[2023] KEHC 26662 (KLR)

Ahmed Ali Twahir t/a Kilindini Royal Transport Services v MJ Clarke Limited (Civil Suit E073 of 2021) [2023] KEHC 26662 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26662 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit E073 of 2021

DKN Magare, J

December 14, 2023

Between

Ahmed Ali Twahir t/a Kilindini Royal Transport Services

Plaintiff

and

MJ Clarke Limited

Defendant

Judgment

1. The sages always gave Credit to the people who struggle and do good to themselves. It shall never come out of a man’s mouth, that any other person is liable for their Actions. Once a person is given a gift horse, you cannot look at it in the mouth. The Plaintiff filed suit on 9/8/2021. The Defendant filed defence and counter claim.

2. The Plaintiff filed a Reply to Defence and counter claim.

3. On 21/9/2023. In the reply to defence they sated that the Plaintiff was properly terminated. They stated they had a functional NTSA. This account have the plaintiff should have transferred the vehicles to themselves.

4. They also stated that they are strangers to Motor Vehicle registration KBV 261E and KBP. Plaintiff took possession on paying deposit. He also claimed a sum of Kshs. 61,974,000/= being loss of user between 1/1/2017 to 31/7/2017.

5. They sought specific performance, loss of user of 61,974,000/= as damages, and further loss of user from 31/7/2021 till transfer. This appears to be the raison d’etre for failing to agree to supply NTSA – Tims functional NTSA account.

6. The Court gave an order on 25/1/2022 ordering that the plaintiff to accept transfer. Despite the order, this did not happen.

7. In the plaintiff the plaintiff sought orders related to 5 vehicles bought between 2013 – 2016. And for which the purchase. The plaintiff also failed to disclose that the plaintiff, collected transfer documents.

8. The parties proceed with various applications which the court dealt with. This include an application dated 6/12/2021. The plaintiff refused to supply a functional Times NTSA account. He swore a 7 – page affidavit declining a simple request for them to supply a valid TIMS Account. The Plaintiff requested for particulars which were supplied on 7/12/21. The Defendant stated that the plaintiff failed to divulge a fraudulent scheme in order to avoid paying taxes due on 20th January every year. He also failed to disclose that motor vehicle Registration No. KBV 126E and KBP 754Z were transferred to strangers after account on a false belief that the court will award damages upto the date of judgment.

9. The defendant filed defence and counterclaim. They blamed the plaintiff for failing to transfer and refusing to established maintain, an NTSA – TIMS account. They stated that Motor Vehicle Registration KBV 261E and KBP 784Z were obtained directors.

10. It was the Defendant’s case that they only guaranteed and financed. It was their case that the claims were embarrassing for lack of particularity and is intent on unjust enrichment. It was them submitted that the plaintiff failed to mitigate losses. The defence raised an issue of the claim being time-barred by dint of the operations of the law.

11. Finally, they averred that the plaintiff fraudulently concealed the fact that Motor Vehicle Registration KBV 126F and KBP 754Z in ownership status to mislead the court. They urged me to allow the counterclaim and dismiss the suit.

Evidence 12. Both parties testified and adopted their statements. The matter is fairly straight forward. The NTSA produced copies of documents, searches through the Defendant.

Analysis 13. In Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) (Presidential Election Petition 1 of 2017) [2017] KESC 42 (KLR) (Election Petitions) (20 September: -“62. On this sole important issue, the law is clear that he who alleges must proof. The term burden of proof draws from the Latin Phrase Onus Probandi and when we talk of burden we sometimes talk of onus.63. Burden of Proof is used to mean an obligation to adduce evidence of a fact. According to Phipson on the Law of Evidence, the term ‘burden of proof’ has two distinct meanings:1. Obligation on a party to convince the tribunal on a fact; here we are talking of the obligation of a party to persuade a tribunal to come into one’s way of thinking. The persuasion would be to get the tribunal to believe whatever proposition the party is making. That proposition of fact has to be a fact in issue. One that will be critical to the party with the obligation. The penalty that one suffers if they fail to proof their burden of proof is that they will fail, they will not get whatever judgment they require and if the plaintiff they will not sustain a conviction or claim and if defendant no relief. There will be a burden to persuade on each fact and maybe the matter that you failed to persuade on is not critical to the whole matter so you can still win.2. The obligation to adduce sufficient evidence of a particular fact. The reason that one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular matter. This is the evidential burden of proof. The person that will have the legal burden of proof will almost always have the burden of adducing evidence."

14. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau v. George Thuo & 2 Others [2010] 1 KLR 526 as follows:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

15. In Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR, the judges of Appeal held that:“Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will loose, because the requisite standard will not have been attained.”

16. The burden of proof is set in Sections 107 to 109 of the Evidence Act. Under Sections 107 – 109 of the Evidence Act the burden is on whatsoever alleges. The said sections state as doth: -107. Burden of proof.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. Incidence of burden.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. Proof of particular fact.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

17. The plaintiff admitted to have been given transfer documents way back from 2013. He left employment in 2018. He was the man responsible for the Defendant’s vehicles. He cannot be held that anyone else was to be responsible for his travails. He has produced no evidence that the log books were lost.

18. The least he could have done is a report to the police. Other than greed, there is no explanation why the plaintiff did not transfer. He even admitted that he was aware of forced transfer. These documents were are said to have received in 2015 or Earlier for most of the Motor Vehicles. Only one vehicle was due for transfer in 2016. I agree with the Defendant that by dint of Section 4 of the Limitation of Actions act, some claims became stale.

19. Secondly, the duty to initiate registration was on the plaintiff. He has not shown that he had registered most of the vehicles. Indeed, some were never in the names of the Defendants. Other vehicles have already been transferred to other companies instead of the plaintiff. I noted that he had insatiable greed and did not bring this claim in good faith other was no breach of contract on part of the plaintiff.

20. I therefore hold that the entire claim was baseless. The plaintiff failed to prove the case they brought to court.

21. This is further informed by the fact that the plaintiff alleges to have lost the transfer documents. He cannot blame the defendant for the same. During the hearing, the Defendant sought to have documentation done to allow transfer. The Applicant was vehemently opposed. Once court order compliance but the Defendant adamantly refused.

22. In the circumstances any loss suffered was self-inflicted. I dismiss the claim against the Defendant in limine. There is no obligation owed by the defendant to the plaintiff.

23. Even where a claim is dismissed the court is enjoined to deal with quantum. In the case of Joseph Muthuri v Nicholas Kinoti Kibera [2022] eKLR, Justice P J O Otieno stated as doth: -“Regarding assessment of damages due, the trial court did not assess any damages, for the reason that it had dismissed the suit. That was manifestly erroneous on the face of the binding decision in Frida Agwanda & Ezekiel Onduru Okech v Titus Kagichu Mbugua [2015] eKLR, where the court held that:-“Indeed even when the learned trial magistrate dismissed the claim, in such a case, he should have assessed damages, notwithstanding the dismissal. That now will be done by this court, for convenience, instead of returning the file to the lower court for assessment.”Similarly in Lei Masaku v Kalpama Builders Ltd [2014] eKLR, it was observed thus:“It has been held time and again by the Court of Appeal that the court of first instance assess damages even if it finds that liability has not been established. To have casually dismissed the suit and failed to address that issue of damages in this case is a serious indictment on the part of the trial court. Both the trial court and this court must assess damages as they are not courts of last resort. Their decisions are appealable and the appellate court needs to know the view by the Court of first instance on the issue of quantum. To the extent that the trial court failed to assess damages, its judgment was a serious flaw and cannot stand. It therefore behooves this court to assess quantum.”

24. The plaintiff sought damages in three ways: -a)The General damagesb)Loss of user of 61,974,000 for loss between 1/1/2017 and 31/1/2021. c)Damages 31/7/2017.

General damages 25. There can be no general damages for breach of contract. In the case of Peter Umbuku Muyaka v Henry Sitati Mmbasu [2018] eKLR, Justice J Njagi stated as doth: -“27. As a general rule general damages are not recoverable in cases of alleged breach of contract-see Court of Appeal decision in Kenya Tourism Development Corporation v Sundowner Lodge Ltd 2018 eKLR. The reason for such was explained by the court in the case of Consolata Anyango Ouma v South Nyanza Sugar Co. Ltd (2015) eKLR as follows:“The next question is whether the appellant was entitled to damages as a result of the breach. As a general principle, the purpose of damages for breach of contract is, subject to mitigation of loss, the claimant is to be put as far as possible in the same position he would have been if the breach complained of had not occurred. This is principle is encapsulated in the Latin phrase restitution in integrum (see Kenya Industrial Estates Ltd v Lee Enterprises Ltd NRB CA Civil Appeal No. 54 of 2004 [2009] eKLR, Kenya Breweries Ltd v Natex Distributors Ltd Milimani HCCC No. 704 of 2000 [2004] eKLR). The measure of damages is in accordance with the rule established in the case of Hadley v Baxendale (1854) 9. Exch. 341 that the measure of damages is such as may be fairly and reasonably be considered arising naturally from the breach itself or such as may be reasonably contemplated by the parties at the time the contract was made and a probable result of such breach (see Standard Chartered Bank Limited v Intercom Services Ltd & Others NRB CA Civil Appeal No. 37 of 2003 [2004] eKLR). Such damages are not damages at large or general damages but are in the nature of special damages and they must be pleaded and proved (see Coast Bus Service Ltd v Sisco Murunga Ndanyi & 2 others, NRB CA Civil Appeal No. 192 of 92 (UR) and Charles C. Sande v Kenya Co-operative Creameries Ltd, NRB CA Civil Appeal No. 154 of 1992 (UR))”.

26. The claim for General damages this fall on its head. There can be no nominal damages in respect thereof as there were no damages proved. Justice Njagi in the above matter continued as doth: -“A claimant for general damages for breach of contract who does not prove that he suffered loss is all the same entitled to damages, though nominal. In the Anson’s Law of Contract, 28th Edition at pg 589 and 590 the law is stated to be that:-“Every breach of a contract entitles the injured party to damages for the loss he or she has suffered. Damages for breach of contract are designed to compensate for the damage, loss or injury the claimant has suffered through that breach. A claimant who has not, in fact, suffered any loss by reason of that breach, is nevertheless entitled to a verdict but the damages recoverable will be purely nominal”.“30. The Halsbury’s Laws of England, Third Edition vol. II, defines nominal damages as follows:“388. Where a plaintiff whose rights have been infringed has not in fact sustained any actual damage therefrom , or fails to prove that he has; or although the plaintiff has sustained actual damage, the damage arises not from the defendant’s wrongful act, but from the conduct of the plaintiff himself; or the plaintiff is not concerned to raise the question of actual loss , but brings his action simply with the view of establishing his right, the damages which he is entitled to receive are called nominal­­­… Thus in actions for breach of contract nominal damages are recoverable although no actual damage can be proved”.

Special damages 27. These must flow directly form loss. They must not only be particulate but must be proved. In the case of David Bagine v Martin Bundi [1997] eKLR, the court of Appeal stated as follows: -“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a Sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi(1982-88) IKAR 681 at page 684:“....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. inBonham Carter v Hyde Park Hotel Limited [1948] 64 TLR 177 thus:“Plaintiffs must understand that if they bring actions for damages it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it"

28. The plaintiff has no basis for award of loss of user. The plaintiff if have his vehicles. Even where he alleges that they cannot be used, this was not p roved. It is the plaintiff who did not pay taxes. He cannot benefit form an illegality. There is no loss of user proved. In the case of Trans Mara Sugar Co Ltd & another v Ben Kangwaya Ayiemba & another [2020] eKLR, the court, Justice A C Mrima stated as doth: -“The harvesting and transportation of the mature cane was one of the central issues in the contract. The clause was knowingly and intentionally incorporated into the standard form agreement by the Appellant. If it is held that the illegal term rendered the rest of the contract unenforceable then the Appellant would be the ultimate beneficiary from that illegality. The principle running through the thread of decisions above is to the effect that a party should not be allowed to benefit from its own self-made illegality except if it pleads and proves any of the factors that may perfectly vitiate a contract.73. There is the issue of public interest as well. Courts must protect the public from deceit and help maintain standards of commercial morality. Where a dominant party for instance in a standard form agreement uses its obvious advantage to create a situation where it remains to fully benefit from the agreement in every manner and in total disregard to the weaker recipient party’s position whatsoever, public interest demands that the dominant party be estopped from enjoying such benefit.”

29. The distinction between dates before or after 2016, is irrelevant as there was no loss of user. The plaintiff thus must fully plead their case. This failed to do so.

Specific performance 30. The Defendant did their part they gave out books and transfer documents. They thus concluded their part. The Plaintiff relied on the having reportedly lost the logbooks, they cannot place any burden on the Defendant. The court believed the defendant’s evidence. It was not controverted that by 28/2/2015 the loans could have been concluded. The invoices and log books were given out together with transfer on 22/1/2015.

31. Having been given the transfer documents, the Defendants duty was discharged. The issue of transport of coffee, tea or even stones, is not a burden on the defendant. I have no reason to believe that the defendant being a reasonable person could have sought services for their vehicles when they knew it was untenable. I don’t know how Justice CB Madan could not called the plaintiff’s evidence. I was struggling to find something true. The good judge has this to say in the case of N v. N [1991] KLR 685:“Parties and Counsel ought to give the courts some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N v. N [1991] KLR 685 when he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”

32. The Defendant performed their part to the bargain. As such the court cannot order specific performance. There was no failure on the part of the Defendant.

33. In the circumstances I dismiss the entire claim by the plaintiff with costs of Kshs. 975,000/=. Payable within 30 days.

34. The counterclaim was shown that the plaintiff had obtained the necessary documents. However, the Defendant did not prove the conduct that injured the plaintiff. I find and hold that the plaintiff was not acting in good faith having been given all the documents. The plaintiff having lost transfer, is under duty to indemnify the Defendant for any lost for transfer of the vehicles on the plaintiff’s order. However, I decline to award advocates costs as none was proved to be due. The Plaintiff will pay Ksh 10,000/= for every transfer that the Defendant will execute again.

35. I allow costs of 60,000/= for the counterclaim.

Determination 36. In the circumstances I make the following orders: -a)The plaintiff’s suit is dismissed with costs of 975,000 to the defendant.b)The counterclaim is allowed to the extent that the costs to be incurred to transfer any motor vehicle shall be returned to the Defendant at Kshs. 10,000/= per vehicle. The same is contingent upon any request to transfer to the plaintiff.c)The plaintiff is at liberty to carry out forced transfer.d)The plaintiff shall bear costs of 60,0000/= for the counterclaim.e)The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Ahmed for the PlaintiffKazungu for the DefendantCourt Assistant - Brian