https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8589

King’ori & another v Bindo (Civil Case 481 of 2006) [2026] KEHC 8589 (KLR) (Civ) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8589 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 481 of 2006 JN Mulwa, J June 18, 2026 Between Washington Rurigi King’Ori 1st Plaintiff Samuel Kimotho Gichuru 2nd Plaintiff and Rama Hamisi Bindo Defendant Judgment Pleadings 1.By a plaint dated 10/05/2006 and amended on 24/06/2023, Washington Rurigi King’ori and Samuel Kimitho Gichsuru (hereafter the 1st & 2nd Plaintiffs) sued Rama Hamisi Bindo (hereafter the Defendant) seeking judgment as against the Defendant by way of-;a.A declaration that the duties and or taxes payable on motor vehicle no. KAU 737T, KAU 088R, KAU 280U, KAU 922X, KAU 032M, KAU 317Q, KAU 400M & KAU 203T are payable by the Defendant against the said party.b.That the Defendant be and is hereby ordered to pay the sum of Kshs. 3,879,689/- to the Plaintiffs being a refund of the monies paid for taxes and duties to the Commissioner General, Kenya Revenue Authority.c.Damages for breach of contract.d.Costs of this suit.e.Interest on (b), (d) and (e) above. 2.The Plaintiffs state that the Defendant at all material times was the importer, legal and or beneficial owner and or authorized agent of motor vehicles registration no. KAU 737T, KAU 088R, KAU 280U, KAU 922X, KAU 032M, KAU 317Q, KAU 400M & KAU 203T (hereafter suit motor vehicles) whereas the Plaintiffs are and or were dealers of the suit motor vehicles. 3.The Plaintiffs go on to aver that having satisfied themselves of the authenticity of the registration of the suit motor vehicles, they purchased them, however the Commissioner General, Kenya Revenue Authority later issued notices to the effect that the said suit motor vehicles had taxes and duties owing. Upon notification, they reported the matter to the police in Mombasa whereupon the Defendant was arrested. 4.It was averred that upon the defendant’s arrest, he agreed in writing that he would pay the duties as may be assessed by the Commissioner General, Kenya Revenue Authority. It was further averred that the Defendant refused to honor his undertaking to pay the duties due and proceeded to hide in an unknown place whereas he was duty bound to pay the taxes and duties he fraudulently evaded to the tune of Kshs. 3,879,689/-. 5.That given the aforestated, the Commissioner General, Kenya Revenue Authority, issued a 30-day notice to the Plaintiffs to pay the duties, to wit failure, the suit motor vehicles would be impounded. In order to avert the aforestated while equally mitigating the situation, the Plaintiffs settled the said taxes owed, to the tune of Kshs. 3,879,689/- and thereafter sold the suit motor vehicles to various third parties. Consequently, the Plaintiff seeks a refund of the aforementioned monies they paid in owed taxes and duties from the Defendant. 6.The Defendant filed a statement of defence dated 01/03/2024 admitting to being the authorized agent of the owners of the suit motor vehicles however denied being the importer for legal and or beneficial ownership of the suit vehicles. The Defendant went on to deny the other key averment in the plaint meanwhile averred that the Plaintiffs claim that he fraudulently evaded paying taxes amount to Kshs. 3,879,689/- is unsubstantiated and ought to be dismissed for want of particulars. 7.That the purported agreement alluded to, was signed under unbearable stress and duress by the Plaintiffs and police, to wit, the Defendant denies that he is under any obligation to honor his alleged undertaking to pay any duties due. The Defendant therefore avers that the Plaintiffs claim for a refund other than having no legal basis, is time barred and ought to be dismissed with costs. 8.The suit proceeded to full hearing during which both parties called evidence in support of the averments in their respective pleadings. Plaintiff’s Case and Evidence 9.Washington Rurigi Kingori, the 1st Plaintiff testified as PW1. He began by adopting his witness statement filed on 13/07/2013 as his evidence in chief meanwhile adduced into evidence the documents appearing in the Plaintiffs bundle of documents dated 07/07/2013 as Pexh.1 - 43. The gist of his evidence was that he purchased motor vehicles KAU 032M, KAU 203T, KAU 317G & KAU 400M from the Defendant having verified that the same were duly registered with the Registrar of Motor Vehicles. Several months later, he came to learn from the Commissioner General, Kenya Revenue Authority that the vehicles did not have their duties and taxes paid. 10.He went on to state that he presented the vehicles to Commissioner General, Kenya Revenue Authority for assessment of taxes and duties, to wit, they informed the Defendant of the said amount due, who in turn agreed to settle the amount due and owing as the importer of the said motor vehicles. 11.The matter was also reported to the police, to wit, that the parties later entered into an agreement. Upon receiving the duration notice from Commissioner General, Kenya Revenue Authority, within which to pay the duties and taxes, both he and 2nd Plaintiff, in order to mitigate the situation, paid the said duties and taxes in respect of the suit motor vehicles in the sum of Kshs. 3,879,689/-. 12.He concluded by stating that the Plaintiffs acted upon representation of the Defendant that the duties and taxes owing had been paid, to wit, they now seek a refund of the same. 13.On Cross-Examination, he stated that he purchased four (4) vehicles and that he evinced the same in the bundle of documents adduced as exhibits. He also confirmed that some of the suit motor vehicles were registered in the Defendant’s name and the Tuli Khalfan, such as m/v KAU 032M, KAU 317G, KAU 203T & KAU 400M with other registered in the name of Fatuma Omar. That he executed the sale agreements in respect of the motor vehicles he bought, to wit, the proceeds of the said sale were received by the Defendant. 14.It was his evidence that to the best of his knowledge, the person registered as the owner of a motor vehicle, is deemed the owner unless proven otherwise. That despite conducting searches with the Register of Motor Vehicles, he did not adduce any before the Court. 15.That he evinced notices from Kenya Revenue Authority, to himself, the Defendant and Tuli Khalfan and assessment on taxes owing in respect of each vehicle. He however confirmed having not adduced assessment of duties on three (3) of the vehicles. That despite paying the taxes and duties owing to all the said vehicles he could not confirm exactly how much had been paid. 16.He also confirmed having adduced the agreement demonstrating that the Defendant had agreed to pay the duties and taxes owing to Kenya Revenue Authority however the latter did not fulfil the said agreement. That they managed to freeze the Defendant’s bank accounts however he did not evince the said freezing order before the Court. He iterated that they eventually settled to the taxes and duties owing to the Kenya Revenue Authority given that the third-party purchasers of the said motor vehicles also threatened them with Court proceedings. 17.In re-examination, he clarified that the agreements having different parties was because the Defendant informed them that he had imported the vehicles under different names. 18.Samuel Kimotho Gichuru, the 2nd Plaintiff testified as PW2. He too adopted his witness statement dated 13/07/2013 as his evidence in chief while equally relying on Pexh.1 – 43 as part of his evidence. It was his evidence that he purchased motor vehicles KAU 737T, KAU 088R, KAU 992X & KAU 280U from the Defendant having verified that the same were duly registered by Registrar of Motor Vehicles. 19.The remainder of his evidence per his adopted witness statement was similar to that of PW1. 20.On Cross-Examination, he confirmed having purchased the vehicles from the Defendant however later learnt that duty had not been paid by the seller. The notices from Kenya Revenue Authority were not in his name however took the vehicles for assessment. When he bought the said vehicles they were not in the Defendant’s name however the latter maintained that they were his vehicles. 21.Likewise, to PW1’s evidence, he stated that the matter was reported to the police, to wit, the Defendant committed to pay the said duties and taxes. 22.He went on to state that after purchase he was given the logbook to the said vehicles, of which were in the names of the Defendant’s two (2) wives. That notwithstanding the registered owner of the vehicles, he sued the Defendant on the basis that he was the one who received the purchase price. He concluded by stating that he did not transfer the vehicles into his name given that he intended to sell them, of which, he did. Therefore, the signatures in the transfer forms were in respect of the registered owner and the eventual purchasers of the vehicles. 23.In re-examination, he maintained that notices from Kenya Revenue Authority were to the owners of the vehicles. However, he agreed to pay the taxes and duties, given that Kenya Revenue Authority threatened to repossess the vehicles despite having bought them from the Defendant and later sold them to third parties. In summation, he stated that when he bought the vehicles from the Defendant he thought duty had been paid hence the present suit seeking a refund. Defendant’s Case and Evidence 24.The Defendant testified as DW1. He too adopted his witness statement dated 14/03/2024 as his evidence in chief meanwhile adduced the bundle of documents appearing in the Defendant list of documents dated 01/03/2024. It was his evidence that at the material time, he owned a car wash in Mombasa, which occasioned him to act as an agent in respect of the sale of various motor vehicles, earning him a commission, for each sale. The gist of his evidence was that as an agent, it was not obligatory upon him to pay Kenya Revenue Authority duties and taxes over the said motor vehicles, given that the said duty was placed on the owners. 25.On Cross-Examination, he denied executing any agreement alluded to by the Plaintiffs concerning payment of duties and taxes. He maintained that he was only an agent on behalf of the owners of the suit motor vehicles and that it is the Plaintiffs who ought to have paid the duties and taxes. He equally denied executing any sale agreement over the suit motor vehicles. 26.It was his evidence that he was forced to record a witness statement before the police station by the Plaintiffs and police. While being referred to the agreement executed at the police station, he confirmed that the identification number appearing on the same was his whereas he equally executed and signed the subsequent agreement. 27.He iterated not being the owner and or importer of the suit motor vehicles to thus obligate the payment of duties and taxes upon him. That he only executed the document at the police station upon explaining that he did not have a criminal case and or stole the said vehicles, however, maintained that the agreement at the police station was executed under duress. 28.In re-examination, he maintained that he was merely a broker and therefore had no authority to execute the sale agreements. Nevertheless, he categorically denied executing any sale agreements. 29.At the close of the trial, directions were taken on filing of submissions. The respective parties duly complied. Plaintiffs Submissions 30.Counsel for the Plaintiff began his submissions by restating in brief the history of the matter meanwhile condensed his submission into five (5) cogent issues. As to whether the Defendant was bound by the sale agreement entered into with the Plaintiffs, counsel submitted that parties are bound by contracts freely entered into, to wit, the sale agreements expressly provided that all taxes had been paid and that the Defendant would be responsible for any tax issues arising thereafter. The decision in National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR was called to aid in the forestated regard. 31.It was further submitted that the sale agreements having been duly executed and witnessed, the Defendant neither pleaded nor proved any vitiating factor such as coercion, fraud or undue influence that would justify disregarding the agreements. That despite the Defendant claiming that he acted as an agent in respect of the sale of the vehicles in question, no evidence was adduced proving any agency relationship. 32.On whether the Defendant breached the said agreements by failing to ensure the motor vehicles were duty and tax compliant, while placing reliance on the English decision in Hadley v Baxendale (1854) 9 Exch 341 counsel posited that the Defendant’s failure to pay taxes in respect of the suit motor vehicles constituted a foreseeable consequence of the Defendant’s breach, to wit, the Plaintiffs ought to be restored to the position they would have been had the sale agreement been performed as contracted. 33.Concerning whether the Defendant’s admission and part payment constituted acknowledgment of liability, it was argued that after the Defendant’s arrest he voluntarily acknowledged liability in writing and equally paid Kshs. 500,000/- towards the debt and promised to settle the latter. That the Defendant’s conduct amounted to an unequivocal acknowledgment of liability hence he is estopped from denying liability after acknowledging the debt and making part payment. The provisions of Section 23 of the Limitation of Actions Act, the decisions in James Maingi v Samuel Mukuria & 2 Others [2008] eKLR, Co-operative Bank of Kenya v Peter Kimani [2010] eKLR and Wilfred Nyawira Maina v Peterson Onyiego Gichana [2013] eKLR were cited in the latter regard. 34.Submitting on whether the Plaintiffs are entitled to a refund of the sum of Kshs. 3,879,689/-, counsel placed reliance on the decision in Madhupaper International Limited & Another v Kenya Commercial Bank Limited & 2 Others [2003] eKLR to argue that the taxes paid to Kenya Revenue Authority were under compulsion given the threat of impoundment. Further, the vehicles having been sold to third parties, failure to pay the said taxes would have disrupted the Plaintiffs business operations, damaged their reputation and exposed them to potential legal claims from purchasers. That the Defendant received the full purchase prices for the vehicles while the Plaintiffs discharged tax liabilities that contractually belonged to the Defendant therefore the Plaintiffs are entitled to a refund given that it would be unjust for the Defendant to retain the benefit without reimbursement. 35.On whether an award of damages, interest and costs is warranted, it was summarily posited that the Defendant received full purchase prices for the suit vehicles, failed to pay taxes he had contractually agreed to bear, the Plaintiffs discharged the said tax obligations whereas equity requires restitution and reimbursement therefore the reliefs as sought for in the plaint are awardable. The decisions in Kenya Anti-Corruption Commission v Mututho & another [2022] KEHC 11975 (KLR) and ICEA Lion v JKUAT Case [2024] KEHC 11987 (KLR) were relied on in the above regard. In conclusion it was submitted that the Plaintiffs having proved their case on a balance of probabilities as such the Court ought to enter judgment as sought in the plaint. Defendant’s Submissions 36.On his part, counsel condensed his submission into six (6) salient issues for the Court’s consideration. On the preliminary question(s) challenging this Court’s territorial jurisdiction to hear and determine the suit, counsel relied on the of-cited decision in Owners of Motor Vessel ‘Lillian S’, Samuel Kamau Macharia and the decision in Tai Jeans Garments Company Limited v Vijay Morjaria Nairobi HCCC No 131 of 1999 as cited in Hangzhou Agrochemical Industries Ltd v Panda Flowers Limited [2012] KEHC 1937 (KLR) to posit that Nairobi is the wrong forum to institute the present proceedings given that the Defendant resides in Mombasa; the cause of action arose in Mombasa; and that the accounts, agreement & arrest referenced by the Plaintiffs, all arose in Mombasa. Further, given the pecuniary jurisdiction of the dispute, the matter ought to have been filed before the Magistrate Court. Therefore, counsel summed up that the Court lacks territorial and pecuniary jurisdiction to entertain the suit as filed. 37.Submitting on whether the Plaintiffs have a reasonable cause of action, counsel placed reliance on the decision in DT Dobie & Company (Kenya) Limited v Muchina & another [1980] KECA 3 (KLR) to submit that the suit motor vehicles were not registered in the Defendant’s name, to wit, by dint of Section 9(2) of the Traffic Act, placed the payment of any tax obligations upon the registered owners. Counsel went on to argue that the agreements relied on by the Plaintiffs were forgeries and were irregularly witnessed. Therefore the totality of his argument was that the suit as against the Defendant discloses no cause of action and ought to be struck out. 38.On whether the Plaintiffs pleadings before the Court are competent, while calling to aid the decision in Toppias & 4 others v Bomet County Government & another [2025] KECA 841 (KLR) counsel argued that the suit was dismissed in 2019 whereas the amended plaint purports to amend a plaint dated 03/05/2023 instead of the original plaint filed in 2006. Therefore, whereas the said amended plaint introduces a new cause of action, it renders the suit time barred by dint of Section 4(1)(a) of the Limitation of Action Act and or renders the plaint non-compliant or an affront to the provisions of Order 2 Rule 10 and Order 8 Rule 7 of the Civil Procedure Rules (CPR). 39.Submitting on whether the Defendant has been sued as a proper party in these proceedings, counsel posited that the registered owner of the suit vehicles were Rashid Hamisi Mane, Fatma Omar Ahmed and Tuli Khalfan Ali, with notices from the Kenya Revenue Authority directed at the forestated persons. Whereas the Defendant’s name only appears in the disputed agreements any liability in respect of unpaid taxes ought to have been directed to the above persons or importers of the suit vehicles. 40.Concerning whether the police investigations into the Defendant’s Bank accounts was legal, counsel submitted that banking information is protected by confidentiality and Article 31 of the Constitution therefore any information that was obtained outside of a Court orders was inadmissible in Court. Counsel went on to posit that any question of estoppel as to the duties and taxes paid in respect of the suit vehicles operates as against the Commissioner General, Kenya Revenue Authority and not the Defendant. 41.Counsel likewise submitted that the purported sale of the suit vehicle violated the principle of Nemo Dat Quod Non Habet given that Defendant was neither the registered owner of the suit vehicles nor executed the purported sale agreements. That by dint of the East African Community Customs Management Act and the Customs and Excise Act, the tax obligation on the suit vehicles fell on the registered owners or importers. 42.It was further posited that the agreement purportedly executed at the police station and payment of Kshs. 500,000/- did not constitute an admission because-; the agreement prepared at the police station was irregular; was prepared under duress; and had signature discrepancies. In conclusion, it was submitted that the Plaintiffs are neither entitled to a refund or damages, to wit, the suit ought to be dismissed with costs. Analysis and Determination 43.The Court has carefully considered the respective parties’ pleadings, the evidence adduced, and the parties' written submissions, to wit, it postulates that the Issues for determination concern-;a.Whether a declaration ought to issue that the duties and or taxes payable in respect of the suit motor vehicles, is payable by the Defendant?b.Whether the Court ought to order the Defendant to pay the sum of Kshs. 3,879,689/- to the Plaintiffs being a refund of monies paid for taxes and duties to the Kenya Revenue Authority?c.Whether the Plaintiffs are entitled to damages for breach of contract?d.Who ought to bear costs? 44.Before considering the above framed issue(s), the Court wishes to dispose of the preliminary questions concerning whether the suit stood dismissed as at 29/04/2019 and whether the suit is an affront to both pecuniary and territorial jurisdiction of the Court as pleaded and submitted by the Defendant. 45.On the first issue on whether the suit stood dismissed as at 29/04/2019? Having meticulously perused the record before this Court, I note that there is no order to the said effect as argued by the Defendant. What I can gather from the record is that on 29/03/2019 there were proceedings before the Hon. Wandia - Deputy Registrar (DR) wherein counsel appearing for the Defendant and the Defendant (Kenya Revenue Authority) did not object to dismissal of what the Deputy Registrar (DR) noted as a Bill of Costs. 46.Upon hearing representation by both counsel appearing for the above parties and in the absence of counsel for the Plaintiff, the Deputy Registrar (DR) proceeded to order that “The bill of costs is dismissed”. 47.As to whose Bill of Costs and or the date of the Bill of Costs the Court was referring to, the same cannot be derived from the proceedings on 29/03/2019. The Court further notes that the subsequent proceedings were taken on 26/04/2022. Therefore, with above in reserve, and in the absence of any Court order demonstrating that indeed the suit was dismissed on 29/04/2019, the objection raised by the Defendant, is not well taken. 48.As to the issue of pecuniary jurisdiction? By the Plaintiffs' pleadings they seek a refund of Kshs. 3,879,689/- alongside damages for breach of contract. It is trite that by dint of Section 11 of the Civil Procedure Act (CPA) a party ought to institute a suit in the Court of the lowest grade competent to try it. 49.Therefore, given the Plaintiffs pleadings as may be read alongside Section 7 of the Magistrates Court’s Act, the present suit was suitably capable of disposal before the subordinate Court. While the latter may be the ideal situation, overarchingly Article 165(3)(a) of the Constitution bestows upon this Court unlimited original jurisdiction in civil matters. Nevertheless, the Civil Procedure Act and Magistrates Court’s Act as read alongside Article 165(3)(a) of the Constitution do not oust this Court of its original jurisdiction, to entertain the suit as filed. 50.On the issue of territorial jurisdiction, the Court of Appeal in Christopher Orina Kenyariri t/a Kenyariri & Associates Advocates v Salama Beach Hotel Limited & 3 others [2017] KECA 578 (KLR) pithily settled that Section 15 of the Civil Procedure Act, on which the Defendant’s objection appears to the premised on, applies only to subordinate Courts and does not restrict the jurisdiction of the High Court. 51.The Court in Christopher Orina Kenyariri (supra) further observed that establishment of various High Courts within the territory of Kenya and filing of suits therein, is purely administrative and does not render a suit a nullity or deprive the High Court of jurisdiction. That such an objection is procedural and technical, to wit, may be cured by dint of Article 159 of the Constitution. Therefore, in light of the above rendition, I reasonably believe that the Defendant's objection concerning territorial jurisdiction to entertain the instant suit cannot sustain in the circumstance. 52.Lastly, concerning the competency of the Plaintiffs pleadings, I note from the record that the Plaintiffs’ counsel made an oral application before Ongeri, J. on 15/03/2023 seeking amendment of the plaint, which application was extemporarily granted. The Defendant was equally and subsequently granted leave to file his amended defence on 23/05/2024. 53.The Defendant has made heavy use of the fact that the amended plaint refers to an unknown plaint dated 03/05/2023 therefore it would mean that the latter pleading is different from one dated 10/05/2006. A cursory perusal of the amended plaint and originally filed plaint, I note that the former is indeed an amendment of the latter and is not in any way a lodgment of a fresh claim as purported by the Defendant. 54.In my estimation and in all probability, the date as captured in the amended plaint, in reference to the original plaint, appears to be a typographical error and does not refer to an entirely different set of pleading, as contended by the Defendant. The argument on its face appears technical if not trivial and certainly does not go to the substance of the matter. Consequently, the contestation and or objection over the amended plaint is denied. Whether a declaration ought to issue that the duties and or taxes payable in respect of the suit motor vehicles, is payable by the Defendant? 55.At the heart of the matter is a determination whether the Plaintiffs have established on a balance of probabilities their claim as against the Defendant. Pertinent to the determination of the said issue are the pleadings, which forms the basis of the respective parties’ case before this Court. See-; Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91. 56.That said, akin to pleadings, is the evidence in support of the pleadings. Nevertheless, it warrants reminder, the applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. In Karugi & Another v Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that-:“The burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof….The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” 57.The gist of the Plaintiffs grievance against the Defendant has been captured elsewhere in this judgment. However, what I garner is that the Plaintiffs case hinges upon various agreements in respect of the suit motor vehicles adduced as Pexh.1 - 5 and an agreement dated 03/04/2006 & 05/05/2006 as executed by the Defendant and adduced as Pexh.6 & 7, to wit, the Plaintiffs contend that the Defendant was in breach of. 58.It is trite that any claim founded on breach of a contractual obligation, there ought to exist a valid contract, in the first instance. Patently, the role this Court plays while adjudicating over a dispute between contracting parties was since settled in the oft-cited decision of National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR, wherein it was succinctly stated that-;…..“A court of law cannot re-write a contract between the parties whereas its role is limited to interpretation of the same. This is because contracting parties are free to specify the terms and conditions of their agreement, and that when parties do contract, the court does not have the right or ability to substitute its judgment for that of the parties.” 59.The Plaintiffs by their evidence contend that they purchased the suit motor vehicles from the Defendant and later came to learn that duty had not been paid on them. While some of the logbooks or registration documents in respect of the suit vehicles were not in the Defendant’s name, it was the latter that received the full purchase price for the suit vehicles. In support of the above averment, concerning purchase, the Plaintiff’s adduced various sale agreements dated 07/09/2005, 14/10/2005, 17/01/2006 & 08/11/2005 in respect of motor vehicles KAU 032M, KAU 203T, KAU 317Q, KAU 280U and KAU 737T as Pexh.1 – 5. Ex facie, it can be gathered from the said agreements that the 1st Plaintiff and the 2nd Plaintiff trading as Vienna Motor Dealer executed the same alongside the Defendant. 60.Nevertheless, the Defendant vehemently refuted the Plaintiffs position regarding the said agreements. He however did concede to owning a car wash, which, he purported, occasioned him opportunity to act as an agent in respect of the sale of various motor vehicles, earning him a commission, on the pretext of being a link between the buyers and sellers of the said motor vehicles. Regardless, he maintained that the obligation to pay taxes and duties over the sold motor vehicles vested on the owners however categorically denied executing the sale agreements dated 07/09/2005, 14/10/2005, 17/01/2006 and 08/11/2005. 61.That said, Clause 4 of the said sale agreements provided as follows-:“4.The Vendor warrants that all import duties and government charges for the registration of the said motor vehicle in Kenya have been paid and if not, the Vendor will be wholly responsible.” 62.While the execution of the sale agreements was disputed by the Defendant he did concede to the executing agreements dated 03/04/2006 & 05/05/2006, though under duress as he stated. The Defendant made heavy weather vide his submission that his signatures appearing in sale agreements dated 07/09/2005, 14/10/2005, 17/01/2006 and 08/11/2005 were forgeries however fell short of placing any evidence to substantiate the said fact. 63.With respect to the agreements dated 03/04/2006 & 05/05/2006, the Defendant took the position that execution of the same was under unbearable stress and duress from the Plaintiffs and police, while in police custody. Likewise, on the issue he did not tender any evidence. 64.This Court though applying itself to the exhortation in Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 Others [2014] eKLR has held time without number that while the legal burden is always on the plaintiff to discharge his burden of proof on a balance of probabilities, the evidential burden often shifts and is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue. 65.Here, the initial legal and evidential burden lay with Plaintiffs to prove the existence of the sale agreements, the terms thereof, and execution of the same by the parties hereto. They discharged the said burden by dint of Pexh.1 – 5. 66.On the part of the Defendant, despite raising concerns on forgery of his signature and non-execution of the said sale agreement, the evidential burden fell at his footstep, and he evidently failed to pick up on the same, by failing to adduce evidence to affirm that he indeed did not execute the agreements in question and or that the said signatures appearing therein were indeed forgeries. 67.It is not enough to claim and throw aspersions to the Court without any proof or justification. The Court cannot be called upon to become a forensic document examiner or handwriting expert at the whims of the Defendant, yet he is the party alleging and considerably failed to prove, to wit, the said position as assailed by the Defendant cannot sustain in the circumstance. 68.Concerning the agreements dated 03/04/2006 & 05/05/2006 adduced as Pexh.6 & 7, being executed under duress, it is not in dispute that the Defendant was arrested, given the disputation between the parties over Clause 4 in the sale agreements dated 07/09/2005, 14/10/2005, 17/01/2006 and 08/11/2005. 69.The gist of the agreement dated 03/04/2006, as I gather, is that the Defendant accepted that he would settle the taxes and duties with respect to suit motor vehicles and equally agreed to deposit his passport with Mombasa Provincial Criminal Investigation Officers (PCIO) pending resolution of the matter with Kenya Revenue Authority. 70.The Defendant further agreed therein, that parties would meet on or before 15/05/2006, to review whether he had cleared the said duties and taxes with Kenya Revenue Authority while it was equally qualified therein that the said agreement was executed voluntarily by the parties. 71.On its part, agreements dated 05/05/2006, the Defendant conceded to having paid part of the duties owing vide cheques of Kshs. 200,000/- and Kshs. 500,000/- with an undertaking that the balance on the duties would be paid as soon as compoundment is completed by Kenya Revenue Authority.It is on the above premise that the latter agreement that the Plaintiffs anchor their argument that the said cheques being part payment constituted admission and an unequivocal acknowledgment of liability on the part of the Defendant. 72.As earlier noted, the Defendant disputed the agreement dated 03/04/2006 as non-binding, on grounds of having been executed under duress. It is since settled that a Court cannot re-write a contract between contracting parties whereas the parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved. 73.By his statement of defence, the Defendant indeed pleaded at Paragraph 9 thereof that he executed the said agreement under unbearable stress and duress. However, the question that begs at this juncture is whether he proved the duress to warrant vitiation of the said agreement? 74.The Court of Appeal in Mohamed Ahmed Abdun & another v Mini Bakeries (MSA) Limited [2019] KECA 341 (KLR) while discussing in length the element of duress or coercion in a contract cited its decision in John Mburu v. Consolidated Bank of Kenya [2018] eKLR wherein the Court quoted with approval the words of the privy council in Pao On vs. Lau Yiu Long [1980] A.C. 614, that in determining whether distress is established-;“Duress, whatever form it takes, is a coercion of the will so as to vitiate consent. Their Lordships agree that in a contractual situation commercial pressure is not enough. There must be present some fact on which could in law and be regarded as coercion of his will so as to vitiate his consent…In determining whether there was coercion of will such that there was no true consent it is material to enquire whether the person alleged to have been coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy, whether he was independently advised; and whether after entering the contract he took steps to avoid it.” 75.In the general parlance of the situation, I would agree that resolving a civil dispute at a police station by way of executing an agreement to secure release from custody with respect to the dispute or reason for lodging a complaint, would in all probability amount to duress. Here, as concerns Pexh.6, it is noted that the Plaintiffs pleaded at paragraph 10 of their plaint that they reported the matter to the police and the same was booked under occurrence book 01/04/2006 whereupon the Defendant was arrested. 76.The Defendant in his adopted witness statement while admitting the contents of paragraph 10 of their plaint other than asserting that he was arrested and detained, does not clarify when the arrest occurred and the duration of his detainment. While I note that Pexh.6 was executed on 03/04/2006 neither the Defendant nor the Plaintiffs evidence shed light at to whether the Defendant was in custody or detained on the date he executed the said agreement. The same goes for Pexh.6, which is dated 05/05/2006. 77.The Court of Appeal in Mohamed Ahmed Abdun (supra), while somewhat faced with similar facts where a matter had been reported to the police with the claimant being arrested thereafter, put it that-;“Had the agreements been procured by duress, one would have expected that the appellants would have disowned the agreements at the earliest opportunity. Instead, a month after signing the agreements they made payment and did not raise any complaint until a suit was filed against them in 2005.” 78.Likewise, firstly, at the risk of repetition there is no indication from the evidence tendered before this Court that Pexh.6 & 7 were executed while the Plaintiff was in custody. Secondly, applying my mind to the rendition in Pao On (supra), the Defendant did not evince any steps taken either by way of protest, or lack of alternative course by way of legal remedy, or independent advice or steps toward avoidance of the agreements. He was palpably not in perpetual custody to hinder any of the above actions. Thirdly, almost a month later the Defendant executed another agreement acknowledging having paid a sum of Kshs. 700,000/- by way of cheques and only later raised the issue of duress during these proceedings. Evidently, the totality of the above leads to the invariable conclusion that Pexh.6 & 7 were not procured under duress as assailed by the Defendant. The said agreements were therefore binding. 79.It would be remiss, if I do not comment on whether the Plaintiffs suit discloses no reasonable cause of action by dint of the Traffic Act placed the payment of any tax obligations upon the registered owners, whereas the importers and registered owners of the vehicles were Rashid Hamisi Mane, Fatma Omar Ahmed and Tuli Khalfan Ali, with notices from the Kenya Revenue Authority issuing to the forestated persons, no tax obligations arose as against the Defendant. 80.From the exhibits relied on by the Plaintiffs being Tax Demand Notices, Registration Documents, Import Declaration Forms, Kenya Revenue Authority - Receipts Payments Slips & Release Order or Bill of Lading, neither of the documents bore the name of the Defendant. The East Africa Community Customs Management Act and provisions of the Traffic Act, describe who an “owner” is, as may relate to registration and or customs purposes. The Court would have been inclined to entertain the argument on how tax obligation would arise as against the Defendant. 81.Save that at this juncture, on the premise of this Court’s earlier finding concerning Pexh.6 & 7, in my view, it would be moot to consider the issues surrounding the Tax Demand Notices being addressed to other persons and ownership with respect of the suit motor vehicles, in light of this Court’s earlier rendition. 82.In conclusion, on whether a declaration can issues as sought by the Plaintiffs, admittedly by their own pleadings, the Plaintiffs concede that in order to mitigate the situation they were left with no choice but to pay the taxes and duties owing to the Kenya Revenue Authority, which in essence, forms the basis for the next issue for determination as earlier coined elsewhere in this judgment. The consequence of the above admission in the Plaintiff’s pleadings is that it would be moot to render such a declaration given that the said duties have since already been paid. Whether the Court ought to order the Defendant to pay the sum of Kshs. 3,879,689/- to the Plaintiffs being a refund of monies paid for taxes and duties to the Kenya Revenue Authority? 83.Here, it is apparent that the gravamen of the Plaintiffs case is that they seek refund from the Defendant the sum of Kshs. 3,879,689/-, they paid in duties and taxes to the Kenya Revenue Authority, which in core, constitutes a special damage claim.Decisions on special damages are replete and this Court does not intend to reinvent the wheel on the same. That said, Chesoni, J (as he then was) in the case of Ouma v Nairobi City Council (1976) KLR 304 held that -:“Thus, for a plaintiff to succeed on a claim for special damages he must plead it with sufficient particularity and must also prove it by evidence. As to the particularity necessary for pleading and the evidence in proof of special damage the court’s view is as laid down in the English leading case on pleading and proof of damages, Ratcliffe v Evans (1892) 2 QB 524 where Bowen L J said at pages 532, 533;-The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”See also-; David Bagine v Martin Bundi [1997] eKLR and Hahn -v- Singh [1985] KLR 716. 84.As earlier noted, the Plaintiffs seek a refund in the sum of Kshs. 3,879,689/- on the backdrop of agreement and assessment by Kenya Revenue Authority with respect to the suit vehicles. The Defendant vehemently positioned that the Plaintiffs are not entitled to any refund.To the forestated end, I note that from the exhibits relied on by the Plaintiffs, no material was placed before this Court demonstrating that indeed payment to the tune of Kshs. 3,879,689/- were remitted to Kenya Revenue Authority as taxes and duties over the suit motor vehicles. 85.It has since been long settled that special damages when pleaded must be specifically proved. Therefore, it is on the premise of the said omission by Plaintiffs, that their claim for a refund in the sum of Kshs. 3,879,689/- cannot sustain as against the Defendant and is accordingly declined as sought. Whether the Plaintiffs are entitled to damages for breach of contract? 86.On the above issue, I draw guidance from the Court of Appeal decision Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] KECA 312 (KLR), wherein it was held that;“As a general rule general damages are not recoverable in cases of alleged breach of contract and that has been the settled position of law in our jurisdiction, and with good reason. In DHARAMSHI vs. KARSAN [1974] EA 41, the former Court of Appeal held that general damages are not allowable in addition to quantified damages with Mustafa J.A expressing the view that such an award would amount to duplication” 87.It is equally settled that an injured party would however be entitled to special damages in respect of actual loss suffered as a result of the breach. In Anson’s Law of Contract, 28th Edition at Pg. 589 - 590, it is stated: -“Every breach of a contract entitles the injured party to damages for the loss he or she has suffered. Damages for breach of contract are designed to compensate for the damage, loss or injury the claimant has suffered through that breach. A claimant who has not, in fact, suffered any loss by reason of that breach, is nevertheless entitled to a verdict but the damages recoverable will be purely nominal”. 88.Given this Court's finding on the first issues, it is obvious that the Defendant was in breach of the said sale agreement in respect of the motor vehicles when he failed to pay all import duties and government charges for the registration of the said motor vehicles. Further, referencing the agreements dated 03/04/2006 and 05/05/2006, the Defendant has acceded to settling the said owing taxes and duties to the Kenya Revenue Authority. 89.It is not in dispute that the Kenya Revenue Authority made a demand for taxes and duties owing in respect of the suit motor vehicles. The Defendant committed to paying the same but failed to do so and therefore was in breach. While onus was on the Plaintiff to specifically prove the actual loss suffered by way of paying the taxes and duties owing to Kenya Revenue Authority, on the premise of the Defendant’s contractual obligation, they too failed to discharge the said burden. 90.However, I note that a claimant who has not, in fact, suffered any loss by reason of a breach, is nevertheless entitled to a verdict but the damages recoverable will be purely nominal as stated in Anson’s Law of Contract. The Defendant therefore cannot escape liability and the Court will award the Plaintiffs a nominal sum of Kes.500,000/- by way of nominal damages for breach of agreement earlier discussed in this judgment. Final Disposition 91.Accordingly, the Plaintiffs suit succeeds in part as against the Defendant by way of an award of nominal damages in the sum of Kshs. 500,000/-. The said amount shall attract interest at Court rates from the date of this judgment until full settlement. Finally, on costs, applying my mind to the provision of Section 27 of the Civil Procedure Act, I award costs of the suit in favour of the Plaintiffs to be borne by the Defendant.Orders Accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JUNE 2026.………………………JANET MULWA.JUDGE