[2023] KEHC 23667 (KLR)

Wachira v Njue (Civil Appeal E007 of 2022) [2023] KEHC 23667 (KLR) (18 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23667 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E007 of 2022

GMA Dulu, J

October 18, 2023

Between

Paul Migwi Wachira

Appellant

and

Brenda Mwihaki Njue

Respondent

(From the judgment delivered by Hon. T. N. Sinkiyian (SRM) at Voi Law Court on 23rd February 2022 in Civil Case No. E07 of 2020)

Judgment

1. In a judgment delivered on 23rd February 2022, the learned Senior Resident Magistrate found in favour of the respondent who was the plaintiff in the trial court and concluded as follows:-63. The court accordingly enters judgment in favour of the plaintiff against the defendant and orders that the defendant shall pay the plaintiff a refund Kshs. 400,000/= and shall also pay Kshs. 250,000/= being unpaid monthly profits. The said amount shall earn interest at court rates from October 2019 until paid in full.64. The defendant shall bear plaintiff’s costs of suit with interest at court rates from date of judgment until paid in full. Orders accordingly.”

2. Dissatisfied with the above decision of the trial court, the appellant who was the defendant in the trial court has come to this court on appeal through Counsel J. M. Muthami & Company on the following grounds : –1. The trial Magistrate erred in law and fact in finding that the entire transaction was not a joint venture.2. The trial Magistrate erred in law and fact in finding that in finding that the appellant evidence was contradictory.3. The trial Magistrate erred in law and fact in finding that the appellant made mere allegations that due to some facts beyond his control the contract could not be honoured.4. The trial Magistrate erred in law and fact in finding that the expelled profit in the contract was not mandatory to be pleaded specifically.

3. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by J. M. Muthami & Company Advocates for the appellant, and the submissions filed by Chimera, Kamotho & Company Advocates LLP for the respondent.

4. This being a first appeal, I have to start by reminding myself that I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences see Selle =Versus= Associated Boat Company Ltd (1968) EA 123.

5. At the trial, the respondent testified alone as PW1, and did not call any additional witness. She adopted her witness statement and a written agreement entered into between her and the appellant. I have seen and perused both the witness statement and the agreement.

6. On his part, the appellant also testified alone as DW1, and did not call any additional witness. He adopted his witness statement and also acknowledged the agreement referred to by PW1. I have seen and perused the witness statement of the appellant.

7. The issue before the trial court, in my view, was primarily the interpretation of the written contract or agreement, and whether it was complied with, and if not what were the consequences?

8. Though the appellant states on appeal that the respondent should have specifically pleaded the figure of Kshs. 90,000/= in the plaint, in my view that is not correct. That amount was actually specifically pleaded under paragraph 4 and 5 of the plaint.

9. In addition, under paragraph 8 of the plaint and the concluding prayers in the plaint dated 22nd September 2020 the respondent asked for judgment and claimed the following:-i.A declaration that the defendant is in breach of contract made and dated 1st July 2020. ii.A refund of the debt of Kenya Shillings Four Hundred Thousand (Kshs. 400,000/=), together with the interest thereon.iii.Costs and interest.iv.Any other relief deemed fit and just.

10. Thus it cannot be said that the agreed profit was not specifically pleaded. The question that begged for an answer however, was whether the plea for recovery of profit was proved.

11. In determining this issue in my view, this appellate court has to bear in mind that the burden was on the respondent, as plaintiff, to prove the claim for profit in accordance with the provisions of Section 107 of the Evidence Act (Cap.80). I have also to bear in mind that the standard of proof applicable was on the balance of probabilities, this being a civil case.

12. I note that in his statement of defence and in his evidence in court, the appellant did not challenge the contents of the agreement. Having perused and considered its meaning, in my view, the agreement provided for profit for the business investment, of Kshs. 90,000/= per month. The same amount is later in the same agreement described as money (dividend), and was to be paid on 5th day of each month.

13. Considering the totality of the very short Business Agreement entered into between the parties, which was not even witnessed by a third party but said to commence on 1st July 2019, and which is not denied by the appellant, the plain meaning of the document is that the investment in favour of the respondent was the Kshs. 400,000/= of Miss Brenda M. Njue, and the profit or money or dividend of Kshs. 90,000/= per month to be paid to her.

14. Thus though the appellant’s counsel contends on appeal that the trial Magistrate shifted the burden of proof to the appellant, I find nothing in the judgment to support that contention, as from the documents and evidence on record, the agreement between the parties was in clear terms.

15. I note further that in the submissions before the trial court, the appellant’s counsel only raised two issues for determination. The first was whether there was any breach of the agreement entered into on 1st July 2019 by the defendant. The second issue was whether the plaintiff was entitled to claim Kshs. 400,000/= together with the agreed monthly interest of Kshs. 90,000/= thereon. There was no issue suggesting a dispute on the monthly amount of Kshs. 90,000/=

16. Even on appeal, there is no contest in the submissions of counsel on the contents of the agreement, but merely an explanation of intervening circumstances like a crisis in Hong Kong that affected the gemstones business. Thus in my view, the profit was properly pleaded and breach of the signed agreement was proved.

17. The next issue is whether the Magistrate was correct in making the award she made. In this regard, the respondent testified in evidence that she was paid Kshs. 20,000/= by the appellant. The trial court having found that the agreement was effective for three (3) months July, August and September 2019, which is evidenced in the agreement which I have perused in which it is provided that the contract was for three (3) months renewable and the trial court having deducted Kshs. 20,000/= from the award, I find that the trial court did not erred in the award.

18. Consequently, I find that this appeal is unmerited. I dismiss the appeal with costs payable to the respondent by the appellant. Right of appeal 30 days.

DATED, SIGNED AND DELIVERED THIS 18TH DAY OF OCTOBER 2023 VIRTUALLY AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantMs. Kerubo holding brief for Mr. Muthami for appellantMs. Ogoti for respondent