[2017] KEHC 1350 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 322 OF 2013

BRAEBURN LIMITED............................................................APPELLANT

-V E R S U S –

ROBERT NJOYA KINUTHIA...................................... 1ST RESPONDENT

JOYCE WAIRIMU NJOYA ......................................... 2ND RESPONDENT

(Being an appeal from the judgement of the Chief Magistrate’s Court Nairobi, Milimani commercial Courts delivered by Hon. C. Obulutsa, Ag CM on 9th May 2013 in CMCC NO. 3438 of 2010)

JUDGEMENT

1) Braeburn Ltd, the appellant herein, filed an action against Robert Njoya Kinuthia and Joyce Wairimu Njoya, the 1st and 2nd respondents respectively before the Chief Magistrate’s Court, Milimani Commercial Courts vide the plaint dated 24th May 2010. In the aforesaid plaint, the appellant sought for judgment against the respondents in the sum of ksh.110, 892 being a term’s fees in lieu of notice in respect of the respondent’s child who left the appellant’s school without giving a notice of 3 months. The suit was defended by the respondents. Hon. C. Obulutsa, learned Ag Chief Magistrate heard the case and eventually dismissed the same. Being aggrieved, the appellant filed this appeal.

2) On appeal, the appellant put forward the following grounds in its memorandum:

1. THAT the learned magistrate erred in law and in fact in dismissing the plaintiff’s suit.

2. THAT the learned magistrate erred and misdirected himself in law and fact by applying the wrong and or did not apply the correct law, tests and principles relating to the contractual relationship between the appellant/ plaintiff and the respondent/defendant.

3. THAT the learned magistrate erred in law and in fact in failing to apply the correct law, tests and principles particularly relating to standard form contracts.

4. THAT the learned magistrate erred in law and in fact in impliedly finding that proof of loss/damages suffered was a necessary issue for trial and or that the appellant/ plaintiff did not suffer any loss/ damages.

5. THAT the learned magistrate erred in law and in fact in failing to appreciate that the plaintiff was not under any obligation to waive the requirement to pay fees in lieu of notice and that the said claim was not premised on proof of loss.

6. THAT the learned magistrate erred in law and in fact by finding that the application form needed actual signatures of the head and class teachers and that the said form was not signed in law and or did not constitute a valid and lawful contract.

7. THAT the learned magistrate erred in law and in fact by failing to find that the application form was a valid contract, consummated by and binding on the parties herein/therein.

8. THAT the learned magistrate failed to appreciate that the application form was sufficiently executed/signed by having the plaintiff’s business name printed on its face.

9. THAT the learned magistrate erred in law and in fact in failing to find that the evidence adduced by the defendants (even if it was true) was otherwise irrelevant to the plaintiff’s claim and or in the circumstances.

10. THAT the learned magistrate erred in law and in fact by directing herself to the wrong issues and or by not addressing correct and relevant issues arising from the parties’ pleadings/claims.

11. THAT the learned magistrate failed to find that the whole defence was/is a sham, unmeritorious, vexatious, embarrassing, and frivolous and an abuse of the court process.

12. THAT the learned magistrate erred in law and in fact by taking into account extraneous and irrelevant matters in his findings and judgment.

13. THAT the learned magistrate erred in law and in fact by failing to find that the plaintiff had proven her case on a balance of probabilities.

3) When the appeal came up for hearing, learned counsels appearing in the matter recorded a consent order to have the appeal disposed of by written submissions.

4) At the time of writing this judgment, the only party who had filed its submissions was the appellant. I have re-evaluated the case that was before the trial court. I have also considered the submissions filed before this court. Though the appellant put forward a total of 13 grounds of appeal, those grounds boil down to one main ground that is to say whether or not the appellant had established its case on a balance of probabilities. It is the appellant’s submission that the appellant tendered evidence proving that the respondent executed an agreement with the appellant requiring the respondents to give the appellant three months’ notice of their intention to withdraw their child from the appellant’s school or in the alternative to pay one term’s fees in lieu of notice. The appellant pointed out that the 1st appellant had admitted that he signed the contract forms under duress. It was argued that the respondents had failed to tender evidence proving the allegation of duress and the assertion did not in any case form the basis of the trial court’s final judgment. The appellant has further submitted that the respondents’ son could not have been admitted to its school if the respondents did not sign the application form because without it, there would be relation created between the parties herein. The appellant had summoned Jane Muthoni (PW1) to testify in support of its case before the trial court in her evidence in cross-examination, PW1 stated that Braeside, the appellant’s school did not sign the application form produced by the appellant as evidence. PW1 admitted that the 2nd respondent did not sign the form too. Mary Wanjiku Kariuki (PW2) the appellant’s lawyer also confirmed that the school did not sign the application form. It is not in dispute that the foundation of the appellant’s case was the application form which form contained the terms of contract. It is also not in dispute that the aforesaid form was not signed by the appellant and the 2nd respondent. In cross examination, the 2nd respondent stated that the application form produced in court does not indicate who signed. I have critically re-examined the evidence of PW1 and PW2 and it is apparent that none of those witnesses stated that the application form produced by PW1 as an exhibit was signed by any of the respondents. The learned Ag. Chief Magistrate when faced with the aforesaid evidence came to the conclusion that the respondents were not bound by the contents of the application form because the same was not signed by the headteacher and the class teacher. With respect, I am satisfied with the manner the learned acting Chief Magistrate determined the matter. The appellant cannot expect an agreement in form of an application form which it did not execute to create a contractual relationship. There was no credible evidence whether the 1st respondent ever executed the form.

5) The appellant miserably filed to prove its case to the required standards in civil cases.

6) In the end, I find no merit in this appeal. It is dismissed in its entirety. In the circumstances of this case, I am of the view that a fair order on costs is to order which I hereby do that each party bears its own costs.

Dated, Signed and Delivered in open court this 10th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

..................................................... for the Respondent