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Small ClaimsPartially AllowedKitale SCC CC. No. E033 of 2024

Omukuti v Ngeny (Commercial Case E033 of 2024) [2024] SCC 18 (KLR)

Small Claims Court
16 May 2024
TOT.O. Omono
1,072 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Winning in court still requires proof for every claim, even when the other side never shows up — this claimant got Kshs. 30,000, not 55,000.

What this practically means

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Executive summary

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The Claimant sued the Respondent in the Small Claims Court at Kitale, seeking judgment of Kshs. 55,000/= and costs, after two Ayrshire cows he purchased from the Respondent for Kshs. 49,000/= under a sale agreement dated 5th May 2023 died shortly after delivery. The Respondent neither entered appearance nor participated, so the matter proceeded by formal proof. The Adjudicator, T.O. Omono, framed two issues: whether the claim was proved, and the costs due. Applying the Court of Appeal's decision in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the court held that a claimant must prove his case to the required standard even against an absent defendant. Documentary evidence — a Permit to Move Livestock, a Herd Health Assessment Report and a Veterinary Death Certificate — proved that one cow, Zawadi, was treated for acute leptospirosis and died of an advanced bacterial disease. This established a breach of the implied term of the contract of sale that the cow was in good health, entitling the Claimant to Kshs. 24,000/= (the assessed value) plus Kshs. 6,000/= treatment costs. However, the Claimant led no documentary evidence of the second cow's death, and the court declined to speculate that it died in similar circumstances. Judgment was entered for Kshs. 30,000/= with interest at court rates from filing, and costs assessed at Kshs. 10,000/= under section 33(1) of the Small Claims Court Act and Rule 37 of the Small Claims Court Rules. The claim was thus partially allowed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant proved his claim
  2. 2.What are the costs due to the Claimant, if any

Key legal issues

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01

Whether the Claimant proved his claim for Kshs. 55,000/= despite the Respondent's non-participation

Holding

Claim partially proved: only the death of the cow Zawadi was proved to the required standard; the death of the second cow was not

Reasoning

In formal proof proceedings the claimant must still prove the claim to the required standard. Documentary evidence (Permit to Move Livestock, Herd Health Assessment Report, Veterinary Death Certificate) proved purchase of the two cows, illness, treatment of Zawadi, and her death from an advanced bacterial disease, establishing breach of the implied term of the sale that the cow was in good health. But no documentary evidence corroborated the oral testimony on the second cow's existence and death, and the court declined to speculate.

p. 4
02

Assessment of costs in a formal proof matter under the Small Claims Court Act

Holding

Costs assessed at Kshs. 10,000/= guided by section 33(1) of the Small Claims Court Act and Rule 37 of the Small Claims Court Rules (Second Schedule)

Reasoning

Section 33(1) of the Small Claims Court Act grants the court discretion to award costs, and Rule 37 of the Small Claims Court Rules directs the court to be guided by the Second Schedule in assessing costs recoverable under section 33(1). Considering that the matter proceeded by way of formal proof, the court assessed costs at Kshs. 10,000/=.

p. 4

Legal principles established

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  • Even in uncontroverted/formal proof proceedings, a claimant is duty-bound to prove their case to the required standard
  • A court may not presume facts from one proven event and extend them to another unproven event

Court orders

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  1. 1.Judgment entered against the Respondent for Kshs. 30,000/= (Kshs. 24,000/= being the value of the dead cow and Kshs. 6,000/= being the cost of treating the dead cow)
  2. 2.The sum of Kshs. 30,000/= shall attract interest at court rate from the date of filing the claim till payment in full
  3. 3.The Claimant shall have the costs of the claim assessed at Kshs. 10,000/=

The bench

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One judgment of the whole court — no separate or dissenting opinions.

TO
T.O. OmonoAdjudicator
majority

Wrote the judgment

Jurisdiction invoked
Small Claims Court Act (jurisdiction of the Small Claims Court under section 32 and 33 thereof; judgment does not cite a specific constitutional provision)

Relief refused

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Judgment in the sum of Kshs. 55,000/= as claimed

The court awarded only Kshs. 30,000/= because the Claimant did not prove the death of the second cow, which was supported only by oral evidence without documentary corroboration

p. 4

Costs

The Claimant shall have the costs of this claim assessed at Kshs. 10,000/= (Kenya Shillings Ten Thousand) only

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a) Judgment is entered against the Respondent for the sum of Kshs. 30,000/=(Kenya Shillings Thirty Thousand) only Kshs. 24,000/= being the value of the dead cow and Kshs. 6,000/= being the cost of treating the dead cow
p. 4Final orders – judgment amount
The upshot of the foregoing is that:
p. 4Disposition
c) The Claimant shall have the costs of this claim assessed at Kshs. 10,000/=(Kenya Shillings Ten Thousand) only
p. 4Costs order
That will be descending into the arena of surmises, imaginations, and speculations which invitation this court declines to honour.
p. 3Standard of proof – no speculation
That was a clear breach of an implied term of the contract of sale between the Claimant and the Respondent that the cow bought was in good health.
p. 3Implied term in contract of sale of livestock

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omukuti v Ngeny (Commercial Case E033 of 2024) [2024] SCC 18 (KLR)", Case Analysis (2024). Kitale SCC CC. No. E033 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2024/18/eng@2024-05-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.