[2023] KEHC 25649 (KLR)

Gikundi v Nyaga (Civil Appeal E817 of 2021) [2023] KEHC 25649 (KLR) (Civ) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25649 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E817 of 2021

DAS Majanja, J

November 17, 2023

Between

Francis Ngure Gikundi

Appellant

and

Kelvin Nyamu Nyaga

Respondent

(Being an appeal from the Judgment and Decree of Hon.E. M. Kagoni, PM dated 25th November 2021 at the Nairobi, Small Claims Court at Milimani in CMCC No.9788 of 2018)

Judgment

1. On 25. 11. 2021, the Subordinate Court dismissed the Appellant’s suit seeking, inter alia, the following reliefs as set out in the Amended Plaint dated 26th July 2019, Motor vehicle make Toyota Fielder Chassis Number ZRE ******959 or its alternative in value or in the alternative to (a) above Kshs. 586,040. 00 and consequential relief.

2. According to the Amended Plaint, the Appellant stated that he entered into an agreement with the Respondent to import a Toyota Fielder from Japan. It was agreed that he would pay USD 4,800. 00 directly to the seller, Jans Trading Company Limited located in Japan (“Jans Trading”), which he did on 15. 09. 2015. That it was further agreed that he would pay the Respondent port clearance charges of Kshs.59,000. 00 which he did on 16. 11. 2015 and that he also paid Kshs. 450,000. 00 to Kenya Revenue Authority as taxes on 02. 12. 2015.

3. The Appellant alleged that in breach of the agreement, the Respondent forged a letter bearing the Appellant’s signature purportedly authorising the Jans Trading to resell the motor vehicle he had ordered and apply the USD 4,800. 00 as the purchase price for another vehicle, a Toyota Mark X, for one JW. As a result of this conduct the Respondent was charged with the offence of obtaining money by false pretences, forgery, making a false document and stealing in Makadara Criminal Case No. 632 of 2016, R v Kelvin Nyamu Nyaga. As a result of the Respondent’s conduct, the Appellant claimed that he lost USD 4,800. 00 equivalent to Kshs. 527,040. 00 and Kshs. 59,000. 00 all amounting to Kshs. 586,040.

4. In his Statement of Defence dated 1ST October 2019, the Respondent denied that there was an agreement between him and the Appellant as claimed. He averred that there was no privity of contract between him and Appellant and that the Appellant entered into an agreement with Jans Trading for importation of the Toyota Fielder for which he paid USD 4,800. 00 as pleaded. He denied that he forged the Appellant signature as alleged and avers that the Toyota Mark X imported by JW was financed Ngao Credit Limited and was later repossessed and sold to a third party.

5. The Respondent denied any wrongful or criminal conduct and avers that the criminal case against him is still pending and that he is innocent until proven guilty. He denied that the Appellant was entitled to any of the reliefs as he had not suffered any loss or damage as alleged or at all.

6. At the hearing, the Appellant (PW 1) testified on his own behalf and called Edwin Mwangi Ngure (PW 2) as his witness. The Respondent testified on his own behalf. After considering all the material on record, the trial magistrate rendered the judgment. He framed one sole issue for determination; whether there was a valid contract between the Plaintiff and the Defendant. The court concluded that the Appellant dealt directly with Jans Trading and that the Defendant was an agent hence he was not liable. The court further held that the Appellant ought to have joined Jans Trading. The court also held that the Defendant was not liable for fraud as the Appellant had failed to plead particulars of fraud. Consequently, the court dismissed the claim with costs.

7. Turning to the substance of the appeal, the Appellant had set out his grounds of appeal in the Memorandum of Appeal dated 10. 12. 2021. The parties filed written submissions in support of their respective positions. Having considered the submissions and record, the issue for consideration is whether the Respondent was liable for the Appellant’s loss.

8. The answer to the issue as framed is a question of fact. In resolving the issue, the court is guided by duty of the first appellate court which is to review the facts and arrive at an independent conclusion bearing in mind that this court did not have the benefit of hearing or seeing the witnesses in order to take into account their demeanor ( Selle and Another v Associated Motor Boat Company Ltd and Others [1968] EA 163 and Kenya Ports Authority v Kuston (Kenya) Limited [2009] EA 212).

9. While the Appellant contends that it entered into an agreement with the Respondent for the import of a Toyota Fielder, Jans Trading issued a Proforma invoice to the Appellant which the Appellant settled by making payment. The fact of payment consummated the contract for the sale of goods. The Appellant admits that he paid the port clearance charges and the taxes to Kenya Revenue Authority.

10. Based on the fact that the contract for the sale of goods was consummated with Jans Trading, I hold that the obligation to deliver the motor vehicle fell on the seller. The trial magistrate was therefore right to conclude that the Appellant ought to have sued Jans Trading.

11. The gravamen of the Appellant’s case is the Respondent forged a letter authorising Jans Trading to allocate the USD 4,800 the Appellant had paid for the purchase of a Mark X for JW. The Respondent denies the allegation of forgery. In Kuria Kiarie and 2 Others v Sammy Magera [2018] eKLR the Court of Appeal stated made the following observation on forgery and fraud:It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: "... We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases.. "..In cases where fraud is alleged, it is not enough to simply infer fraud from the facts."

12. The Appellant failed to surmount the first allegation that the letter complained of was forged. Fraud or forgery cannot simply be inferred. The fact that the Respondent has been charged with an offence does not support the Appellant’s case as the Respondent is entitled to the presumption of innocence.

13. Ultimately the facts are clear that the Appellant purchased the motor vehicle from Jan Trading. Jans Trading failed to deliver it. Its relief for the motor vehicle lies against Jan Trading which received his money and undertook to supply him with the motor vehicle.

14. The appeal is dismissed. The Appellant shall pay costs assessed at Kshs. 40,000. 00.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER 2023. D. S. MAJANJAJUDGEMr Gacheru instructed Gacheru Ngang’a and Company Advocates for the Appellant.Mr Njoroge instructed by James Njoroge and Company Advocates for the Respondent.