https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10623

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **CIVIL SMALL CLAIMS APPEAL NO. E123 OF 2025** **SUN DEVELOPERS LTD. ................................................APPELLANT** **VERSUS** **TAMIKA CREDIT LTD. ……...……….…………...……….…..RESPONDENT** **(Being an Appeal from the Judgment of Hon. K. Ireri (Adjudicator) delivered on 23rd May 2025 at Milimani SCCCOMM No. E13090 of 2024)** **JUDGMENT** **Introduction** 1. This appeal arises from the judgment of the Small Claims Court at Milimani (***K. Ireri, Adjudicator***) delivered on 23rd May 2025 in SCCCOMM No. E13090 of 2024. 2. The respondent contracted the appellant for a venue to host a conference on 21st June 2024. The parties engaged in negotiations, arguably agreed on the venue and the respondent deposited Kshs. 84,000/= on 12th June 2024. The venue was booked, and the appellant allegedly confirmed availability of the Ruby Hall on 18th and 19th June 2024. However, on the eve of the conference date, 20th June 2024, the respondent went to the venue for set-up only to be informed that the venue had been booked by another group that had allegedly booked it on 15th June 2024. 3. On the same day, the respondent demanded a full refund. In response, the appellant offered Emerald Hall as a substitute, and if the same was not amenable to the respondent, a refund of the sums paid. **Factual History** 1. Aggrieved, the respondent filed an amended statement of claim dated 13th September 2024 asserting that by virtue of the appellant’s default, it incurred loss, reputational damage and operational disruption. As a result, the respondent sought a refund of Kshs. 150,000/- which constituted a refund of the booking fee (Kshs. 84,000/-), event organization and equipment (Kshs. 37,000/-), preparation of banners (Kshs. 20,000/-) and photography (Kshs. 9,000/-). 2. The appellant filed an amended response dated 11th December 2024 denying the claim. In addition, it averred that while the respondent’s agent was required to identify a suitable venue, she was informed that the venue would be tentatively booked pending signing of the quotation shared on 10th June 2024, a prerequisite to confirming the venue's availability. The respondent acknowledged receipt of the said quotation and advised that it would give feedback upon approval. The said quotation was never signed. 3. Furthermore, pleaded the appellant, on both 18th and 19th June 2024, the respondent’s agent was shown 2 venues (Emerald and Ruby Halls) and they were required to settle on one, which they failed to do, but instead paid Kshs. 84,000/-. It was not until 20th June 2024 that the respondent settled for the Ruby Hall. 4. As for the refund of Kshs. 84,000/-, the appellant contended that it offered to refund the same, but the respondent declined the offer, opting to pursue legal proceedings instead. Consequently, the appellant urged the trial court to dismiss the claim. 5. The trial proceeded by virtue of the documents filed as per Section 30 of the Small Claims Courts Act. 6. By a Judgment delivered on 23rd May 2025, the trial court crystallized one issue for determination: *whether the respondent was entitled to the reliefs sought*. With respect to the quotation, the trial court took the position that upon paying on 12th June 2024, the respondent had an expectation, based on the terms of the quotation, that the venue was booked and confirmed. Further, in the trial court’s evaluation, the quotation had no express requirement for confirmation by signing it. Accordingly, the trial court dismissed the appellant’s claim that the lack of a signature vitiated the contract and instead held that the appellant was liable to the respondent. What is more, had the appellant disclosed the importance of signing the quotation, the respondent would have either proceeded with the transaction or not. 7. As for the reliefs, the learned trial Magistrate held that the respondent was entitled to Kshs. 84,000/- being the down payment for the venue, Kshs. 9,000/- paid to the photographer, Kshs. 20,000/- for banners, Kshs. 22,500/- and Kshs. 6,000/- payments evidenced by receipts, a total of Kshs. 141,500/-; interest on the foregoing from the date of the Judgment and costs assessed at Kshs. 15,000/-. The respondent’s claim for loss of business was dismissed as they did not indicate the nature of value of business expected to result therefrom. **The Appeal** 1. Discontented, the appellant filed a Memorandum of Appeal dated 17th June 2025 raising various grounds of appeal, that the learned trial Magistrate erred: 1. *In failing to appreciate the law of contract as there was no privity of contract between the appellant and the respondent.* 2. *By misinterpreting, misapplying and rewriting a contract between the appellant and the respondent in the lower court by imposing liability upon the appellant.* 3. *In finding that the appellant was indebted to the respondent to a tune of Kshs. 141,500/-.* 4. *In failing to analyze the evidence presented by the respondent in its entirety in its response and the submissions and in essence arriving at the wrong conclusion.* 5. *By failing to consider the evidence on record particularly that there was no provision in the quotation requiring the respondent to sign the document as a precondition for confirmation of booking.* 6. *By failing to find that the respondent was unable to discharge the burden of proving the expenses incurred including booking fees, marketing, promotional materials and coordinated fees.* 7. *Misdirected herself, misapprehended and misconstrued the legal principles in the case before her and by reason thereof came to a wrong conclusion.* 2. As such, the appellant prayed that the appeal be allowed, the impugned Judgment be set aside and substituted with appropriate orders, and costs of the appeal. **The Appellant’s Submissions** 1. In its submissions dated 5th December 2025, the appellant crystallized several issues for determination: On the issue of *whether the respondent proved its case on a balance of probabilities*, the appellant submitted that the quotation had an express requirement that a signed and stamped acceptance of the group accommodation contract signaled confirmation of the booking. In its view, the quotation dated 10th June 2024 was the written contract between the parties. Paying Kshs. 84,000/- constituted a partial fulfilment of the quotation and therefore no damages could attach to the appellant. By holding otherwise, contended the appellant, the trial court rewrote the contract between the parties. 2. In essence, the appellant, relying on ***Waithaka vs Wanyoike (Civil Appeal E098 of 2023) [2024] KEHC 14060 (KLR)***, urged that there was no meeting of the minds between the parties. Besides, the respondent’s claim that the booking was confirmed during its visit on 18th June 2024 was hearsay. 3. On *whether the respondent is entitled to the damages as awarded by the trial court*, the appellant posited that the respondent failed to adduce any invoices that would establish any nexus between the attached M-Pesa payments and the expenses incurred. In this regard, they rely on ***Zacharia Waweru Thumbu vs Samuel Njoroge Thuku (2006) KEHC 2976 (KLR)*** for the proposition that special damages must be pleaded and proved. **The Respondent’s Submissions** 1. Vide its undated submissions; the respondent crystallized two issues for determination. As to *whether the learned Magistrate erred in law and fact*, the respondent is of the view that the trial court properly considered and evaluated the evidence on record and arrived at the correct finding. Further, the appellant’s Head of Sales admitted that the double booking was in error and offered an alternative venue or refund, thereby establishing breach and liability. 2. As to *whether the appellant had met the threshold for appellate interference*, the respondent averred that the appellant, having failed to demonstrate any plausible reason warranting such interference, could not rely on this head. 3. As such, the respondent submitted that the appeal ought to be dismissed with costs. **ANALYSIS AND DETERMINATION** 1. Section 38 of the Small Claims Courts Act confines this Court’s appellate jurisdiction to matters of law only. The effect of this provision is to bar this Court from reassessing factual matters or substituting factual conclusions merely because it would have arrived at a different outcome. 2. Having so reiterated, and having carefully considered the appeal, rival submissions and the applicable statutory and jurisprudential framework, I am of the considered view that the appeal turns on two issues: *whether there existed a contract between the parties, and if so, what were the terms thereof; and what reliefs should issue*. 3. It is not disputed that the respondent approached the appellant for provision of a venue to hold a one-day conference. The appellant showed several venues to the respondent before issuing a quotation to the respondent upon which it deposited Kshs. 84,000/- believing the same to be enough to book the venue. However, the appellant, on its part, argued that beyond making the deposit, the respondent was required to sign the quotation to cement the booking. 4. To my mind, although the parties did not execute a formal written agreement, the evidence demonstrates that they nevertheless concluded a binding contract. The quotation, the email correspondence exchanged during the negotiations, and the respondent's part payment constitute contemporaneous documentary evidence of the terms upon which the parties contracted. To the extent that those documents do not embody the entire agreement, the contract falls to be regarded as partly oral and partly in writing. The Court is therefore entitled to construe the parties' agreement by reading the oral consensus alongside the quotation, email correspondence and other contemporaneous documents in order to ascertain the objective intention of the parties. 5. I find the appellant’s case implausible that it gave the respondent the option of between two venues and the respondent was required to confirm. The evidence indicates that the appellant took the respondent’s agent on a tour of the available rooms and subsequently generated a quotation. What is more, in the communication exchanged between the parties, there is no mention of the respondent being given the option of selecting between two venues. Furthermore, while the appellant pleaded that the venue was booked after the down payment was made, by their very conduct, they accepted the deposit and made no follow-up on the signing of the quotation. Acceptance and retention of the deposit without protest is capable of amounting to a waiver for the requirement for a signature. They cannot be heard to claim that absent the signed quotation, there existed no contract. 6. Even on the appellant’s own account, the quotation indicated that the room type was marked TBC (To Be Confirmed). By their own admission, the quotation served the purpose of tentatively booking a venue. It is more consistent with the evidence that, at any given time, only one venue was intended to be booked, unless otherwise expressly communicated. 7. Moreover, the same quotation, under billing and payments, provides that once a 50% advance payment is made to confirm the business, the venue is blocked on a confirmed basis. Reproduced, it reads: ***In order to block your room requirement & hold your Group on a “Confirmed Basis”, we would request you to kindly arrange for advance payment as follows:*** * ***50% down payment or LPO to confirm the business.*** * ***50% balance payment to be cleared prior to arrival.*** 1. To my mind, this supports the inference that payment of a deposit operated to confirm the booking of the venue, just as the appellant argues that, absent execution of the quotation, no binding contract arose. In so finding, I find useful guidance in ***National Bank of Kenya Ltd. vs Pipe Plastic Sankolit (K) Ltd. (2002) 2 E.A. 503 (2011) eKLR*** that my duty is not to rewrite the parties’ contract, but give effect to the terms found in the contract. 2. Furthermore, Section 119 of the Evidence Act provides that this Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and private and public business, in relation to the facts of the particular case. 3. In the circumstances, I uphold the trial court’s finding that there existed a contract between the parties on the terms herein established. Accordingly, the trial court did not rewrite the terms of the contract as pleaded by the appellant. 4. As *to the reliefs*, the trial court awarded the respondent Kshs. 141,500/- made up as established elsewhere in this Judgment. The appellant challenged the same on the basis that the respondent did not establish the nexus between the contract and the amounts paid to Gilbert Kimani, I&M Bank and one Dickson Philip Ochieng’. 5. It is a maxim that recovery of damages following breach of contract must be those arising either naturally or directly from the breach of contract or those within the contemplation of the parties at the time of contracting and a probable result of such breach. ***See Hadley vs Baxendale (1854) 9 Exch 341***. The Court of Appeal in ***Abson Motors Ltd. vs Dominic B. Onyango Konditi [2018] KECA 161 (KLR)*** put it more succinctly: 1. ***The damages must therefore flow naturally from the breach of contract.*** 2. ***The damages, although difficult to predict in the ordinary case, were communicated to the defendant.*** 6. Further, the Court of Appeal also held that: ***“30…. As stated by Chesoni, J (as he then was) in the case of Ouma v Nairobi City Council (1976) KLR 304:-*** ***“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.”*** 1. Applying the foregoing, I am of the considered view that the respondent did not plead the losses associated with the banners, photography and event organization equipment with sufficient particularity to warrant an award of the same. The said expenses were incurred in preparation for the event itself and were not contingent upon the performance of the contract by the appellant. Indeed, the respondent would have incurred these costs irrespective of the venue ultimately secured, whether with the appellant or otherwise. 2. In the circumstances, such expenses cannot be said to flow naturally from the breach, nor were they within the contemplation of the parties as recoverable in the event of breach. In the circumstances, the trial court erred in making awards under these heads. 3. In the end, I make the following orders: 4. ***The appeal is partially successful.*** 5. ***The trial court’s judgment is set aside to the extent that the appellant shall pay the respondent Kshs. 84,000/- being the deposit for the venue together with costs as assessed by the trial court.*** 6. ***The respondent shall have the costs of this appeal.*** It is so ordered. ***Dated, signed and delivered at Nairobi this 16th day of July 2026.*** **DAVID MBURU** **JUDGE** **In the presence of:** **Mr. for the Appellant** **Mr. for the Respondent** **Court Assistant - Kalondu**