Mick Dennis Gitonga v Nancy Odhungo

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL DIVISION (APPELLATE SIDE)** **CIVIL APPEAL NO. E024 OF 2025** **BETWEEN** **MICK DENNIS GITONGA….………....................................................APPELLANT** **AND** **NANCY ODHUNGO……………………………………..…………..RESPONDENT** **(*Being an appeal from the Judgement and Decree of Hon. B.A Luova, RM/Adjudicator dated 9th January 2025 at the Small Claims Court at Machakos in SCCC No. E0447 of 2024*)** **JUDGMENT** **Introduction and Background** 1. Before the subordinate court, the Appellant filed suit against the Respondent seeking judgment for Kshs.110,000.00 plus interest at court rates. He stated that he is a tour driver and he engaged the Respondent, who runs a travel consultancy, *Golden Key Travel Consultants*, to secure travel documents and a job for his son, Ian Kairanya Gitonga, in Canada. The Appellant claimed their agreement was made orally on 7th March 2022 and that between that date and 28th April 2022, he advanced the Respondent a total of Kshs.150,000 through bank transfers to her *Standard Chartered Bank* account. 2. The Appellant claimed that the Respondent failed to secure the travel documents and job for his son within the agreed 6-month period and that it took over two years for the Respondent to return his son's passport, which only happened after the Appellant confronted her. That on 6th May 2024, the Respondent made a partial refund of Kshs.40,000.00 by way of M-Pesa, leaving a balance of Kshs.110,000.00, that the agreement was always between himself and the Respondent and not his son who was merely a dependent and unemployed at the time and acted on his father's behalf. The Appellant averred that the Respondent failed to provide any receipts to prove her expenses and insisted that the balance due from her was Kshs.110,000.00 which it sought from the Respondent. 3. In response, the Respondent denied owing the Appellant any money, that the contract existed between the Respondent and the Appellant’s son, not the Appellant himself and was governed by a written "*Acknowledgment and Declaration Form*" executed on 28thApril 2022. She admitted receiving Kshs.150,000 as a down payment but claims she partially performed the contract, as evidenced by documents from the Canadian Embassy including the biometric instruction letter, appointment letter and confirmation letter. That the process was stopped by the Appellant who demanded a refund and his son's passport and she claims to have incurred expenses amounting to 185 Canadian Dollars for visa issuance and that under the contract's terms, if a client cancels before completion, they are liable for a 50% deduction of the down payment and she claimed the total amount was utilized and therefore she owed no refund. 4. The matter proceeded by way of documents and submissions and thereafter, the Adjudicator rendered the judgment on 9th January 2025. The Adjudicator noted that the written acknowledgment letter 28th April 2022 was not binding as it was executed by non-parties,that is the Appellant’s son and the Respondent. However, she found that an oral contract existed between the parties formed on 7th March 2022 when the initial deposit of Kshs.50,000 was made and this contract was deemed enforceable. 5. The trial court found that the burden of proof was on the Appellant to prove his case, the Respondent admitted to receiving the Kshs.150,000.00, she produced evidence to show she had partially performed the contract and that she incurred expenses of 185 Canadian dollars. The Adjudicator reasoned that the Appellant did not challenge the evidence of the biometric process or rebut the Respondent's claim that the Appellant stopped the process midway. The Adjudicator also found that there was no evidence to prove that the Respondent did not incur the 185 Canadian Dollars expense. 6. That because the Appellant failed to rebut the Respondent's assertions and she proved partial performance and expenses, the Adjudicator concluded the Respondent does not owe the Appellant any monies and the claim was therefore dismissed with costs assessed at Kshs.30,000.00 to the Respondent. 7. The Appellant is dissatisfied with this decision by the subordinate court and now appeals to the court through his memorandum of appeal dated 4th February 2025. He avers that the Adjudicator erred by applying terms from the Acknowledgement dated 28th April 2022, despite having earlier held that those terms were not binding on the parties because they were signed by non-parties. That the Adjudicator ignored the Appellant's further witness statement dated 14th November 2024 and that she wrongly found that the Appellant did not challenge the Respondent's claim that she had paid 185 Canadian Dollars, yet the Appellant stated there was no evidence to support this. 8. The Appellant further states that the Adjudicator held that the Respondent did not owe him any money and that he had stopped the process midway, which the Appellant disputes and that she wrongly considered the Respondent's allegation of incurring expenses as sufficient evidence, even though no receipts were provided. That the Adjudicator erred in finding that the Respondent owed nothing simply because she had partially performed the contract, that she erred by ordering him to pay costs of Kshs.30,000.00 and that she was biased against him. 9. For these reasons, the Appellant seeks that the disputed part of the subordinate court’s judgment be set aside, that this court re-analyzes all evidence and order the Respondent to refund Kshs.110,000.00 with interest from the date of filing the claim and that the costs of the appeal and claim be borne by the Respondent. The appeal has been canvassed by way of written submissions which I have considered together with the record and I will make relevant references to them in my analysis and determination below. **Analysis and Determination** 1. As submitted by the Appellant, I am aware that the court’s jurisdiction is limited by **section 38(1)** of the ***Small Claims Court Act(Chapter 10A of the Laws of Kenya)*** which provides that ‘*A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.’* A court limited to matters of law is not permitted to substitute the Subordinate Court’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the findings are so perverse that no reasonable tribunal would have arrived at them (**Mati v Returning Officer Mwingi North Constituency & 2 others [2018] KECA 700 (KLR)**]. Thus, the duty of this court is to determine whether the subordinate court’s conclusions were supported by the evidence on record and the law. 2. I have gone through the record and the submissions and I am inclined to agree with the Appellant that the Adjudicator committed various errors of the law that warrant this court’s intervention. First, in the judgment, the Adjudicator held that “*I have no evidence to confirm that the Respondent did not incur an expense of 185 Canadian dollars”* and concluded that since the Appellant did not prove the Respondent did not incur the expense, the claim fails and placed the negative burden on the Appellant. 3. Whereas the Adjudicator had sight of **sections 107(1)** **and 108** of the ***Evidence Act (Chapter 80 of the Laws of Kenya)***, which provide for the legal burden of proof, she ignored **section 109** of the same ***Act*** which provides for the evidentiary burden of proof and states as follows:- *“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”* 1. This position was re-affirmed by the Court of Appeal in **Maria Ciabaitaru M’mairanyi & Others v Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280** where it was held that: *“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognises that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”* 1. The burden of proof lies on the one who asserts, not the one who denies. The Respondent is the one who asserted she incurred expenses of 185 Canadian Dollars to justify keeping the Appellant's money. The legal burden rested squarely on the Respondent under **sections 107 and 109** of the ***Evidence Act*** to prove this fact. The Appellant was only required to challenge it, which he did and the Adjudicator's finding that the Appellant's challenge was insufficient because he did not prove a negative is legally incorrect. 2. Second, the Adjudicator was required by law to consider all the evidence presented but a reading of the judgment shows she failed to do so. She concluded that the Appellant did not challenge the Respondent's claim that he stopped the process midway and yet in the Appellant’s Further Statement on 14th November 2024, he explicitly challenged the Respondent's narrative by staying that *"It is the respondent who breached our agreement because she failed to secure travel documents for my son….neither myself nor my son cancelled the application process, therefore we cannot be blamed by the respondent for the failed transaction."* This is direct evidence rebutting the Respondent's claim that the Appellant stopped the process and by stating there was “no evidence”, the Adjudicator failed to consider the evidence that was actually before her, which is a clear error of law. 3. Third, the Adjudicator's conclusion that the Respondent had partially performed the contract and therefore was not liable for a refund is a leap in logic not supported by the evidence. The principle of unjust enrichment presupposes that the defendant has been enriched by the receipt of a benefit, that he has been so enriched at the expense of the Plaintiff and that it would be unjust to allow him to retain the benefit (see **Chase International Investment Corporation and Another v Laxman Keshra and 3 others [1978] KECA 7 (KLR)**]. The principle also dictates that a party who partially performs a contract but fails to complete it is entitled to be paid for the value of the work done, however, this value must be proved. It was not enough for the Respondent to simply say that she incurred expenses without providing proof, especially when the amount of the expenses is disputed. 4. The Adjudicator erred by accepting the Respondent's unsubstantiated claim of expenses without requiring proof like a receipt or bank statement and dhe then used this unproven assertion to find that the entire Kshs 110,000.00 was not owed. This is a finding of fact made without any factual foundation and I am in agreement with the Appellant’s submission that when a court is faced with two probabilities, it must decide based on which is more probable (see **Muthini v Kenya Bus Service Limited & another [1994] KECA 118 (KLR)**. In this case, the probability here is that the Respondent owed a refund as she admitted failure and voluntarily refunded Kshs.40,000.00. 5. Fourth, the Adjudicator found that the written "Acknowledgment Form" and "Terms and Conditions" were not binding because they were signed by non-parties and therefore, the cancellation penalty of 50% was not enforceable. Despite this, she effectively allowed the Respondent to keep the entire balance of Kshs.110,000.00 by accepting her expenses claim which allowed the Respondent to achieve the same outcome as the unenforceable 50% cancellation penalty, but without the proof required by Clause 10 of the contract. 6. I find that the aforementioned errors go to the very heart of the fair determination of the case. It was the Respondent's legal duty to prove her expenses and prove that the Appellant cancelled the contract. She failed to do either and the Adjudicator's errors are, therefore, reviewable by this Court and the appeal is allowed. The evidence demonstrates that the Appellant proved his case on a balance of probabilities and the Respondent owed a refund of the undisputed balance of Kshs.110,000.00, which is consistent with her voluntary part refund. **Conclusion and Disposition** 1. In the upshot, the Appellant’s appeal has merit and is allowed to the extent that the judgment of the subordinate court dated 9th January 2025 is set aside in its entirety and substituted with a judgment against the Respondent for the sum of Kshs.110,000.00 together with interest at court rates from the date of filing suit until payment in full. The Appellant is also awarded costs of the suit and this appeal all assessed at Kshs.50,000.00. **DATED SIGNED AND DELIVERED virtually this 2ND DAY OF SEPTEMBER** **2026** ............................................................................ **J W W MONGARE** **JUDGE** **In the presence of;** 1. N/A for the Appellant 2. N/A for the Respondent 3. Abdisalan- Court Assistant