High Court 11515 of 2026

i. That the Learned Adjudicator erred in law and in fact in failing to enter default Judgment against the Respondent who had been served and failed to enter defence as by law required. ii. The Learned Adjudicator erred in law and in fact in failing to take into consideration the Respondent acknowledgment (admission) of indebtedness to Claimant. iii. The Learned Adjudicator erred in law and in fact in failing to review the judgment of the Court, where an obvious error of law was present on the record. iv. The Learned Adjudicator erred in law in arriving at a totally erroneous decision and occasioning grave injustice to the Appellant. 2. The only party who filed submissions in the matter is the appellant despite the court indulging the respondent on 24th July 2024 when he appeared in person. The matter was scheduled for mention on 16 th October 2024 after the respondent pleaded with the court for some time to enable him file submissions claiming not to have been served. 3 . On the 16th October 2024 the respondent did not appear and there were no submissions by him on record. The appellant’s counsel requested for Judgment and this court reserved the same for the 17th December 2024. 4. The judgment was not ready owing to pressure of work due to the myriad of cases this court was assigned to deal with during the longest Rapid Results Initiative ever in the history of the High Court of Kenya. 5. The court therefore proceeded to write the judgment since as late as the 21 st February 2025, the respondent had not complied with the court order directing him to file written submission. APPELLANTS CASE NAIROBI HC CIVIL APPEAL NO E 173 OF 2023 - JUDGMENT, Exportex Company Limited –vs Ronald Kimutai Yano 2

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6.The Appeal arises out of a judgment of the Small Claims Court dismissing the Appellant's claim. 7. The bone of contention is that this was a liquidated claim and that despite the Respondent having appeared in the matter, he failed to file a Defence and or response to the claim. 8. The appellant has argued that Under Section 27 (1) of the Small Claims Act, and upon the Application of the Applicant, the Adjudicator ought to have entered a final judgment in view of the respondent’s default. 9. According to the appellant, the Adjudicator dismissed the Claimant's claim by malice and injudicious ill will. 10. The appellant contends that he adduced evidence of the Respondent admitting the claim to the Advocate of the Claimant by way of an Email and that the email was not discounted by the respondent. 11. The appellant further argues that he applied for review of Judgment dismissing the claim and sought to adduce further evidence (that had been unavailable during the trial) and that the Application for review though duly served upon the Respondent to the satisfaction of the Court, and considering that it was unopposed the Court declined to review its Judgment to the chagrin and injustice to the Claimant. 12. The appellant submitted that this was always a Section 27 of the Small Claims Court Act Claim. A legitimate claim had been filed and service effected. As proof thereof the appellant argued that the Respondent appeared in Court and even sought time to file a response just like he did at the hearing of the instant appeal. 13. The Respondent did not file a response to the claim thus the same was undefended. According to the appellant the Court was thus enjoined to enter Judgment for the Claimant this being a liquidated claim. NAIROBI HC CIVIL APPEAL NO E 173 OF 2023 - JUDGMENT, Exportex Company Limited –vs Ronald Kimutai Yano 3

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14. The appellant went on to argue that no further proof than that on the record was necessary. 15. At the instance of the court the appellant filed submissions in support of his claim on 9th September 2022. 16. The appellant however, argued that, from the terse judgment of the Small Claims Court, it was apparent that the Submissions made by him were not considered at all. 17. The Court did not indicate in which way or manner the evidence of the Claimant fell short of the required standard. There being no traverse or denial of the claim or its particulars, the appellant contends that it was the Court's duty to give reasons why the claim was being rejected. The appellant went further to argue that, the application for review was rejected for no reasons. 18. According to the appellant The Small Claims Court Act under Section 3 and 41 as well as Order 29 (1) Small Claims Rules 2019 the law recognizes that parties can apply for review in a like make as the applications for review under the Civil Procedure Act. 19. In the appellants view, the Small Claims Court appeared quite disinclined to achieve justice in this matter by its cursory and casual treatment of a claimant of justice before it. 20. The appellant highlighted in his submissions the documents below as the evidence he was relying on to prove his case;a). Email correspondence between the Respondent's Bank and the Claimant outlining negotiations for the payment, the transfer of the Claimant's Prime Mover and Trailer Registration No KCJ 290A and ZF 9449 respectively. b) Demand for payment out setting the unpaid balance. NAIROBI HC CIVIL APPEAL NO E 173 OF 2023 - JUDGMENT, Exportex Company Limited –vs Ronald Kimutai Yano 4

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c) Pleadings by the 2nd Respondent which form part of the Court record. d)Acknowledged existence of the contract and the unpaid balance. 21. Further, the appellant sought to adduce by way of additional evidence: a) The Sale Agreement for the Prime Mover and Trailer Registration No KCJ 290A and ZF 9449 respectively; b) An Email from the Respondent acknowledging indebtedness to the Claimant and seeking a payment plan. It is this evidence that the appellant contends was locked out by the adjudicator through improper exercise of discretion. 22 . According to the appellant the material comprised overwhelming proof of indebtedness and the Court acted unjustly by claiming that there was no sufficient evidence tendered. 23. The appellant submitting on the Undefended Liquidated Claim, argued that the Respondent though served did not deem it necessary to defend the claim. The Court record shows him asking for time to file his response which record puts the issue of service beyond peradventure. 24. In the appellants view the Court was enjoined under Section 27 of the Small Claims Act to enter judgment in default. 25. The appellant submitted that the Claim was for a liquidated amount of Kshs. 265,038/- together with interest at commercial rate of 15% for the period of default worked out as: -15% x 265,038 x 13 = Kshs. 1,630,722/ 26. He went further to submit that even if this Honourable Court was to award interest at Court rate, the figure would be 12% x 265,038 x 27 (months) i.e from July 2021 = Kshs. 1,033,500/ and with the forfeiture of the sum above One Million the award will still be Kshs. One (1) Million. (Kshs. 1,000,000/-). NAIROBI HC CIVIL APPEAL NO E 173 OF 2023 - JUDGMENT, Exportex Company Limited –vs Ronald Kimutai Yano 5

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27. The appellant submitted that he was willing to forfeit the amount above One (1) Million Shillings as he had already done so in the Small Claims Court. 28. The purchase of the Prime Mover and Trailer Registration No KCJ 290A and ZF 9449 respectively was being financed by the 2nd Respondent Faulu Micro Finance Bank. The Claimant furnished correspondence outlining the transfer of the joint Registration of the 1st Respondent and 2nd Respondent. Ultimately, the numerous requests for settlement of the balance and the acknowledgement that the suit amount were ultimately not met. 29. The Claim against the 2nd Respondent was withdrawn by consent. Their pleadings formed and still form a legitimate part of the Court record. 30. The appellant contends that despite submission to that effect, the Trial Court ignored both the pleadings and the submissions to arrive at the decision that the Claim was not proved. 31. The appellant therefore urges this court to find that the case was adequately proved and that the decision of the learned honorable magistrate was against the weight of evidence. 32. In support of the appellant’s plea for review, the appellant stated that the Sale Agreement for the sale of Prime Mover and Trailer Registration No KCJ 290A and ZF 9449 respectively had been misplaced by the Claimant and when the trial Court indicated that there was insufficiency of evidence, the Claimant went to the 2nd Respondent, begged and pleaded until the 2nd Respondent who was no longer a party to the proceedings relented and gave him a copy. NAIROBI HC CIVIL APPEAL NO E 173 OF 2023 - JUDGMENT, Exportex Company Limited –vs Ronald Kimutai Yano 6

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33. Upon receipt of the document the Claimant made an application for review to bring this crucial evidence to the attention of the Court. The request for review was rejected by the court and in the appellants view, the Ruling of the Trial Court in the Application was akin to suggesting that the Small Claims Court Act does not countenance an application for review. The appellant went further to argue that had this been the case nothing would have been easier than for parliament and drafters of the legislation to say so. 34. According to the appellant the Trial Court did not make a finding that the evidence was irrelevant nor that there was insufficient evidence of its unavailability during the filing of the Claim. The appellant went further and submitted that even if the new evidence was to be disallowed the evidence on record was not still sufficient to find for the Claimant. 35. Flowing from the above the appellant contended that a final judgement can be entered where the suit is for a liquidated demand only and cited the case of Charles Mwalia vs. The Kenya Bureau of Standards [2001] 1 EA 151, where Ringera, J (as he then was) held that: “A liquidated demand is in the nature of a debt, a specific sum of money due and payable under or by virtue of a contract. Its amount must either be ascertained or capable of being ascertained as a mere matter of arithmetic. If the ascertainment of a sum of money, even though it be specific or named as a definite figure requires investigation beyond mere calculations, then the sum is not a “debt or liquidated demand”, but constitutes “damages”…The words “debt or liquidated demand” do not extend to unliquidated damages, NAIROBI HC CIVIL APPEAL NO E 173 OF 2023 - JUDGMENT, Exportex Company Limited –vs Ronald Kimutai Yano 7

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whether in tort or contract, even though the amount of such damages be named as a definite figure.” 36. The appellant further cited the case of J C Eksteen vs. Kutusi S/O Bukua [1951] LRK 90 where it was held that: “For an action to constitute a liquidated demand it is sufficient that it should state the amount demanded and give sufficient particulars of the contract to disclose its nature.” ANALYSIS AND DETERMINATION 37. The respondent in this appeal did not file submissions in answer to the appellant’s case. 38. The court has however reviewed all the material placed before the learned honorable magistrate in respect of the claim. It is no doubt that this is a case of the appellant seeking the recovery of a liquidated claim as particularized in the statement of claim against the 1st respondent. 39. The 1st respondent did not defend the suit as well as this appeal. The learned adjudicator found that the evidence adduced in support of the claim and proceeded to dismiss the same. The appellant did not tire and he sought a review of the adjudicators decision but that was declined too. The appellant in this court’s view explained sufficiently why he had not annexed the agreement for sale in the first instance and this court find the explanation to have been plausible. 40. It is the view of this court that the adjudicator in dismissing the review application did not pay much attention to the provisions of Article 159 of the Constitution which essentially decrees that courts should be able to dispense justice without undue regard to technicalities. The courts must seek to do justice all the time to those that come before it. NAIROBI HC CIVIL APPEAL NO E 173 OF 2023 - JUDGMENT, Exportex Company Limited –vs Ronald Kimutai Yano 8

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41. Whereas it is true that a party must file all the documents in support of the claim, the law allows a party to seek the review of a decision upon the discovery of a new and important matter that through exercise of due diligence could not have been brought to the attention of the court in the fisrst instance to be received in evidence as additional evidence. See Owners of Motor Vessel ‘Dolphin Star’ vs ET Timbers PTE ltd.(civil Appeal (Application) E078 of 2021) {2024}KECA 37 (KLR)( 26th January 2024) Ruling. 42. The additional evidence must be directly relevant to the matter before court and be in the interest of justice. 43. The material that the appellant in their review application sought to introduce in this courts view was material that was directly relevant to the matter and sufficient grounds were advanced why the document was not filed together with the claim. In the interests of justice that evidence should have been admitted by the court. 44. It is also clear that the document would have influenced the decision of the court or impacted upon the verdict. 45. It may be argued here that the sale agreement was all along there and that it was not a document that was new. Whereas that may be true, here is a litigant who has come to the court and said, ‘’look, I could not produce this piece of evidence in the first instance because it was in the hands of my adversary who at the time a party to the suit but against whom proceedings have since been withdrawn and following the withdrawal the document has now been released to me. Please look at the document and review your decision.’’ 46. The question that immediately arises is whether such material evidence coming into the possession of a litigant in those circumstances can NAIROBI HC CIVIL APPEAL NO E 173 OF 2023 - JUDGMENT, Exportex Company Limited –vs Ronald Kimutai Yano 9

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qualify to be classified as ‘new evidence’? I would think so. The court of Appeal in the authority cited stated that all that a litigant needs to show is that the evidence could not be obtained with reasonable diligence for use at the trial in a case where additional evidence is sought to be introduced on appeal. In the instant case the evidence was intended to be introduced in the trial court thus the learned adjudicator ought to have considered the interests of justice in determining the review application seeking to introduce that evidence. 47. The circumstances of this particular case are that the 1 st respondent has offered no answer to the claim. It would in my view be a great travesty of justice to deny the appellant relief in the circumstances through mere technicalities of procedure. 48. The adjudicators decision simply did not factor the claim being a liquidated undisputed claim. In Cimbria East Africa Limited vs. Kenya Power & Lighting Company Ltd [2017] eKLR, Ochieng, J stated as follows: “Black’s Law Dictionary defines Liquidated Claim thus; ‘1.A claim for an amount previously agreed upon by the parties or that can be precisely determined by operation of Law or by the terms of the parties agreement. 2.A claim that was determined in a judicial proceeding’. 49. The aspect of the claim being on the basis of a previously agreed amount meaning therefore that once the claim is made and there is no denial by the respondent that there was such an agreement, then by operation of the law the same is recoverable rendering it unnecessary to NAIROBI HC CIVIL APPEAL NO E 173 OF 2023 - JUDGMENT, Exportex Company Limited –vs Ronald Kimutai Yano 10

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produce the agreement between the parties provided that the claimant can show that there was such an agreement. 50. The figure claimed by the appellant did not require further investigation beyond what was pleaded. 51. To my mind the appellants claim against the 1st is in the nature of a debt, a specific sum of money due and payable under or by virtue of a contract and the amount claimed is ascertained or capable of being ascertained as a mere matter of arithmetic. It is a specific sum of money which does not require any further step to be taken in order to ascertain the sum due save for the calculation. The appellant has been very specific that all he is claiming against the 1 st respondent is a debt of Ksh 1million. In my view what was before the court was a liquidated demand and final judgement ought to have been entered 52. That was the position in Coach Safaris Ltd. vs. Gusii Deluxe Ltd. Civil Appeal No. 117 of 1996 where the Court of Appeal held that formal proof is unnecessary in liquidated claims where ex-parte judgement has been entered and the formal proof, if carried out, is a nullity. 53. In the end this court allows the appeal with costs to the appellant. The respondent is to pay to the appellant the sum of Ksh 1 million with interest at court rates from the date of the filing of the suit. It is so ordered. DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 15TH day of JANUARY, 2026. NAIROBI HC CIVIL APPEAL NO E 173 OF 2023 - JUDGMENT, Exportex Company Limited –vs Ronald Kimutai Yano 11

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A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Mwangi for the Appellant Respondent absent NAIROBI HC CIVIL APPEAL NO E 173 OF 2023 - JUDGMENT, Exportex Company Limited –vs Ronald Kimutai Yano 12

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