[2017] KEHC 3170 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL APPEAL NO. 166 OF 2013

JASON SAUTI MISIANI...................................APPELLANT

VERSUS

PETER ONGAGA TORA...............................RESPONDENT

(An appeal from the judgment and decree of Hon. LUCY KAITTANY (Senior Resident Magistrate) dated and delivered on the 25th day of November 2013 in the Original Kisii CMCC No. 122 of 2012)

JUDGEMENT

1. In his amended plaint dated 24th April 2012, the appellant herein, who was the plaintiff before the trial court, sued the respondent for breach of contract and prayed for the following orders:

a) Principal amount of Kshs. 23,869. 95

b) Costs of the suit.

c) Interest.

d) Any other relief that this Honourable Court may deem fit and just grant.

2. The appellant’s case as shown in paragraphs 3 and 4 of the plaint was that on 3rd January 2010, he entered into a written agreement with the respondent in which the respondent agreed to surrender his tea buying number 0530110 at Kiamokama and that the claim of Kshs. 23,869. 95 was money due to the appellant for the months of February, March and May including bonuses.

3. The respondent defended the suit through his defence dated 26th April 2012 wherein he denied having entered into any agreement with the appellant. He further denied owing the appellant the amount of Kshs. 23,869. 95 or any money or at all.

4. The case proceeded for hearing in which the plaintiff/appellant testified as PW1 and stated that he entered into an agreement with the respondent on 3rd January 2010 wherein it was agreed that he would use the respondent number at tea buying centre no. KK 53110. The agreement was produced as an exhibit. The appellant’s case was that he used the number to deliver tea to the factory from February 2010 to November 2010 when the defendant requested him for the pay-slip ostensibly to use it for vying for the Tea Factory Elections.

5. The appellant claimed that the respondent used the payslip to open a bank account where the appellant’s tea proceeds and bonuses amounting to Kshs. 23,822. 84 were automatically diverted in February and May 2011.

6. PW2 Jason Sauti Misiati and PW3 James Mageto Seremani witnessed the said agreement.

7. In his defence, the defendant testified that Kenya Tea Development Authority did not authorize farmers to lease out their numbers and therefore he did not owe the appellant the money claimed. He added that he did not sign the agreement that was produced in court and claimed that the claim was malicious.

8. Upon considering the evidence tendered by the parties and their written submissions, the trial court found that it was satisfied with the evidence tendered by the appellant in respect to the agreement but that the claim of Kshs. 23,869. 95 was not proved since the tea delivered in February, March and May under number KK0530110 amounted to Kshs. 729/=.

9. The court also found that it was not proved that the defendant owns a bank account where tea proceeds were allegedly deposited as claimed by the plaintiff. The trial court found that the appellant did not discharge the burden of proof placed on him and dismissed the case with costs.

10. When the appeal came up for hearing, parties opted to canvass it by way of written submissions which I have considered.

11. The main issue for determination is whether the appellant proved his claim against the respondent to the required standards.

12. The appellant’s claim against the respondent was for the specific sum of Kshs. 23,869. 95. It is a well-hackneyed principle in civil claims/damages that special claims must not only be pleaded but must also be specifically proved.

13. In Bonharm Carter vs Hyde Park Ltd [1948] 64TLR 177 it was stated:

“Plaintiffs must understand that, if they bring actions for damages it is not enough to write particulars and so to speak, throw them at the court, saying “this is what I have lost, I ask you to give these damages” they have to be proved.”

14. In the instant case, the even though the plaintiff pleaded the sum of Kshs. 23,869. 95, as the amount due to him for tea proceeds, the said amount was not proved.

15. The agreement dated 3rd January 2010 that is the subject/basis of the claim was worded as follows:

“I Peter Ongagu Tora have agreed Jason Sauti Misiani to use my tea number KK0530110 Kiamokama my ID Number is [...].”

16. I note that the agreement is silent on the purpose of the tea number or what it was to be used for and for how long. Furthermore, the agreement does not show if there was any consideration paid by the appellant to the respondent so as to qualify it to be an agreement in the strict sense of the word. There was no document presented to support the appellant’s claim that a specific sum of Kshs. 23,869. 95/= which was due to the appellant was diverted to the respondent’s account. Furthermore, the appellant did not prove his claim that the respondent used certain slips to open an account.

17. The question which begs answers is whether the agreement of 3rd January 2010 was capable of being enforced.

18. It is trite that there are three essential elements of a valid contract that is an offer, acceptance and consideration. See Halsburys Laws of England, Vol. 22, 5th Edition, paragraph 308.

19. In the instant case, I find that what the appellant presented as an agreement lacks the essential elements of a contract that can be enforced by this court, because what was on offer is not clear and neither was there a consideration.

20. In view of my above observations and findings I concur with the trial court’s findings that the appellant’s claim was not proved to the required standards and consequently I dismiss the appeal with costs to the respondent.

Dated, signed and delivered in open court this 3rd day of October 2017

HON. W. A. OKWANY

JUDGE

In the presence of:

Mr. Ombachi for the Appellant

Mr. Okenye for the Respondent

Omwoyo court clerk