KImathi v Zapida Communications Ltd [2024] KEHC 3550 (KLR)

KImathi v Zapida Communications Ltd (Civil Appeal E130 of 2023) [2024] KEHC 3550 (KLR) (21 March 2024) (Judgment)

Neutral citation: [2024] KEHC 3550 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E130 of 2023

TW Cherere, J

March 21, 2024

Between

Martin kimathi

Plaintiff

and

Zapida Communications Ltd

Respondent

(Appeal against judgment and decree in Meru SCC NO. E052 of 2023 by Hon. L.W.Maina (RM) on 11th July, 2023)

Judgment

1. By judgment dated 11th July, 2023 rendered in Meru SCC NO. E052 of 2023, Respondent was awarded the sum of KES. 168,230/- which is inclusive of KES. 5,000/- for the demand letter.

2. Appellant has appealed on the ground that the sum of KES. 5,000/- was not supported by a receipt and was therefore not specifically proved.

3. Respondent concedes that no receipt for the sum of KES. 5,000/- was tendered and relies on the demand notice dated 22nd November, 2022 wherein Respondent’s advocate demanded the sum of KES. 5,000/- for writing the said demand letter.

4. I have considered the appeal in the light of the evidence on record and the submissions filed on behalf of both parties.

5. Section 38 of The Small Claims Court Act Chapter 10A provides(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.

6. I entirely agree with the persuasive decision of Magare J in Palms Resort Limited V Qureshi & 2 Others (Civil Appeal E167 of 2022) [2023] KEHC 23644 (KLR) that an appeal over evidence is an appeal of fact.

7. From the foregoing analysis, I find that this appeal which is on an issue of fact is unmerited and it is dismissed with costs to the Respondent.

DATED AT MERU THIS 21ST DAY OF MARCH 2024WAMAE.T. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MunrneFor Appellant -Mr. Mutegi for Mutegi Mugambi & Co. AdvocatesFor Respondent - Mr. Muriuki for Mbogo & Muriuki Advocates