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06/07/2026

Dear diary,

I love it when I read a judgment and catch myself smiling. Some judges just have a way with words. Hebu take a look at this line from one of the cases that will feature in today’s page:

Human beings are notoriously bad at predicting what makes them happy but the happy-o-meter for lawyers is known to reach the full five bars when legal fees are received.

~Murunga J. in HCCSCA No. E323 of 2025

1. Can a bank prove it paid a law firm using only its own internal records? - The answer according to HCCSCA No. E323 of 2025 is NO.

   In that case (Consolidated Bank of Kenya Ltd v Muteithia Kibira Advocates [2026]), the Bank argued that it had already paid a deposit towards the firm’s legal fees and that requiring it to pay the full fee note would amount to unjust enrichment. To support its case, it produced internal approval documents, including maker-checker stamps and a payment schedule.

   The High Court, however, found that those documents only proved that the Bank had processed payment internally and not that the law firm had actually received it. The Court reiterated that the burden of proving payment rests on the party alleging it and that invoices, payment schedules, or internal approvals are no substitute for proof of actual receipt. Specifically, the court stated: (loved this line too btw)

   “The proof of the pudding is in the eating, not in the preparation of the pudding. The proof of payment of legal fees is the receipt of the fees, not in the preparation of payment.”

   Takeaway: If you’re claiming you’ve paid, be prepared to prove that the money actually reached the other party. Not merely that your organisation approved or processed the payment.

2. When should a judge recuse him/herself from sitting in a case? - Everything you need to know about recusal is well captured in the Supreme Court case of Rai and the CoA case of Rawal. By reading the two cases, you will find that the answer to the question above is that not every connection or acquaintance requires recusal. There is a test for when to recuse or not to recuse.

   The test isn’t whether the judge believes they can be impartial. It is whether a fair-minded and informed observer, having considered all the circumstances, would conclude that there is a real possibility of bias. More often than not, it will suffice for a judge to make disclosures on the relationships with the parties that may create a perception of bias.

   A judge should consider recusal where there is:

   i. a personal bias or prejudice;

   ii. a financial or personal interest in the outcome;

   iii. prior involvement in the matter;

   iv. personal knowledge of disputed facts; or

   v. any other circumstance that would cause a reasonable person to question the judge’s impartiality.

   But: judges are human too. Simply knowing a party, attending the same school years ago, belonging to the same professional circles or having previously ruled against an advocate does not, by itself, justify recusal. Otherwise, litigants could simply “judge-shop” by making allegations of bias whenever they disliked the assigned judge.

   Takeaway: Recusal is about protecting public confidence in the administration of justice, not accommodating every allegation of bias. The standard is objective, not subjective.

3. Did you know that the small claims court jurisdiction has an expiry date? Well, Section 34(1) of the Small Claims Court Act states that all proceedings should be heard and determined within 60 days of filing. Section 34(2) adds that judgment should be delivered the same day as the hearing date and in any event not later than 3 days from the hearing. Now, this brings about a new interesting question: if a judgment is delivered past the above statutory period, is it null? The Kenyan High Court seems to be split on this. On the one hand, some judges hold that the 60‑day limit is jurisdictional (so a judgment delivered after 60 days is void); while on the other side they hold that the time limit is directory/aspirational (so lateness alone does not void the judgment unless prejudice or other illegality is shown).

   Here are some decisions showing the split that are worth reading:

   1. Kartar Singh Dhupar & Company Limited v ARM Cement PLC (In Liquidation) [2023] - held that a judgment delivered outside the 60 days was a nullity because the court acted outside the statutory time-bound jurisdiction.

   2. Macharia v Wanjohi t/a Gitonyi Supplies & Services [2025] - expressly rejected the “directory” argument in case (e) below (the Majanja one); held section 34 is unambiguous and late judgment defeats the Act’s purpose; judgment set aside as a nullity.

   3. Muiruri v Mkalama [2025] - held section 34(1) is mandatory; proceedings after lapse of 60 days were without jurisdiction; judgment declared null and void.

      Now onto ones that do not support the argument of such judgments being a nullity:

   4. Kituo Cha Sheria v Gil Adiz Advertising Company Ltd [2023] - held section 34(1) is directory, and delay alone does not void proceedings especially if there isn’t evidence of prejudice and/or inordinate delay.

   5. Crown Beverages Limited v MFI Document Solutions Limited (Civil Appeal E833 of 2021) [2023] - Majanja J. held that Section 34(1) is meant to be directory and not mandatory as it is not the intention of the SCCA to invalidate any proceedings that violate the statutory timelines. To adopt such a position would undermine the statutory objects and cause injustice to the parties as the case would have to be reheard.

Takeaway: While there appears to be a split, recent case law seems to view Section 34 as a mandatory statutory time limit after which the small claims court’s jurisdiction is stripped.

Did I miss a legal update, judgment, gazette notice, or development worth knowing about? Drop it in the comments. My future self (and possibly other confused law students) will thank you :)

Legally yours,
Rose.