A businesswoman who supplied groceries to a restaurant based on orders placed through WhatsApp is set to recover nearly Sh1 million after the High Court struck out an appeal challenging a Small Claims Court award in her favour.

The High Court ruled that the restaurant's appeal was invalid because it did not include the official court order it was seeking to overturn. As a result, the judge said, the court could not consider the appeal's complaints regardless of their merits.

"The appeal is incompetent. The upshot is that the notice of motion filed in January 2026 is dismissed and the appeal herein is struck out," the judge said in a ruling delivered on July 31, 2026.

The dispute arose from an oral agreement under which Karen Kinya supplied groceries to Maasai Bar & Restaurant's chain of establishments on credit.

After the restaurant failed to settle the outstanding balance, Ms Kinya moved to the Small Claims Court, which found that she had proved her claim through WhatsApp conversations showing that the restaurant had placed the orders and that the goods were subsequently delivered.

In court documents filed in November 2024 before the Small Claims Court in Mombasa, Ms Kinya sought payment for the value of the groceries she said she had supplied, along with damages for breach of contract, interest and the costs of the suit.

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Restaurant denies claim

Gavel on table against background of Whatsapp — The dispute arose from an oral agreement under which Karen Kinya supplied groceries to Maasai Bar & Restaurant's chain of restaurants.

Photo credit: Shutterstock

According to Ms Kinya, the restaurant's employees placed the orders mainly through a WhatsApp group known as Maasai Veges & Fruits, on the understanding that payment would be made upon the issuance of invoices.

The restaurant denied the claim, insisting there was no oral agreement between the parties and that it had no relationship with the various restaurant entities Ms Kinya named. It maintained that it had never received the goods, and argued that she had failed to produce stamped delivery notes or invoices or to show how the amount claimed had been calculated.

After considering the evidence, the Small Claims Court found that an implied contract existed between the parties and that Ms Kinya had supplied the groceries listed in her claim. Judgment was entered in her favour for Sh991,240, together with interest from the date of judgment and the costs of the suit.

The magistrate found that the WhatsApp messages, together with the other evidence presented, were sufficient to establish that the orders had been placed and the goods supplied.

Unhappy with the decision, the restaurant appealed to the High Court, arguing that the WhatsApp exchanges could not prove the goods had been delivered and that there were no signed delivery notes to support the claim. It raised 15 grounds of appeal, accusing the trial magistrate of drawing wrong conclusions from the pleadings, evidence and submissions, and of taking irrelevant considerations into account.

Among its arguments, the restaurant contended that there was no proper tabulation to justify the amount awarded and that the magistrate had failed to adequately consider its evidence and submissions before entering judgment against it. It asked the High Court to set aside the judgment and award it the costs of the appeal.

Court records show that when the appeal came up for directions on July 30, 2025, the High Court admitted the record of appeal on condition that the restaurant filed a hard copy, and directed that the matter be determined through written arguments.

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Incomplete records

Ms Kinya, however, challenged the competence of the appeal, arguing that the record filed by the restaurant was incomplete: it lacked certified trial court proceedings, the decree being appealed against, and some of her pleadings. She urged the court to dismiss the appeal without considering its merits.

Court records further show that the restaurant did not directly respond to those objections. Instead, it filed an application seeking to have the certified trial court proceedings admitted and deemed part of the record of appeal. Through its director, John Forsthy, the restaurant argued that it had applied for the typed proceedings immediately after judgment was delivered, but that the trial court delayed in supplying them despite several follow-ups.

In its analysis, the High Court found the appeal fatally defective because the restaurant had failed to include documents required by law, including a certified copy of the trial court proceedings and the decree it sought to challenge. The court also rejected the restaurant's attempt to introduce the certified proceedings later, finding that the application was made only after Ms Kinya had pointed out the omissions in her submissions.

"It is an afterthought provoked by those submissions rather than a genuine attempt to comply with the law," the judge observed.

The omissions, the judge held, were fatal and could not be cured through the subsequent application. With the appeal struck out, the Small Claims Court judgment remains in force, clearing the way for Ms Kinya to recover the Sh991,240 awarded to her.

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bocharo@ke.nationmedia.com