Wamedi v Mwalughongo [2025] KEHC 7101 (KLR)

Wamedi v Mwalughongo (Civil Appeal E069 of 2024) [2025] KEHC 7101 (KLR) (30 May 2025) (Judgment)

Neutral citation: [2025] KEHC 7101 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E069 of 2024

AN Ongeri, J

May 30, 2025

Between

Bolson Mwasingo Wamedi

Appellant

and

Onesmus Mwalughongo

Respondent

(Being an appeal from the Judgment of Hon. S. M. Musili (RM/Adjudicator) in Taveta SCCC No. E013 of 2024 delivered on 12th April 2024)

Judgment

1. The Appellant was the Claimant in Taveta Small Claims Court No. E013 of 2024 where he was seeking Kshs. 70,000/= following a settlement agreement with the Respondent to pay him Kshs. 120,000/=.

2. The Respondent denied the claim and said they had a business venture which went sour in respect of gemstone investment where each contributed Kshs. 120,000/=

3. The Respondent admitted refunding Kshs. 50,000/= but said it was due to coercion.

4. The trial court entered judgment in favour of the Appellant against the Respondent and allowed the Respondent to pay instalments of Kshs. 7,000/= per month until payment in full.

5. The Appellant is aggrieved with the order allowing the Respondent to pay by instalments and has appealed to this court on the following grounds:-i.That the learned Honourable Magistrate erred in law and in fact by ordering the Respondent to pay the principal sum in installments yet there was no proposal made and accepted by the Appellant.ii.That the learned Honourable Magistrate erred in law and facts by wearing the hat of the Respondent and sympathized with him thus arriving at a weird conclusion.iii.That the Honourable Magistrate erred in law and facts and misdirected himself by acting on wrong and unsound principles and provisions of the law.

6. The parties filed written submissions as follows:- the appellant submitted that the trial magistrate went beyond his discretion in allowing the decretal sum to be paid in monthly installments.

7. That the parties had duly executed the agreement dated 24/11/2021 and no traces of vitiating factors could be deduced from the agreement. The appellant argued that the trial court made findings on issues that were not raised.

8. Further, that the trial court was to base all its arguments on the validity of the contract and whether there was breach of the same and its legal consequences.

9. The respondent alternatively submitted that from a plain reading of Section 36 (1) (a) of the Small Claims Court Act, the trial court is empowered to determine how a decretal sum is to be paid; either in lump sum or in instalments and such an order does not require the consent of the parties.

10. That this provision enhances the court’s role in ensuring expedient and practical justice the cornerstone of the Small Claims Court’s purpose by avoiding unnecessary procedural delays such as post-judgement application for instalment payment.

11. This being an appeal from the Small Claims Court the only basis is that the same can only be entertained on issues of law and not fact.

12. The sole issue for determination was whether the trial Magistrate erred in law and in fact by ordering the Respondent to pay the principal sum in installments yet there was no proposal made and accepted by the Appellant.

13. Under Section 36(1)(a) of the Small Claims Court Act, the court is expressly empowered to order payment of a judgment debt "in a lump sum or in such instalments and at such times as the Court may determine."

14. This provision grants the court discretionary authority to structure payment terms without requiring the parties' consent, aligning with the Act’s objective of delivering expedient and practical justice.

15. The Respondent correctly relied on this statutory mandate, which underscores the court’s role in ensuring equitable enforcement of decrees while considering the parties’ circumstances.

16. The Appellant’s argument that the magistrate overstepped by ordering instalments unsupported by evidence or agreement is untenable.

17. Kenyan courts have consistently upheld judicial discretion in tailoring payment terms to prevent undue hardship while ensuring decree-holders recover their dues.

18. In the case of Equity Bank Ltd v. Bruce Mutie Mutuku t/a Diani Tour Travel [2016] eKLR, the High Court affirmed that courts retain inherent authority to order instalment payments where justified, even absent party consent, provided the decision is rational and grounded in fairness.

19. Similarly, in Muriithi v. Waweru [1982] KLR 150, the Court of Appeal emphasized that instalment orders are a legitimate exercise of discretion to balance the interests of both parties.

20. The Appellant’s contention that the magistrate "sympathized" with the Respondent is speculative and unsupported by evidence.

21. Judicial discretion must be presumed regular unless proven otherwise (Mbogo v. Shah [1968] EA 93). Here, the trial court’s decision was anchored in statutory authority and practicality, not extraneous considerations.

22. I find that the Appellant failed to demonstrate how the instalment order violated legal principles or prejudiced his rights.

23. Regarding the claim that the magistrate acted on "wrong and unsound principles," the Appellant did not identify any misapplication of the law.

24. The Small Claims Court’s mandate under Section 38 of the Act limits appeals to points of law, not factual assessments.

25. The instalment order was a procedural measure squarely within the court’s jurisdiction, and no illegality or irrationality has been shown.

26. In conclusion, the appeal is dismissed since the trial court’s decision was lawful, discretionary, and consistent with the Small Claims Court Act’s objectives.

27. I find that the appeal raised no substantial point of law warranting cost-shifting.

28. The appeal is dismissed.

29. Each party to bear its own costs of this appeal.

DATED, SIGNED AND DELIVERED THIS 30TH DAY OF MAY, 2025 IN OPEN COURT AT VOI.ASENATH ONGERIJUDGEIn the presence of:-Court Assistant: Millicent