https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6872

Kanyita & another v Okeyo (Civil Appeal 2 of 2024) [2026] KEHC 6872 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 6872 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal 2 of 2024 DK Kemei, J May 21, 2026 Between Matthew Mwaura Kanyita 1st Appellant Zacheus Ochieng Otieno 2nd Appellant and Steven Odhiambo Okeyo Respondent (Being an appeal from the Judgment of Hon. J. P Nandi (SPM) in Bondo SPMCC Civil Case No. E109 of 2022 dated 9/11/2023) Judgment 1.The appeal herein arises from the Judgement of Hon. J.P Nandi (SPM) in Bondo SPMCC No. E190 of 2022 delivered on 9/11/2023 wherein he entered judgment in favour of the Respondent herein as prayed for in the plaint dated 25/10/2022. 2 .The Appellants were aggrieved by the aforesaid judgment and filed a Memorandum of Appeal dated 2/11/2023 wherein they raised the following grounds of appeal namely:i)The Learned Magistrate erred in law and fact by finding that the Respondent herein had proven his case on a balance of Probabilities despite the solid case presented from the 1st Appellant herein.ii)The Learned Magistrate erred in law and fact in finding that an oral contract existed between the 1" Appellant and the Respondent, despite the Respondent having no authority to act on his behalf.iii)The Learned Magistrate erred in law and in fart by finding that the Respondent was entitled to a sales commission and further transport costs despite there being no valid contract and no evidence adduced to substantiate the oral contract as pleaded.iv)The Learned Magistrate contradicted herself in stating that a sales commission and cost be paid to the Plaintiff and further that an account be taken between the plaintiff and the defendant to establish the sums due to the Respondent.v)The Learned Magistrate erred in law and in fact by ordering a permanent injunction against the Appellants, their agents, servants or any person claiming removal of Container number MCSU/04538/5 despite the 1st Appellant having not received any money from the Respondent or from the said Josephine Mengavi)In all the circumstances of the case, the findings of the Learned Magistrate are not supported by the evidence adduced in court. 3.The Appellants therefore prayed that the appeal be allowed and the trial court’s judgment be set aside and the costs of the appeal awarded to them. 4.This being the first appellate court, its duty is to re-evaluate the evidence and come to its own independent conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account the fact that it neither saw nor heard the witnesses as they testified. See the case of Selle & Another Vs Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Peters Vs Sunday Post Ltd [1958] EA 424. 5.The evidence tendered before the trial court was as follows:Stephen Odhiambo (PW1) averred that he stayed in Mombasa and that he knew the 1st defendant as he used to engage him in several transport services and selling him a container. He stated that the 2nd defendant was a client as they were selling him the containers. He stated that he had recorded his witness statement and filed it in court on 25th October 2022 as part of his evidence and which was duly admitted as his evidence. That he produced documents which were listed as Exhibit 1 and Exhibit 2. He stated that Josephine had paid him Kshs. 100,000 and that the remaining amount was to be paid in installments and then sent to the 1st Defendant. He asked the court to allow the claim as prayed. 6.In cross-examination, he stated inter alia; that he had a business relationship with the 1st Defendant; that there was no written contract between them; that he had no documents proving that the containers belonged to the 1st Defendant; that the containers had numbers, but he lacked weighbridge documents showing that he was transporting them; that the containers were light; that they had agreed verbally that he would get a commission of Kshs. 30,000 per container after selling them; that his role was to sell the containers for the 1st Defendant; that he only managed to sell one container to Josephine, who did not pay the full amount; that he had not sold the other containers; that the matter was reported at Bondo Police Station; that the sale agreement did not state that he was selling on behalf of the 1st Defendant; that the total amount was Kshs. 530,000 including transport; that he acknowledged that lying to court is an offence; that he was paid Kshs. 100,000 and was waiting for the full amount before sending it to the 1st Defendant; that he still had the money; that this was not his first-time selling containers for the 1st Defendant, but he had no proof of past transactions; that he was supposed to receive his commission from the 2nd Defendant; that he was later arrested and held at Kisumu Maximum G.K. Prison; that while in custody, the Defendant sold the containers; that he had been charged with obtaining Kshs. 200,000 from the 2nd Defendant by false pretense; that the 1st Defendant testified as a witness for the prosecution in that case; that he did not know where the containers were sold; that he had no delivery notes and only communicated by phone; that he gave the 1st Defendant the 2nd Defendant’s contact; that he was the one who identified the 2nd Defendant as the buyer; that he told Josephine that the container was not his. 7.Also, on cross-examination by Mr. Ojwang Advocate, he confirmed that the container sold to Josephine was not registered in his name and that he sold it for the 1st Defendant but had no sale agreement. 8.He also had no written sale agreement with the 2nd Defendant and that they only talked on phone. That the 2nd Defendant sold the containers to Josephine and that he was just called. He had no document showing the 2nd Defendant was to pay Kshs. 100,000 for each container. That they had no agreement with the 1st Defendant to sell his containers. The containers belonged to the 1st Defendant. He does transport work but was told to sell the containers. He received Kshs. 100,000 from Josephine but did not forward it to the 1st Defendant. That he was not present when the 1st Defendant and police received the containers. That he had no sale agreement for the other two containers in court. The 2nd Defendant never told him he had interest in buying the container or any other. That he gave the containers to the 2nd Defendant who paid him Kshs. 200,000 through a certain lady, but he has nothing to show that he received money from the 2nd Defendant. That the 2nd Defendant has sued him for the same money. That it is the 1st Defendant he meant in paragraph 18 of his statement. 9.On re-examination, he stated inter alia; that he had worked with the 1st Defendant for 3 years but they never had any written agreement since it was an oral agreement; that the 2nd Defendant was a buyer and that they agreed on phone; that the 1st Defendant knew he was transporting the containers to Kisumu; that he agreed with the 2nd Defendant that the 2nd Defendant would pay him transport costs while the 1st Defendant was to pay him commission; that the 2nd Defendant introduced Josephine to him; that he was paid a deposit of Kshs. 100,000 for the container; that he delivered 4 containers and was not paid any money; that he used his own money in transporting the containers. 10.Josephine Otieno Menga (PW2) testified that she was in court because of a container she purchased from Stephen Okeyo. That she knows the defendants. That the 2nd Defendant was introduced to her by Cicilia who called and told her that he sells containers. That Mathew came to her home in Bondo with police claiming that the container had been stolen. That she recorded her witness statement filed in court on 28.10.2022 which she adopted as her evidence in chief. That she was an innocent purchaser and prayed that the court allows her to maintain the terms of the agreement. 11.In Cross-examined by Mr. Lawi Advocate, she told the court that she bought the container from the plaintiff and that the container was brought to her by Zacheus. That she was told the documents were coming from Mombasa. That she knew Cecilia whom she trusted. That Mathews claimed that the container was his and which the plaintiff confirmed the same. That Mathews was not present when they signed the agreement. That she bought the container from the agent of the owner. 12.And in cross-examination by Mr. Ojwang Advocate, she told the court that she met Zacheus on the day of the agreement as he was the one doing the price bargaining. That she had never met him before the date of the agreement. That she did not do any search for the container as there was no opportunity to do the search. That the 2nd Defendant was an agent of the owner but that he is not a party to the agreement. That the 2nd Defendant did not sign the agreement as a witness. That the 2nd Defendant did not call her. That she did not make any payment to the 2nd Defendant. That she paid the money to the plaintiff as the 2nd Defendant told her to send the money to the plaintiff. That when police came for the container, she did not see the 2nd Defendant. That she has not received any demand letter from the 2nd Defendant. That if they agree, she will pay Mathew, or the owner if the court finds who the owner is. That she does not know the owner of the container yet. That the parties herein are working as a team. That she has not written any demand letter to the 2nd Defendant.That marked the close of the Respondent’s case. 13.Mathews Mwaura Kanyita (DW1) testified that he is based in Nairobi and Mombasa. He adopted his witness statement dated 18.1.2023 as his evidence in chief. That he did not have any agreement with the plaintiff and his witness. That is all he could state in chief. 14.Cross-examined by Ms. Achieng Advocate, he stated inter alia: that he knows the plaintiff as they have worked together for a long time; that he was hiring him to transport containers on his behalf; that the containers are his; that for the period they worked together, the plaintiff used to transport; that in this case, he was to receive the price of the container and the client was to cater for the transport; that he is not the one who identified the client; that if the plaintiff identifies the client, he was to inform him and he would make arrangements for payment; that he was not paying the plaintiff any commission; that he gave the plaintiff the identification documents; that one container was to be taken to Luanda in Vihiga County and the other to Nairobi; that they normally experience delays in the business; that if a customer cancels the order mid-way, he is the one who decides for the plaintiff where the container will be kept; that the Plaintiff failed to deliver the container and that he switched off his phone; that the Plaintiff transported the container to a wrong client; that the Plaintiff was to report to police or sue him for recovery of his transport expenses; that the Plaintiff and the 2nd Defendant have a criminal case in Kisumu law courts; that he did not authorize the Plaintiff to deliver any container to the 3nd Defendant.On cross-examination by Mr Ajwang, he stated that he did not have any contract with the 2nd Defendant. 15.On re-examination, he state that the client at Luanda was the one to cater for transportation costs; that the container was to go to Vihiga and not to Bondo; that he had no agreement for a commission with the Plaintiff. 16.Zacheus Ochieng Otieno (DW2) testified that he has no interest in the suit container. That he had not met the plaintiff and had not ordered for any container. That he met Josephine Menga on 28.5.2022. That he did not introduce her to the plaintiff. That the plaintiff was to give him one document for purchase of containers he had sold to him. That the plaintiff told him he was rushing to Bondo and he accompanied him to Bondo town. That he has never seen the said container in question. 17.In cross-examination by Ms. Oduor Advocate, he stated inter alia: that he now knows the plaintiff; that the 1st Defendant came for the containers which the plaintiff had sold to him through a 3rd party; that the plaintiff was replacing his container; that he knew the 1st Defendant when he came at Kisumu Central Police Station claiming the containers belong to him; that the plaintiff delivered to him three containers; that two were being replaced and that he was buying the third container; that he was not to cater for the transport costs; that he was to buy the third container at Kshs. 400,000; that he received the said container and made partial payment of Kshs. 250,000; that he has not produced any document showing payment for the container; that he was not in any communication with Mathew in regard to this container; that he did not receive documents in regards to the container he received; that he was to be given documents first and make final payment; that he did not institute malicious criminal charges against the plaintiff but he has filed a criminal case against him; that Mwaura came and claimed the container was his; that he met Menga on 28.5.2022 when he was following the plaintiff to give him documents; that he paid Kshs. 30,000 for break down when he was to be refunded the same; that he has no evidence showing that he paid Kshs. 30,000. 18.The appeal was canvassed by way of written submissions. Parties duly complied. 19.Vide submissions dated 17/2/2026, learned counsel for the Appellant raised several issues as captured in the grounds of appeal inter alia; the burden and standard of proof; the alleged existence of an oral contract; the award of sales commission and transport costs; the contradictory findings relating to accounts; the grant of a permanent injunction; and findings unsupported by the evidence on record. 20.It is the 1st Appellant's respectful submission that the learned Magistrate misdirected himself in law and in fact, thereby arriving at a decision that is unsafe and unsustainable. 21.On whether the Respondent proved his case on a balance of probabilities, sections 107, 108 and 109 of the Evidence Act (Cap 80 Laws of Kenya) dictates that he who alleges must prove. This principle required the Respondent to establish the truth of his claims and in the event the Respondent failed to provide evidence, the allegation ought to have been dismissed. In Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held that the burden of proof lies on the plaintiff to prove their case on a balance of probabilities and does not shift even where the defendant fails to call evidence. This burden is not lessened or discharged merely because the case is undefended or heard by way of formal proof. The Respondent alleged the existence of an oral contract between him and the 1st Appellant promising to pay the Respondent transport costs in addition to the sale commission arising. The Respondent further alleged a breach of the non- existent contract. However, no documentary evidence was produced by the Respondent to establish regarding the areas such as the agreed commission rate, the agreed mode of computation, the agreed transport terms, and any written authority or engagement. 22.The Learned Magistrate effectively shifted the burden of proof to the Appellants to disprove claims that had not been strictly proved. Consequently, that was a fundamental misdirection in law. 23.It was submitted that trial court erred when it found that an oral contract existed between the 1st Appellant and the Respondent. That for a valid contract to exist, there must be proof of offer, acceptance, consideration, intention to create legal relations and certainty of terms as was decided in the case of Stancom Sacco Ltd vs. Alliance One Tobacco Limited (2018) eKLR. 24.Reliance was placed in the case of National Bank of Kenya Ltd v Pipe plastic Samkolit (K) Ltd & Another [2001] eKLR, where the Court of Appeal held that a court cannot rewrite a contract for parties and that parties are bound by the terms of their contract unless fraud, coercion or undue influence is proven. It was submitted that in the present case there were no ascertainable terms regarding such things as, commission percentage, duration of engagement, payment timelines and transport reimbursement arrangements. It was submitted therefore that in that regard, a contract whose terms are uncertain is unenforceable. That it is a settled principle of law that ambiguities in a contract are construed against the party who drafted it as per the contra proferentem rule. The key purpose of this rule is that it places the risk of unclear language on the party responsible for creating it, encouraging clarity and discouraging the intentional use of vague language to gain an advantage. 25.It was further contended that the Respondent failed to demonstrate that he had authority to bind or act on behalf of the alleged principal. That the courts have always emphasized that agency must be proved and cannot be presumed. That no actual, implied or ostensible authority was established and hence, the finding of a binding oral contract was therefore unsupported by evidence. 26.As regards the issue whether the claim for sales commission and transport costs were strictly proved, it was submitted that claims for commission and transport costs constitute special damages and must be specifically pleaded and strictly proved. In Hahn v Singh [1985] KLR 716, the Court of Appeal held that special damages must not only be pleaded but must also be strictly proved with evidence such receipts or documentations. The case emphasized that claims for items like depreciation or transport costs are disallowed if not supported by direct evidence of the actual loss incurred. Similarly, in Coast Bus Service Ltd v Murunga & Others [1992] eKLR, the Court reiterated that special damages must be strictly proved and failure to itemize and substantiate these claims results in the claim not succeeding. It was submitted that the Respondent did not produce any documentary proof of agreed commission rate, commission computation schedules supported by primary records and receipts or vouchers for transport expenses. It was contended that the award was therefore speculative and unsupported by strict proof. 27.It was submitted that the learned Magistrate erroneously found that commission and costs were payable, yet he went ahead to order those accounts to be taken to establish sums due. It was contended that this was contradictory. Learned counsel posited that if entitlement had been proved, then the exact sum should have been ascertainable from the evidence and not elsewhere after accounts had been taken post judgement. That an order for accounts implies uncertainty and lack of proof and hence, the trial court therefore erred in making a substantive award in the absence of established sums. 28.The 1st Appellant faulted the trial court for granting a permanent injunction restraining removal of Container No. MCSU/04538/5 now detained at Bondo police station. It was submitted that the principles governing permanent injunctions require proof of an established legal right and its violation. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court set out principles for grant of injunctive relief. The precedence reasoned that for an order of injunction to be granted, the Applicant must demonstrate; a prima facie case with a probability of success, irreparable injury to be suffered if the injunction is not granted and balance of convenience in the event the court is in doubt. It was submitted that though Giella case deals primarily with interlocutory injunctions, the foundational requirement remains proof of a legal right. It was submitted that the Respondent failed to prove ownership of the container, a proprietary or equitable interest and receipt of funds by the 1st Appellant. That no evidence was tendered to show that the 1st Appellant received any monies from the Respondent or from the said Josephine Menga and that in absence of proof of a legal or equitable interest, the injunction was improperly granted. 29.It was also submitted that the findings of the trial court went against the weight of the evidence which raised issues such as misapplication of burden of proof, reliance on unproven assertions, contradictory findings, grant of remedies unsupported by evidence. 30.In Mbogo v Shah [1968] EA 93, the Court of Appeal held that an appellate court may interfere where the trial court acted on wrong principles or misapprehended the evidence or misdirected themselves in a material way. Such misapprehension evidence is classified as a misdirection that leads to wrong conclusion and justify appellate intervention to prevent injustice. It was submitted that the decision herein was against the weight of evidence and should be set aside as the same is legally and factually unsustainable. It was urged that the 1st Appellant’s appeal be allowed and that the trial court’s judgement be set aside and substituted with an order dismissing the Respondent’s suit with costs and the appeal costs be awarded as well. 31.Vide submissions dated 27/2/2026, learned counsel for the Respondent first gave a summary of the case. That the Respondent entered into a contract with the 1" Appellant herein in 2019 and in so far as git was agreed between the parties, the Respondent was authorized to transport, sell and deliver containers on behalf of the 1t Appellant and had since worked with him in the business of transportation and sale of containers consistently. Moreover, pursuant to the said oral agreement, it was a term that for any container sale made by the Respondent, the 1" Appellant would pay the Respondent transport costs of Kshs. 100, - 20000/= per container in addition to a sales commission arising thereto in the sum of Kshs. 30,000/ =.The substance of the Respondent's suit was that the Appellants had breached the foresaid Agreement in place. As such it was his case that in May, 2022, the 1"t Appellant did instruct him orally to transport from Mombasa to Kisumu and thereafter to sell four containers namely: GESU/418803/5 light green in colour, MSCU/704538/5 Beige colour, TTNU/975135/6 Maroon in colour and ZCSU/833662/4 Maroon in colour. The four containers were thereafter sold to the 2nd Appellant at a consideration of Kshs. 530,000/= each, out of which a commission of Kshs. 120,000/= per together with transport costs of Kshs. 400,000/= were payable to the Respondent but that was never been settled to date. That the 2nd Appellant however failed, upon delivery of the four containers and as such one container of the four was delivered namely MSCU/704538/5 Beige colour which remained unpurchased. That to resolve the issue, the 2nd Appellant introduced the Respondent to another innocent purchaser by the name Josephine Menga as a substitute and who proceeded to purchase the container. 32.It was submitted that in view of the above, the Respondent's case was proved. That on grounds 1 and 2 of the appeal, it was submitted that the trial Court did not error in law or otherwise in fact when he held that the Respondent had proven his case on a balance of probabilities and that the trial magistrate did not certainly error in finding that an oral contract existed between the Respondent and the 1s Appellant. Learned counsel posed the question ‘’Does an oral contract become void when it is not reduced to writing?’’ It was submitted that the answer is in the negative and urged the Court to so find. It was submitted that section 3(1) of the Law of Contract Act does not make all contracts void and unenforceable if they are not reduced into writing. It is also trite that oral agreements supported by credible evidence can be and are enforceable. This was the position of the court in Abdulkadir Shariff Abdirahim & another v Awo Shariff Mohammed T/A A. S. Mohammed Investments [2014] eKLR, where it was stated:“There is no general rule of law that all agreements must be in writing. The numerous advantages of a written agreement notwithstanding, all that the law requires is that certain specific agreements must be in writing or witnessed by some written note or memorandum. Section 3(1) of the Law of Contract Act is one such provision".Also Lord Reid in Steadman - vs- Steadman (1976) AC 536, 540 stated:“If one party to an agreement stands by and lets the other party incur expense or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn around and assert that the agreement is unenforceable".Further reliance was placed in section 119 of the Evidence Act which provides that;“The court may presume the existence of any fact which it thinks likely to have happened, regard being to the common course of natural events, human conduct and private and public business, in relation to the facts of the particular case." 33.It was submitted that a contract need not be in writing but can be inferred from the conduct of the parties. That the circumstance in this instant case suggests that an oral contract existed from the conduct of both the Respondent and the Appellants. The court of Appeal in William Muthee Muthami -v- Bank of Baroda (2014) eKLR, observed that for a contract to be valid under the law of contract, it must be proved that there was offer, acceptance and consideration.“In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the party in breach."It was therefore submitted that these three elements existed at the time when the four containers were being transported for sale and delivery to Kisumu. There existed an enforceable contract between the Respondent and the Appellants by reason of conduct. That the Respondent and the 1st Appellant entered into an oral contract for the sale and delivery of four containers. Subsequently, upon the Respondent identifying the 2nd Appellant as a purchaser, the 1st Appellant authorized him to transport and sell the containers from Mombasa to Kisumu. That the 2nd Appellant and the Respondent were in agreement that for each container transported, he was to cater for the transportation costs at Kshs. 100,000/= per container upon delivery in Kisumu.It was the 1st Appellant's testimony that he had an arrangement with the Respondent to transport containers to his clients subject to the transport costs being catered for by the purchasing client. It was also his admission that the failure by the purchasing client to pay for the transportation charges to the Respondent he was the one who was supposed to reimburse or compensate the Respondent for the transport costs. Indeed, it was not disputed by the 2nd Appellant that he had failed to purchase the four containers as earlier on agreed with the Respondent. The Appellants however despite delivery being made, they secretly schemed and went behind the Respondent's back to resell the containers to other buyers in a bid to deprive his deserved transport costs and commission. It was submitted that drawing from the conduct of both the Respondent and the 1st Appellant, there is no possible way that the Respondent could have transported and sold the containers without the knowledge and authorization of the 1st Appellant. Reliance was placed in the court of appeal case in Ali Abid Mohammed versus Kenya Shell & Company Limited (2017) eKLR, where the court stated that a contract between parties can exist where no words have been used but where it can be inferred from the conduct of the parties that a contract has been concluded. The court stated;“It therefore follows that a contract can exist where no words have been used but where it can be inferred from the conduct of the parties that a contract has been concluded. See Timoney and King v King 1920 AD 133 at 141. In the circumstances of the instant case, there existed an enforceable contract between the parties by reason of Conduct. Indeed, it was not disputed by the respondent that it supplied petroleum products to the appellant at a specific amount per liter and for a certain period of time."Accordingly, therefore on the issue of whether the Respondent and the 1st Appellant had entered into a valid oral contract, it was submitted that the same can be inferred from the conduct of the parties and that this court finds as such that there indeed existed an oral contract. 34.On Grounds 3 and 4 of the appeal, it was submitted that the trial magistrate did no error in holding that sales commission be paid to the Respondent and for further account to be taken as between the Appellants and the Respondent to establish the sum due to the Respondent. It was contended that the Respondent's case was that he entered into a verbal agreement with the 1st Appellant on the understanding that for every container he sold, he would be paid a commission of Kshs. 30,000/= per container, and further that he was also supposed to be paid the transportation costs of Kshs. 100,000/= per container transported. That the Respondent transported four containers from Mombasa to Kisumu and on arrival, the 2nd Appellant despite acknowledging receipt of the containers failed to effect full payment for the containers contrary to what had been agreed upon and instead promised to effect payment for the three containers the next day. That to date however, the Respondent's transport costs in the sum of Kshs. 400,000/= remain unpaid together with the sales commission in the sum of Kshs. 120,000/ =. That this was clearly an injustice occasioned to the Respondent and which injustice the trial Court corrected.It was submitted therefore that the Learned Trial Magistrate did not error in fact and in law when he held that the Respondent was entitled to a sales commission and further transport costs in the absence of a written contract but was instead guided by an oral agreement as between the parties. This court was urged to find in favour of the Respondent as the Respondent did prove his case on a balance of probabaility.On grounds 4 and 5 it is our humble submission that the findings of the trial magistrate were supported by the evidence adduced in Court by the Respondent. It was evident from the Mpesa extracts and invoices adduced into evidence that the Respondent was never paid his dues. 35.It was finally submitted that the 1" Appellant's acts were willful, malicious and oppressive and undertaken with the ill intent of breaching the oral contract as between him and the Respondent. As such the conduct of the Appellants subjected the Respondent to financial loss, damage and economic injury and it was those reasons that the Respondent approached the court for redress. That on the basis of the above grounds, the Respondent pleads with this Honourable Court to dismiss the appellant's appeal with costs. 36.I have given due consideration to the record of appeal and the rival submissions. It is not in dispute that the 1st Appellant and the Respondent had a business relationship for many years. It is also not in dispute that the 1st Appellant did contract the Respondent to transport four containers from Mombasa to Kisumu region. It is not in dispute that the contract aforesaid was not reduced into writing. I find the issue for determination is whether the Respondent proved his case on a balance of probabilities. 37.The legal burden of proof was on the Respondent to prove his claim on a balance of probabilities. It was therefore incumbent upon the Respondent to prove his assertions pleaded in his Plaint dated 25/10/2022. Section 107(1) of the Evidence Act, Cap 80 provides that: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. 38.However, the burden may shift to the Defendant (Appellants) to disprove the alleged claim. This is the evidential burden of proof, which is well captured under Sections 109 and 112 of the Evidence Act. See Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334. The two concepts are well illustrated by the Court of Appeal in the case of Mbuthia Macharia v Annah Mutua & Another [2017] eKLR, that:“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes an evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.” See Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR, 39.The standard of proof is well captured in the case of Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR, where the Court 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 is more probable than not, the burden is discharged, but if the probabilities 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 lose, because the requisite standard will not have been attained.” 40.Kimaru J. (as he then was) in William Kabogo Gitau vs George Thuo & 2 others (2010) 1 KLR 526 stated that:“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 opposite party is said to have established his case on a balance of probabilities. He has established that it is more probable than not that the allegation that he made has occurred.” 41.Flowing from the foregoing, the special claims sought by the Respondent were expected to be specifically pleaded and proved and that the Respondent was to prove the existence of an offer, acceptance, consideration, intention to create legal relations and certainty of terms as was stated in the case of Stancom Sacco Lt Vs Alliance One Tobacco Ltd [2018] eKLR. The 1st Appellant’s counsel has submitted that the courts should not wade into parties cases and aseek to rewrite contracts for them and cited the case of National Bank of Kenya Vs Pipe Plastic Samkolit (K) Ltd & Another [2001] eKLR where the court held that a court cannot rewrite a contract for parties and that the parties are bound by the terms of their contract unless fraud, coercion or undue influence is proved. Also in Hahn Vs Singh [1985] KLR 716 it was held that special damages must not only be pleaded but must be strictly proved with evidence such as receipts or documentations. It is noted that the Respondent did not produce any document in the trail court and solely relied on his oral contract with the 1st Appellant. Indeed, the 1st Appellant admitted on cross-examination that he had worked with the Respondent for a long time and that he used to hire him to transport containers on his behalf and that on the specific matter, he did hire him to transport four containers from Mombasa to Kisumu and that they had no written agreement in that regard. Iam therefore satisfied that the oral agreement between them which existed for a long period must be believed by the court as that was their way of doing business. 42.It is noted that the Respondent entered into a contract with the 1" Appellant herein sometimes in 2019 and insofar as it was agreed between the parties, the Respondent was authorized to transport, sell and deliver containers on behalf of the 1st Appellant and had since worked with him in the business of transportation and sale of containers consistently. Moreover, pursuant to the said oral agreement, it was a term that for any container sale made by the Respondent, the 1" Appellant would pay the Respondent transport costs of Kshs. 100,000/= - 200000/= per container in addition to a sales commission arising therefrom in the sum of Kshs. 30,000/ =.The substance of the Respondent's suit was that the Appellants had breached the aforementioned Agreement in place. It was his case that in May, 2022, the 1st Appellant did instruct him orally to transport from Mombasa to Kisumu and thereafter to sell four containers, namely: GESU/418803/5 light green in colour, MSCU/704538/5 Beige colour, TTNU/975135/6 Maroon in colour and ZCSU/833662/4 Maroon in colour. That the four containers were thereafter sold to the 2nd Appellant at a consideration of Kshs. 530,000/= each, out of which a commission of Kshs. 120,000/= per container together with transport costs of Kshs. 400,000/= were payable to the Respondent but that has never been settled to date. That the 2nd Appellant however failed, upon delivery of the four containers and as such one container of the four was delivered namely MSCU/704538/5 Beige colour which remained unpurchased. That to resolve the issue, the 2nd Appellant introduced the Respondent to another innocent purchaser by the name Josephine Menga as a substitute and who proceeded to purchase the 4th container. 43.It is noted that the Respondent’s claim is entirely based on an oral contract and that the learned counsel for the Respondent has posed the question ‘’Does an oral contract become void when it is not reduced to writing?’’ Even though section 3(1) of the Law of Contract Act provides that all contracts must be in writing, the conventional wisdom has always been that the same does not make all contracts void and unenforceable if they are not reduced into writing since it is trite that oral agreements supported by credible evidence can be and are enforceable. This was the position of the court in Abdulkadir Shariff Abdirahim & another v Awo Shariff Mohammed T/A A. S. Mohammed Investments [2014] eKLR, where it was stated:“There is no general rule of law that all agreements must be in writing. The numerous advantages of a written agreement notwithstanding, all that the law requires is that certain specific agreements must be in writing or witnessed by some written note or memorandum. Section 3(1) of the Law of Contract Act is one such provision". 44.Also Lord Reid in Steadman - vs- Steadman (1976) AC 536, 540 stated:“If one party to an agreement stands by and lets the other party incur expense or prejudice his position on the faith of the agreement being valid, he will not then be allowed to turn around and assert that the agreement is unenforceable". 45.Again, under section 119 of the Evidence Act it provides that;“The court may presume the existence of any fact which it thinks likely to have happened, regard being to the common course of natural events, human conduct and private and public business, in relation to the facts of the particular case." 46.. Going by the conduct of the 1st Appellant and the Respondent, it is clear that a contract need not be in writing but can be inferred from the conduct of the parties. The circumstance in this instant case suggests that an oral contract existed from the conduct of both the Respondent and the 1st Appellant. The Court of Appeal in William Muthee Muthami -v- Bank of Baroda (2014) eKLR, observed that for a contract to be valid under the law of contract, it must be proved that there was offer, acceptance and consideration.“In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the party in breach." 47.Iam satisfied that these three elements existed at the time when the four containers were being transported and delivered to Kisumu for sale. There existed an enforceable contract between the Respondent and the 1st Appellant by reason of conduct. The Respondent and the 1st Appellant entered into an oral contract for the sale and delivery of four containers. Subsequently, upon the Respondent identifying the 2nd Appellant as a purchaser, the 1st Appellant authorized him to transport the containers from Mombasa to Kisumu. The 2nd Appellant and the Respondent were in agreement that for each container transported, he was to cater for the transportation costs at Kshs. 100,000/= per container upon delivery in Kisumu. The 1st Appellant had earlier stated in his evidence that the customers were to meet the costs and in the event they fail to do so then he was the one to sort out the transporter (Respondent). Indeed, it was the 1st Appellant's testimony that he had an arrangement with the Respondent to transport containers to his clients subject to the transport costs being catered for by the purchasing client. It was also his admission that the failure by the purchasing client to pay for the transportation charges to the Respondent he was the one who was supposed to reimburse or compensate the Respondent for the transport costs. It was also not disputed by the 2nd Appellant that he had purchased some containers through a third party availed by the Respondent. The Appellants however despite delivery being made, the Appellants schemed and went behind the Respondent's back to resell the containers to other buyers in a bid to deprive his deserved transport costs and commission. Hence, drawing from the conduct of both the Respondent and the 1st Appellant, there is no possible way that the Respondent could have transported and sold the containers without the knowledge and authorization of the 1st Appellant. In the court of appeal case in Ali Abid Mohammed versus Kenya Shell & Company Limited (2017) eKLR the court stated that a contract between parties can exist where no words have been used but where it can be inferred from the conduct of the parties that a contract has been concluded. The court stated;“It therefore follows that a contract can exist where no words have been used but where it can be inferred from the conduct of the parties that a contract has been concluded. See Timoney and King v King 1920 AD 133 at 141. In the circumstances of the instant case, there existed an enforceable contract between the parties by reason of Conduct. Indeed, it was not disputed by the respondent that it supplied petroleum products to the appellant at a specific amount per liter and for a certain period of time." 48.Accordingly, therefore on the issue of whether the Respondent and the 1st Appellant had entered into a valid oral contract, it is obvious that the same can be inferred from the conduct of the parties and that this court finds as such that there indeed existed an oral contract. In any case, the 1st Appellant confirmed that he had been doing business with the Respondent since 2019 in that manner. I have no reason at all to doubt the 1st Appellant and this therefore bolsters the Respondent’s claim against him. Hence, the finding by the trial court was proper as the same was supported by the evidence availed by the parties. 49.One of the prayers sought by the Respondent was an order for a permanent injunction against the Appellants to prevent them from taking away the container that had been detained at Bondo Police Station. In the case of Giella Vs Cassman Brown & Co. Ltd [1973] EA 358 the court set out principles for grant of injunctive relief and that for an order of injunction to be granted, the Applicant must demonstrate a prima facie case with a probability of success, irreparable injury to be suffered if the order is not granted and in the event the court is in doubt to decide the matter on a balance of convenience. Indeed, the same relates to interlocutory injunctions but then the principle must ring true in that the Applicant is under obligation to prove a legal right. Indeed, the container detained did not belong to the Respondent but it was a subject of dispute between the Appellants and Respondent as well as one Josephine Menga who was the last purchaser and who was yet to clear the balance of the purchase price. The Respondent’s claim onto the container stemmed from the transportation costs and commissions. Apparently, the Appellants went behind the back of the Respondent and carried out the sale transaction and thus by- passed the Respondent who ended up not being paid his transportation costs and commissions. I find that the Respondent was entitled to the order of injunction pending the Appellants sorting out the said issue as well as the interest of one of the purchasers Josephine Menga. If the container was taken away by the 1st Appellant, then the Respondent would have been left empty handed yet he had incurred expenses transporting the containers from Mombasa to Kisumu. It is also noted that the 1st Appellant had instigated a criminal case against the Respondent, who was arrested and incarcerated in a bid to scare him away from pursuing his dues from him. It was clear that the 1st Appellant was out to throw the Respondent under the bus. The 1st Appellant having done business with the Respondent in the past by way of oral agreements cannot now turn around and resort to the use of technicalities to defeat the Respondent’s genuine claim. Iam satisfied that the trial court considered all the issues in controversy and applied the proper principles and thus arrived at the decision which must be upheld. 50.In view of the foregoing observations, it is my finding that the Appellants’ appeal lacks merit. The same is dismissed with costs to the Respondent. DATED AND DELIVERED AT SIAYA, THIS 21ST DAY OF MAY 2026D.KEMEIJUDGEIn the presence of:N/A Mathew Mwaura Kanyita............................... 1st AppellantN/A Zacheus Odhiambo Okeyo...........................2nd AppellantM/s Achieng....................................................for RespondentM/s Mourine.....................................................Court Assistant