Peter Muema Mbatha v Paschalina M Titus & 2 others

4. That the learned trial magistrate erred in law and in fact in her interpretation of section 13(5) of the small claims act, by considering that the subject matter of the claim was premised on dispute over title to land or possession of land while it was for monies being refunded by the respondents. 3. The Appellant prays that the Ruling of the learned trial Adjudicator dated 5th of June 2023 be set aside and that this court may make any other necessary orders. 4. The Appeal was canvassed through written submissions and both parties filed their respective submissions. Analysis and Determination 5. 6. This being an appeal from the Small Claims Court, the jurisdiction of the Court is circumscribed in Section 38 of the Small Claims Court Act. Section 38 of the Small Claims Court Act provides as follows: 1. A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law. 2. An appeal from any decision or order referred to in sub section (1) shall be final. The above provision means that this Court can only intervene if the evidence on record does not reasonably support the conclusions made by the trial court. More specifically, an appeal before this Court is essentially limited to points of law. In the case of Mwita v Woodventure (K) Limited & another (Civil Appeal 58 of 2017) [2022] KECA 628 (KLR) (8 July 2022) (Judgment), the Court of Appeal stated: “ This is a second appeal. Accordingly, the jurisdiction of this Court is limited to consideration of matters of law. As was held in the case of Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the court below considered matters it should not have considered, or failed to consider matters it should have considered, or looking at the entire decision, it is perverse. See also Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR in which it was held that: “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.” 7. I have carefully read and considered the Record of Appeal, the grounds of appeal and rival submissions by the Parties’ counsel. The pertinent issue for determination herein is whether this court should allow the appeal by finding that the Small Claims Court had jurisdiction to determine the Appellant’s Claim and thus set aside the trial court’s ruling. 8. A brief background of the Appellant’s Claim is that by a Statement of Claim dated 10th December 2022, the Appellant described the nature of his Claim as “A Contract relating to money had and received on or about 9th April 2020 in the sum of 743,000/=”. 9. His claim was that on or about 9th April 2020, he entered into an agreement with Fidelis David Syima (Deceased) for the sale of a land parcel (Machakos/ Kiandani/5341) at Kshs.2,300,000/= and the Appellant paid a total of Kshs.1,943,000/=. That he paid a sum of Kenya shillings (1,943,000/=) to Fidelis David Syima (Deceased) and the 1st Respondent was a witness during the time of payment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7066/eng@2026-03-23 2

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Upon the demise of Fidelis David Syima, the Respondents retracted on the agreement and coerced the Appellant to accept a refund of Kshs.1, 200,000/=. On various dates they held a meeting with the Respondents in view of resolving the matter but the meeting bore no fruits. The Appellant proposed to the Respondents that they seek the services of a Mediator to assist in reaching an amicable conclusion to the sale but the Respondents did not cooperate. On the 8th of November 2021 they held another meeting with the Respondents but they turned to be hostile, making it clear to the Appellant that they have no intention whatsoever to honour the agreement between the Appellant and the deceased thus necessitating the filing of the Claim before the Small Claims Court. 10. In opposing the Claim, the Respondents entered appearance and filed a Response to the Statement of Claim dated 2nd May 2023 in which they denied the Claim and averred that if any agreement was entered into, then the same was between the Appellant and the deceased person who is not a party to the Claim and the Respondents are not privy to the alleged contract. 11. The Respondents further averred that the suit is incompetent and bad in law as the alleged party to the contract is now deceased and no letters of administration had been taken out in respect to his estate, as such any dealings with his estate would amount to intermeddling. The Respondents denied the jurisdiction of the SCC and put the Appellant on notice that they shall raise a preliminary objection to that effect at the earliest opportunity. 12. True to their notice, the Respondents filed a Notice of preliminary objection dated 17th May 2023 challenging the jurisdiction of the SCC to hear and determine the suit as the subject matter giving rise to the suit is transfer of land which is excluded from the jurisdiction of the SCC. 13. I have keenly looked at the Claim, the Appellant contends that he entered into an agreement with Fidelis David Syima (deceased) in which the deceased was to sell him a parcel of land (Machakos/ Kiandani/5341 at Kshs.2,300,000.00 for which the Appellant paid Kshs.1,943,000.00 and Paschalina M. Titus was a witness during some of the payments. Upon the demise of Fidelis David Syima, the Respondents retracted on the agreement and coerced the Appellant to accept a refund of Kshs.1,200,000.00. The Appellant is therefore claiming for the balance of Kshs.743,000.00. 14. This Court has established that the transaction giving rise to the Appellant's claim for Kshs.743,000.00 is founded on an agreement between the Appellant and the Fidelis David Syima (deceased). The Appellant can only claim the same from the estate of the deceased or the deceased’s legal representatives legally appointed by the court. Once the deceased died, no one including his widow or children had any legal right to purport to deal with his assets including entering into the purported Deed of Refund dated 8th November 2021 which they had no legal capacity to enter. This court finds that the said Deed of Refund is null and void ab initio and could not have been relied upon by the Appellant to make the claim herein in the first place. 15. On the foregoing analysis alone, the claim was incompetent bad in law, misconceived and a non-starter. 16. On the issue of jurisdiction, the Supreme Court in the matter of the Interim Independent Electoral Commission, S.C. Constitutional Application No. 2 of 2011; [2011] eKLR, and in Samuel Kamau Macharia and Another vs. Kenya Commercial Bank Limited and 2 Others [2012] eKLR, held that the assumption of jurisdiction by Courts in Kenya, is a subject regulated by the Constitution, Statute Law, and Judicial Precedent. The Supreme Court stated: “ A Court’s jurisdiction fiows from either the Constitution or legislation or both. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7066/eng@2026-03-23 3

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of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity”. 17. In Motor Vessel “Lillian S” vs. Caltex Oil Kenya Limited (1989) KLR 1, this Court succinctly set out the principles and context for determination of jurisdiction. Nyarangi, JA stated, inter alia: “ Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 18. It is trite law that where Constitution or Statute confers jurisdiction upon a court, tribunal, person, body or any authority, that jurisdiction must be exercised in accordance with the Constitution or the Statute conferring it. See Secretary, County Public Service Board & Another vs. Hulbhai Gedi Abdille [2017] eKLR where this Court expressed itself as follows: “ Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum” 19. The Small Claims Court retains its jurisdiction under the provisions of Section 35 (5) of the Small Claims Act which provides that:“ A claim shall not be brought before the court if the cause of action is founded upon defamation, libel, slander, malicious prosecution or is upon a dispute over title to or possession of land or employment” 20. As already observed, the nature of the Appellant’s Claim as per the Statement of Claim dated 10th December 2022 is described as “A Contract relating to money had and received on or about 9th April 2020 in the sum of 743,000/=”. No doubt, this has nothing to do with “title to or possession of land” as provided for under Section 35(5) of the Small Claims Act and therefore the Small Claim’s Court would have had the jurisdiction to hear and determine the same if the Respondents had the legal capacity to enter into the Deed for Refund dated 8th November 2021and to sue or be sued on behalf of the Appellant 21. The Respondents are not sued either as legal representatives of the deceased or as the Administrators to his estate with regard to the amount claimed by the Appellant that was paid to the deceased and which in any event could only form part of the deceased’s estate. 22. The law on preliminary objections is now settled and admits of no controversy. A preliminary objection is a drastic procedural device whose effect, if upheld, is to terminate a suit without the benefit of a hearing. For this reason, courts have consistently held that the threshold for a competent preliminary objection is deliberately high and must be strictly satisfied. It is my considered view that the preliminary objection dated 17th May 2023 fell short of the provision of Section 35(5) of the Small Claims Court, However, based on my finding on the legality of the purported Deed or Refund and the legal capacity of the Respondents to be sued for refund of monies paid to the deceased, this court finds the appeal to be without merit. 23. Further, this court finds the Appeal herein to be incompetent in so far as the Appellant has appealed on matters of fact as seen in his four grounds of appeal in contravention ofSection 38 (1) of the Small Claims Court Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7066/eng@2026-03-23 4

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24. The upshot is that the appeal is dismissed. Each party to bear their own costs. 25. It is so ordered. File closed. JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 23RD MARCH 2026 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 23RD MARCH 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7066/eng@2026-03-23 5

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