https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11313

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CIVIL APPEAL NO. 304 OF 2025** **CHARLES GITHINJI MUREITHI …………………….…………............APPELLANT** **VERSUS** **HELLEN KAVAYI……………………. ……………………….……1ST RESPONDENT** **JUSTIN CHERUIYOT………………………….……………..………2ND RESPONDENT** ***(Being an Appeal from the Judgment and Decree of Hon. Joseph Were (CM) as he then was, delivered on 31st October, 2025 in Ruiru MCCC E127 OF 2024)*** **JUDGMENT** **Introduction** 1. This appeal arises from the judgment and Decree of Hon. Joseph Were – CM (as he then was) delivered on 31st October, 2025 in Ruiru MCCC E127 OF 2024. 2. On 5th and 6th September, 2023, the 1st Respondent entered into a contract with the Appellant and 2nd Respondent for transportation of goods, the goods being 270 bags of maize to be transported from Bungoma to Ruiri, Soy Africa. The consideration was Kshs.49,900/- which Kshs 25,500/- was paid immediately and the balance was to be paid upon arrival of the goods. 3. The goods left Bungoma on or about 6th September, 2023 but never reached its destination. The 1st Respondent narrates that she was taken in cycles by the Appellant ad the 2nd Respondent who was the driver and employee of the Appellant. 4. The 2nd Respondent states that the 2nd Respondent would switch off his phone leaving her in the dark. On 7th September, the 2nd Respondent promised the goods would arrive on that day, but did not. On a follow up on 8th September, 2023, it yielded no fruits as the 2nd respondent had switched off his phone for two days. 5. That on 10th September, the driver called the 2nd Respondent called the 1st Respondent to ask for delivery details but never delivered. Frustrated, the 1st Respondent reached out to the Appellant who informed her that the truck had had an accident and was taken to Ruiru police station; the 1st Respondent went to the station where she found the truck but no trace of the maize. 6. The 1st Respondent therefore claimed breach of contract by the Appellant and 2nd Respondent and sought special damages as follows: 7. Kshs.1,500,000/- being purchase price of the 270 bags of maize. 8. Kshs.25,000/- being deposit of the consideration paid to the Appellant. 9. The Appellant filed a defence dated 9th May, 2025 denying that the was in breach of contract and that he therefore was not liable to pay damages sought by the 1st Respondent. 10. PW1, Friday Abdalla, the seller of the maize to the 1st Respondent adopted his witness statement and produced the annexures attached thereto which included the Mpesa statement and photos of a truck loaded with bags of maize. He testified that he received Kshs.2.6 Million by the 1st Respondent, being Kshs.1,500,000/- for purchase of the maize and the rest of the money for other types of cereals and had done business with the 1st Respondent for long. 11. PW1 testified that he procured the truck through one Moses who was a transport broker and he was connecyed to the driver, the 2nd Respondent until the goods were collected and that he was only informed after several days that the truck was fund n Ruiru without the maize. 12. PW2, Moses Inchikulo Wakia, the transport broker who adopted his witness statement. He testified that he indeed brokered the truck that belongs to the Appellant and the Appellant connected him to the driver, the 2nd Respondent for transport of the goods, the Appellant was aware of the quantity of the maize loaded and he paid the deposit of the consideration to the Appellant. He stated that his only job was getting the lorry and did not know the specifics of the contract. 13. PW3, Pauline Nabwire Kepoton,a business woman and a partner to Friday Abdalla-PW1 ,adopted her witness statement and testified that she witnessed the Truck being loaded but wasn’t aware of the details of the contract ,she however paid the relevant Bungoma County fees for the truck to proceed and produced proof of payment. 14. PW4, was the 1st Respondent herein, a business lady .She adopted her witness statement and produced the documents listed in her list of documents. 15. It was her case that she purchased maize from Friday Abdalla and Moses negotiated the transport costs, she however did not speak to the Appellant until after the incident and she had not known him before that and that she can’t confirm the occurrence of an accident but the truck was found at Ruiru Police station without the maize. 16. DW1, was the Appellant, he adopted his witness statement and stated that he never spoke to the 1st Respondent, just Moses, he confirmed the 2nd Respondent was the driver and responsible for all that occurred. He testified that Moses wasn’t the owner of the goods and usually does brokerage for someone ,that he knew he lorry was carrying maize but only learnt of the weight after the incident ,that he did not inform the 1st Respondent to take out insurance for the goods . 17. The appellant confirmed that he received the deposit of consideration for transport of goods from Bungoma to Ruiru and the contract was oral and the driver informed him of the quality of the goods. 18. By a judgment delivered on 31st Octber,2025, the trial court decided in favour of the 1st Respondent as follows: 19. Judgment is entered for the Plaintiff as against the 1st defendant for the sum of Kshs.1,525,500.00. 20. Interest on the said sum from date of filing suit until full payment. 21. Costs of the suit are awarded to the plaintiff. **The Appeal** 1. Dissatisfied with the trial court’s decision, the appellant filed a Memorandum of Appeal dated 18th November,2025 raising various grounds of appeal which were later condensed to 4 issues: 2. *Whether there was a valid and enforceable contract of carriage between the Appellant and the Respondent specifically whether there was privity of contract and consensus ad idem.* 3. *Whether the learned magistrate erred in finding the Appellant vicariously liable for the alleged acts or omissions of the 2nd Respondent.* 4. *Whether the Respondent proved her case on a balance of probabilities, particularly the claim for special damages of Kshs.1,525,500.00.* 5. *Whether the learned magistrate shifted the burden of proof onto the Appellant.* 6. Consequently, the appellant urges this Court to allow the appeal, set aside the award of the trial court and for costs of the appeal. **The Appellant’s Submissions** 1. In support of their appeal, the appellant filed their submissions dated 8th May, 2026. 2. On the 1st issue, the Appellant submitted that there existed no valid contract because the Appellant and 1st Respondent never communicated or agreed on any terms and that the contract would have been with Moses and not the 1st Respondent herein since Moses is the one who called him and sent him money. 3. Citing ***Agricultural Finance Corporation v Lengetia Limited & Jack Mwangi [1985]eKLR and China Yi Company Limited v Steve Kithi T/A Steve Kithi & Co Advocates***, the appellant insists the Respondent was an undisclosed principal and she therefore cannot sue since she never gave Moses actual authority to bind the Appellant. 4. The Appellant further contends that there was no meeting of minds between him and the 1st Respondent ad as such there was no valid contract, to buttress this point, he relied on ***Michira v Gesima Power Mills Ltd [2004] KECA 61(KLR), Vincent M. Kimwele v Diamond Shield International Limited [2018] eKLR.*** 5. As the whether the Appellant was vicariously liable for the conduct of the 2nd Respondent, the Appellant denies the same as the driver was not acting in the course of employment at the material time and the river was on a frolic of his own ,placing reliance on ***Nakuru Automobile House Ltd v Ziaudin [1987]KECA 52 (KLR) and Anaclet Kalia Musau v Attorney General & 2 Others [2020] KECA 723(eKLR).*** 6. As to whether special damages were strictly proved by the 1st Respondent, the Appellant holds the view that the same was not done ,there was no receipt of purchase, valuation report, bank statements or a local purchase order and the 1st Respondent therefore failed to meet the threshold. **The Respondent’s Submissions** 1. The respondent filed its submissions dated 18th May 2026 in opposition to the appeal, identifying three issues for determination: 1. *Whether there was a valid and enforceable contract of carriage between the Appellant and the Respondent, specifically whether there was privity of contract and consensus ad idem.* 2. *Whether the Learned Magistrate erred in finding the Appellant vicariously liable for the alleged acts or omissions of the 2ⁿᵈ Respondent.* 3. *Whether the Respondent proved her case on a balance of probabilities, particularly the claim for special damages of Kshs. 1,525,500.00.* 2. On the 1st issue, the 1st respondent notes that the Appellants submissions as well as the trial before court, the Appellant agrees all aspects of a contract exists and only picks issue with privity of contract between him and the 1st Respondent yet Moses acted as an agent for the 1st Respondent in procuring a vehicle directly from the Appellant on behalf of the Respondent. Submitting on agency ,the Respondent states that agency can be implied, express or ratified ,therefore the agency relationship between the Respondent and Moses and that even Moses during trial did not denounce the same. 3. On the doctrine of undisclosed principal, the Respondent urged thatthe case of China Wu Yi, relied on by the trial court, is explicit that the Principal need not be disclosed, as was the case herein, provided that the agent disclosed that there was an agent, that there was actual authority granted to Moses because he presented himself as a broker and never as the principal, a fact admitted to by the Appellant during trial. 4. As to whether there was meeting of minds between parties, the Respondents states that there was because insurance was never discussed before the contract was entered into and was only brought up during trial, something that was admitted to by both parties in trial ,in any case ,the Appellant wouldn’t have agreed to transport the goods for the Respondent if parties had not agreed, the Respondent asks court not to amend a partially performed contract . 5. On the issue of vicarious liability the Respondents submits that the Appellant himself admitted that the 2nd Respondent was his driver and that he gave the driver instructions to discharge his duties after the driver informed him of the nature of goods being transported. He therefore cannot run away from liability. 6. On special damages, the Respondent states that this was never in dispute, the seller and buyer both testified to this fact and bank messages and M-pesa statements to this fact produced without objection, the Appellant himself accepted Kshs.25,500/- which he has admitted to. Since special damages were sufficiently proven, the same should be allowed. The Respondent also sought for interest and costs of this appeal. 7. The Respondent cited a plethora of authoritiesi.e.***Fred Oduor Ataro v Wycliffe Wanjala Kisiangani 2021 KEHC 13305 (KLR), Lucy Nungari Ngigi & 4 others v National Bank of Kenya Limited & another [2015] KEHC 8191 (KLR), Total Kenya Limited v D Pasacon General Construction & Electri Cal Services [2022] KECA 593 (KLR), Mohamed v Muchomba (Civil Appeal 53 of 2019) [2022] KEHC 17115 (KLR) (8 December 2022) and Sifa Towers Management Limited v Bell Estate Agency Limited & 4 others [2020] KEHC 4570 (KLR).*** 8. Consequently, it was their case that the trial court rightly evaluated the evidence before it and arrived at the right finding. In this regard, they urged this Court to dismiss the appeal with costs. **ANALYSIS AND DETERMINATION** 1. This court has considered the record of appeal, the parties’ respective submissions as well as the cited decisions referred. 2. This being a first appeal, the High Court is under a duty to reconsider and re-evaluate the evidence and draw its own conclusions. The court must take great exception with respect to the fact that it has neither seen nor heard the witnesses. 3. The duty of a first appellate court was reiterated in the case of ***Gitobu Imanyara v Attorney General (2016) eKLR*,** as follows:- ‘*An appeal to this court by way of retrial and the principles upon which this court acts in such an appeal are well settled. The court must reconsider the evidence, evaluate itself and draw its own conclusion, though it should always bear in mind that it has never seen nor heard the witnesses and should make due allowance in this respect’.* 1. In light of the foregoing, this court is not bound by the trial court’s findings of fact if it appears that the trial court has clearly failed on some account of particular circumstances or probabilities materially to estimate the evidence. 2. In light of the pleadings and the submissions made, this court has come up with the following issues for determination. 3. *Whether the trial court erred in law and fact in finding that there was a valid contract between the Appellant and 1st Respondent?* 4. *Whether the trial court erred in finding that the Appellant was vicariously liable for the actions of the 2nd Respondent?* 5. *Whether the trial court erred in awarding the 1st Respondent special damages?* ***Whether the trial court erred in law and fact in finding that there was a valid contract between the Appellant and 1st Respondent?*** 1. The Appellant insists that there existed no contract between the parties as there was no communication between himself and the 2nd Respondent nor have they ever met. He maintains that he contracted with a person known as Moses. 2. The 1st Respondent on the other hand states that there was a contract and Moses only acted as the Respondent’s agent, the Appellant agreed to move goods from Bungoma to Ruiru for a consideration. 3. A perusal of the court record shows the testimony of PW2, Moses admitting on cross-examination that the Appellant was aware of the quantity of goods and that he did pay the Appellant part of the consideration for the transport. A look at page 150 of the record of appeal confirms this, the Appellant under oath confirmed the truck was carrying maize and had accepted a deposit of the consideration and admits that contracts can be oral, the Appellant also admits to speaking to the 1st Respondent after the accident. Page 58 of the record at paragraph 7 also corroborates this position. 4. Courts have held that oral contracts are binding if it contains all elements, offer, acceptance, consideration, legality and capacity. Oral contracts can be proven through oral testimony of parties and witnesses, performance, receipts or statements. 5. The Court of Appeal in **Attorney General v Kabuito Contractors Limited [2023] KECA 230 (KLR)** where it was stated that: *“30. The respondent’s claim is anchored on an alleged oral contract. Several requirements must be met in order to form an oral contract. The following provides a basic list of oral contract requirements:-* 1. *The terms of the contract must be valid and legally enforceable;* 2. *It must contain the necessary elements found in all contracts (e.g. offer, acceptance, consideration, and mutuality or a “meeting of the minds”); and,* 3. *the oral agreement must not violate laws or regulations/policies;* *(d) capacity of the parties.* *31. Undeniably, verbal contracts can be enforceable, but only if they are provable in court, and the contract meets the requirements of contract formation outlined above. For oral contracts, the courts will first be concerned with whether an oral contract exists and then with ascertaining the terms as these are, by their very nature, not written down. Ascertaining the terms of an oral contract has been held to be a question of fact. (See Carmichael v National Power Plc (1999) 1 WLR 2042 (HL)). This means that all evidence to assist that task is admissible, including evidence of the parties’ subjective intentions and subsequent conduct.“* 1. Similar position was upheld by the Court of Appeal in **Pride Inn Limited v Thatchmaanz Limited (Civil Appeal 167 of 2019) [2026] KECA 135 (KLR).** 2. The relationship between the Appellant and 1st Respondent can be deduced by the testimonies of all the witness in court, PW1, PW2 and PW4 gave consistent testimonies that remain unrebutted. These taken together with the partial performance of the contract by the Appellant through his driver and the part payment made to the Appellant, prove the existence of an oral agreement. 3. Section 119 of the Evidence Act which stipulates that: “*The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and private and public business, in relation to the facts of the particular case.”* 1. Going by the conduct of the parties herein, and having regard to the common course of natural events and human conduct in relation to the prevailing facts of this particular case, I am convinced that there was an orally binding contract between the appellant and the respondent and I so find. 2. The Appellant also raised the issue of insurance of goods which he states should have been by the Respondent herein, I will address the same hereunder. 3. Having found that there was a valid contract between the parties, it follows that the same was a proper contract of carriage. 4. It is not disputed that the Respondent purchased 270 bags of maize.it is also not in contest that the Appellant is the owner of motor vehicle **KCH 894T/ZF 4933** which was transporting the maize from Bungoma to Ruiru before it allegedly got into an accident and the goods were lost-this is not clear. 5. A contract of carriage was one of strict liability and the Appellant having admitted that it was a carrier contracted to carry the Respondent’s goods for gain, he was under strict liability to deliver the goods as agreed and is is liable to indemnify the owner of the goods in case of any loss or damage to the goods during carriage or at any time under the possession of the carrier, and therefore, the Appellant is responsible for the loss that the 1st Respondent suffered. 6. The duty imposed on a common carrier is described in ***Chitty on Contracts 28th Edition Para 36014*** as follows: *“By reason of his public calling the common carrier is subject, at common law, to 3 peculiar obligations: he must accept for transport goods tendered with the appropriate fee provided he has space in his vehicle, he must charge only a reasonable rate for their carriage, and he is strictly responsible for all loss or damage which occurs in the course of transit.”* 1. This was the case in **H. N Kariithi v Vivek Investments Ltd [2011] eKLR,** where curt held**:** *“Thus the common carrier is responsible for all loss or damage which occurs in the course of transit, including loss which occurs through the wrongful act of third parties. “* 1. The Appellant also failed to prove the cause of the accident, as he alleges in his statement which resulted in the loss of the Respondent’s goods since it was upon him to provide evidence showing the cause of the accident. This was the case in **William Cheruiyot Kandie v Republic [1997] eKLR,** where the Court held that whoever fails to produce relevant evidence in his position means that the evidence if produced would be prejudicial to his case. ***Whether the trial court erred in finding that the Appellant was vicariously liable for the actions of the 2nd Respondent?*** 1. **BLACK’S LAW DICTIONARY**, 9th edition at **page 998** defines vicarious liability in the following words: ***“Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.”*** 1. In **HCM ANYANZWA & 2 OTHERS**V**LUIGI DE CASPER & ANOTHER** [1981] KLR 10, this Court held that “vicarious liability depends not on ownership but on the delegation of tasks or duty.” 2. The Appellant admitted that the 2nd Respondent is his driver/employee and that the driver called him about the contract for delivery of goods which he okayed. 3. The reason behind the principle of vicarious liability is to place liability on the party who should in law bear it and to peg it on legal ownership of a motor vehicle in a case of this nature, to the total exclusion of employer/employee relationship, the Appellant cannot therefore blame his employee when he is the one on a supervisory role and gave him the go ahead to carry the goods, the Appellants even admits he had to be called to send fuel money to his driver so that the journey could commence, cementing the employer-employee relationship between them. 4. I re-affirm this Court’s statement in **John Nderi** **Wamugi vs. Ruhesh Okumu Otiangala & others (2015) eKLR**where it was expressed that the reason behind the principle of vicarious liability is to place liability on the party who should in law bear it and to peg it on legal ownership of a motor vehicle to the total exclusion of employer/employee relationship would amount to grave injustice. 5. I therefore find that due to the employer-employee relationship of the Appellant and 2nd Respondent, the Appellant was vicariously liable for the actions of the 2nd Respondent. ***Whether the trial court erred in awarding the 1st Respondent special damages?*** 1. In determining whether the respondent proved the special damages claimed, I refer to the pronouncement of the Court of Appeal in **Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Limited [2014] KECA 600 (KLR**) as follows: *“This judicial function of assessment of damages is one the courts have long jealously guarded for it takes judicial wisdom, experience and consideration to arrive at an appropriate measure of damages. This is partly the reason that in the case of special damages it is the law that they must be specifically pleaded and strictly proved, (see HAHN V SINGH [1985] KLR, 716) as this implicates the integrity of the judicial process and avoids ambush and surprise.”* 1. In the present case, the 1st Respondent provided proof of monies being sent to the purchaser to the tune of Ksh.1,500,000/- for purchase of 270 bags of maize. This fact was supported by the evidence of PW1 who corroborated the 2nd Respondents case. The 2nd Respondent has also proved that Ksh.25,500/- deposit of the consideration was sent to the Appellant, this fact is not contested by the Appellant who confirms receipt and was reproduced in the testimony of PW2, Moses. I therefore find that the Respondent not only pleaded special damages but also strictly proved them. 2. Consequently, upon re-evaluating the evidence afresh, I find no merit in this appeal. I uphold the trial court’s judgment and dismiss the appeal with costs to the 2nd Respondent. ***Dated, signed and delivered at Nairobi this 23rd day of July 2026.*** **DAVID MBURU** **JUDGE** **In the Presence of** *Mr. Ngure for the Appellant* *M/s Jerop for Respondent* *Kalondu – Court Assistant*