on record) in which he stated that he aptly captured the conduct of the Appellant as herein above referred to. Counsel then proceeded to further submit at length on whether the Hon T. Mbugua ought to have recused herself. This last limb of the submissions in my considered opinion is irrelevant to these proceedings and the court shall therefore not delve into the same. Counsel then urged that the Application be dismissed. Determination 13. Ordinarily, the duty of the first appellate Court is to re-evaluate and re-assess the evidence and make its own conclusions. But even with this provision, the Appellate Court must always keep in mind the fact that the Trial Court unlike the Appellate Court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. 14. However, appeals to the High Court from the Small Claims Court are on matters of law only as provided under the provisions of Section 38(1) and (2) of the Small Claims Court Act No. 2 of 2016. The High Court is also the first and last appellate court in this regard. The said Section as is hereunder reproduced; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1890/eng@2026-02-20 3

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Section 38 Appeals (1) 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. (2) An appeal from any decision or order referred to in subsection (1) shall be final. 15. In essence therefore, the aforementioned provision means that under Section 38 of the Small Claims Court Act, 2016, the High Court, while handling an appeal from the Small Claims Court is not permitted to substitute that Court’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the findings are so perverse that no reasonable tribunal would have arrived at them. The court must confine itself strictly to matters of law. 16. The above said and before delving into the merits and demerits of the matter in its entirety, there are several issue of significance that the court needs to bring to the fore at this preliminary stage for purposes of the completeness of the record. This court got seized of the matter on 29th May 2025. This was at the stage of confirming whether or not the Record of Appeal had been filed. The matter was allocated to the court by the Deputy Registrar of the High Court. 17. From what the court was able to glean from the correspondence exchanged between Counsel Kimaru Kimutai for the Claimants and the Deputy Registrar of the court as filed in the court file has led the court to conclude that an oral application for a stay of the proceedings of the Small Claims Court was made to the High Court and the same was allowed and the Lower Court proceedings were accordingly stayed. 18. However, from my perusal of the court file, I have been unable to trace the proceedings of the court, or any proceedings at all before the Judge pertaining to this oral application. There is also no formal application for stay of proceedings filed in the court file and/or in the CTS. In these regard then I am unable to discern under which provision of the law the said application was made if at all, when it was made, before which Judge it was made, under which provision of the law it was made, whether the application was for stay of execution or stay of proceedings or both, the exact orders that were issued and/or even when they were issued. 19. For this reason, I am not able to connect any application to the submissions made by the Counsel for the Claimant with regard to the provisions of Order 42 Rule 6 of the Civil Procedure Rules as herein above summarized specifically, and/or with the rest of the submissions anchored on an application. The court is therefore flying blind so to speak in this regard. 20. This scenario is further compounded by the fact that the Appellant in the matter did also not file any submissions. This being the case then, it is extremely difficult for the court, having taken up this matter mid-stream, to even know what it’s decision ought to be about, to wit, whether this matter is at the stage of the inter-parties hearing of an application, or whether it is at the stage of the consideration of the Appeal. This is because there are no proceedings to guide the court on what had transpired hereto before. 21. But even assuming the court is to consider the Appeal filed, what convolutes the quagmire even further is that from the grounds of Appeal filed, what is apparent is that the main ground of contention is an Application that was made before the Trial Court dated 26th March 2024. From the tone of the grounds of appeal as filed, it appears that this was the Application that sought the Hon T. Mbugua’s recusal. 22. However, this application, together with the appurtenant pleadings, submissions and Ruling, are neither in the record of the trial court itself as per the original file availed to court, nor in the record of appeal that has been sub mitted to court. As already herein summarized, Hon R. Otieno directed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1890/eng@2026-02-20 4

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that the matter proceeds from where the Hon T. Mbugua had left off and that decision was contested hence this Appeal. 23. Compounding the ambiguity even further is the fact that the the submissions made by the parties on the application that the matter proceeds de novo are also not in the record of the trial court nor in the record of appeal. Further to the above, the record of the proceedings of the Small Claims Court shows that an application for stay of the proceedings was made before Hon R. Otieno on 3rd June 2024, submissions filed, and the Hon Adjudicator delivered his Ruling on this Application on 4th July 2024. Again, the pleadings, submissions and the Ruling relevant to this application are also not in the record of the proceedings of the trial court or on the record of appeal. 24. With all the omissions as above highlighted, the court is not in a position to appreciate and put into context the gist of the Appellant’s Appeal as well. A perusal of the list of what is contained in the Record of Appeal as filed, and as indicated by the Appellants themselves, shows that only the following documents were filed; 1. Memorandum of Appeal 2. Ruling 3. Proceedings 25. Further to the above, the court also notes that the Memorandum of Appeal filed has no parties listed at the introductory heading to indicate who the Appellant is and who the Respondents are. 26. The above said, it should be noted that the court is very much alive to the provisions of Section 32 of the Small Claims Act which stipulates that the Small Claims Court shall not be bound wholly by the strict rules of evidence in the discharge of its functions. This is understandably so for reasons of the expediency with which the court is mandated to hear and determine the cases before it. 27. However, when it comes to appeals, it is important to note that nowhere in the operating statute of the Small Claims Court, which is the Small Claims Court Act have the provisions of the Civil Procedure Act been ousted in any way. This being the case then, it is mandatory that parties seeking to appeal from a decision of the Small Claims Court to the High Court must comply with the provisions of Order 42 Rule 13(4) of the Civil Procedure Rules. 28. It should further be noted that these provisions are couched in mandatory terms by use of the word shall. The said provisions are as follows; Order 42, rule 13(4) (4) Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say— (a) the memorandum of appeal; (b) the pleadings; (c) the notes of the trial magistrate made at the hearing; (d) the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing; (e) all affidavits, maps and other documents whatsoever put in evidence before the magistrate; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1890/eng@2026-02-20 5

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(f) 29. the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal: Section 22 of the Small Claims Court Act describes what the record of the Small Claims Court is and it comprises of the pleadings, the proceedings and the Orders and/or Decrees of the court. This translated to the provisions of Order 42 Rule 13(4) of the Civil Procedure Rules then would mean that any appeal from the Small Claims Court to the High Court should comprise of the following; (a) claims and responses filed with the Court by parties; (b) summaries of the facts of the issues in dispute in respect of those claims as determined and recorded by the Court during the hearing of the claims; and (c) orders made by the Court in relation to those claims. 30. As already herein indicated, the above documents did not comprise the Record of Appeal filed before this court by the Appellant herein. With all the above anomalies relating to the appeal herein filed as above enumerated, it is clear that the Appellant has fallen far too short of compliance with the provisions of Order 42 Rule 13(4) of the Civil Procedure Rules. This want of compliance in my view goes way beyond the procedural technicalities that are envisaged in Article 159(2)(d) of the Constitution. 31. This is for the simple reason that the noncompliance with the said Order 42 affects the very substratum and substance of the appeal for the simple reason that it is from the Record of Appeal that the court is able to appreciate and relate to the Grounds of Appeal as listed in the Memorandum of Appeal filed. This is because it is the record of appeal that informs, lends credence to and justifies the grounds of appeal for which the impugned decision of a Trial Court is sought to be overturned. 32. The need and reason for the adherence to procedural fidelity by parties in the filing of their pleadings was underscored by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR as follows; “ …In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) …Procedure is also a handmaiden of the just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenant of substantive justice as they give fair notice to the other party. ….. 33. In light of all the above, and guided by the above decision of the Court of Appeal as well as the mandatory provisions of Order 42 Rule 13(4) of the Civil Procedure Rules 2010 herein cited, it is my finding that the appeal filed by the appellant herein is grossly incompetent for want of procedural compliance, propriety and fidelity. 34. Accordingly, the said Appeal is struck in its entirety with no orders as to costs. The apparent oral interim order of stay herein issued against the decision of the Hon R. Otieno to the effect that he does not proceed with the matter from where the Hon T. Mbugua had left it off as per his Ruling dated 20th May 2024 is now hereby vacated and the matter is now hereby referred back to The Small Claims Court for the hearing and determination of the case from where the Hon. T. Mbugua RM left it off. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1890/eng@2026-02-20 6

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READ DATED AND SIGNED AT ELDORET ON 20TH FEBRUARY 2026 E. OMINDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1890/eng@2026-02-20 7

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