https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10588

Akoth v Wasonga (Civil Appeal E121 of 2025) [2026] KEHC 10588 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 10588 (KLR) Republic of Kenya In the High Court at Makadara Civil Appeal E121 of 2025 AK Ithuku, J June 26, 2026 Between Willis Ochieng Akoth Appellant and Vincent Opondi Wasonga Respondent Judgment 1.The statement of claim was dated 7.10.2024. The respondent sought recovery of kshs 120,000/ based on a contract to supply containers at Uhuru Business Park by the appellant. He also sought costs of the suit. 2.The appellant filed a response and counterclaim dated 16.10.24. He denied the claim stating that the agreement was for the respondent to paykshs. 160,000 . That the containers were constructed and are ready for delivery once the respondent pays kshs.40,000/ . The appellant sought kshs 40000 plus costs and interest. 3.The matter proceeded viva voce with both parties testifying. On 4.12.2024 the adjudicator. Hon G.C. SEREM, delivered a judgement allowing the claimants claim of tools 120,000/= together with costs while dismissing the counterclaim by the appellant. 4.The appellant being aggrieved filed this appeal vide the memorandum of appeal dated 21. 5. 2025. He raised the following grounds:1.That the learned trial Magistrate erred in law by failing to appreciate that the appellant`s claim was based on a contract and that the respondent had breached the terms of the said contract as indicated in the appellant`s counterclaim thereby arriving at a wrong decision.2.That the learned trial Magistrate erred in law by failing to appreciate that the appellant`s counterclaim was not defended by the respondent and therefore arriving at a wrong decision.3.That the learned trial magistrate erred in law by failing to appreciate that the metal shops complained of in the statement of claim by the respondent herein were existing and to be handed over subject to payment of the balance of the consideratation payable by the respondent and which the respondent failed to pay to take over the same.4.That the learned trial magistrate erred in law by failing to appreciate that the said claim and counterclaim could be referred for alternative dispute resolution mechanism to enable the parties to reconcile their accounts.5.That the learned trial magistrate erred in law and in fact by failing to appreciate that the appellant has proved his counterclaim as against the respondent on a balance of probability as required by the law.6.That the learned trial magistrate erred in law by failing to appreciate that the respondent did not establish his case against the appellant herein as required by the law. 5.The appellant urged this court to allow this appeal by setting aside the impugned judgment and substitute it with a judgment allowing the appellant`s counterclaim while ordering the respondent to pay costs. 6.The appellant was canvassed by way of submissions. 7.The appellant`s jurisdiction of this court is spelt out under section 38 of the Small Claims Court Act and is limited to considering the trials court’s findings on matters of law. In identifying what matters of law are, I am guided by the holding of Lord Denning J in Bracegirdle vs Oxley (2) [1947] 1 All ER 126 at P 130 where he stated:“The question whether a determination by a tribunal is a determination in point of fact or in point of law frequently occurs. On such a question that must always be kept ­­in mind namely the distinction between primary facts and conclusions from those facts. Primary facts are facts which are observed by the witness and proved by testimony. Conclusions from those facts are inferences deducted by a process of reasoning from them. The determination of primary facts is always a question of fact. It is essentially a matter for the tribunal who sees the witnesses to assess their credibility and to decide the primary facts which depend of them. The conclusions drawn from those facts are sometimes conclusions of law. In a case under the Road Traffic Act 1930, Sec 3. 11, the question is whether a speed is dangerous is a question of degree and a conclusion on a question of degree is a conclusion of fact.The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts and that is the case here. The conclusion drawn by this justices from the primary facts was not one that could reasonably be drawn from them.” 8.This is a position that was followed by the court of appeal in Bashir Haji Abdullahi Vs Adan Mohammed Nooru and 3 others (2014) KLR where it was stated:“That reasoning has been adopted in this jurisdiction. In AG VS David Murakaru (1960) EA 484, for instance, Chief Justice Ronald Sinclair sitting with Rudd. J. adverted to the factual foundation of legal questions by stating that an appellate court restricted to determining questions of law may yet quite properly interfere with the conclusions of a lower court if the same is erroneous in point of law. This is the case where the lower court arrives at a conclusion on the primary facts that it could not reasonably come to. Such a conclusion or decision becomes an error in point of law. See also Patel Vs Uganda (1966) EA 263. 9.Dealing with an appeal of the Small Claims Court Justice A.C Mrima in Autogallery (Mombasa) LTD VS Unaitas Sacco Society LTD and another (2025) KEHC 16865 (KLR) had this to say:15. In discharging its appellate role in matters from the Small Claims Court as a special and unique court which is different from the mainstream claims court. It must always be remembered that the focal point of the small claims court is expeditious disposal of cases and that is why the court is not bound by the strict rules of evidence (section 32 of the Small Claims Act) and further the court has power to control its own procedure in determining any claim before it subject to regard to the principles of natural justice. (Section 17 of the Act). The High Court therefore, is duty–bond to assist the Small Claims Court realize it`s said object and it ought to consider appellant jurisdiction through those special lenses.’ 10.From the above issue for determination is whether the claimant proved his case to the required standard. From the record and rival submissions the only issue for determination is whether there was a contract between the two parties and if so whether the same was breached. There is also a preliminary issue about the pleadings. 11.The appellant has submitted that in answer to the Claim he filed a counter claim. That he was claiming for kshs 40,000/= being the balance unpaid. 12.I have looked at the pleadings. It is true that the appellant had claimed kshs 40,000/= in the counter claim. The trial court upon considering the evidence stated;“The parties herein agreed verbally to the purchase of the said containers however each of the parties had different terms herein.” 13.The entire agreement or what the appellant calls arrangement was verbal. The respondent states that they agreed to have the stalls or containers supplied at a cost of kshs 120,000 while the appellant states that he was to charge a total kshs 160,000/=. What is not in dispute is that the appellant received from the respondent a total of kshs 120,000/=. He did not deliver the containers claiming that the purchase price was not paid. Again there is no documentation whatsoever as to the outstanding amount. 14.The sum of kshs 40,000/= is what was mentioned by the appellant on being brought to court. No evidence of such agreement was adduced in defense or during cross examination.Having received the payment and failing to deliver the containers will amount to unjust enrichment on the part of the appellant. I find and agree with the trial court that there was no consensus ad idem in the agreement. The Authority of Carbolic Smoke Ball Company (1893). 1QB 256 applies to this case. 15.In this case the terms of the contract are not clear enough to invite the Court to apply the case of National Bank of Kenya Ltd Vs Pipe Plastic Sam Kolit (K) Ltd and another (2001) KLR where the court firmly established the principle that courts cannot rewrite contracts for the parties. That parties are bound by the terms of agreed contract. 16.It is the type of arrangement where each has their own terms and the only fact that is agreed is that kshs 120,000/= changed hands from the respondent to the appellant. In William Muthee Muthami Vs Bank of Baroda. (2014) eKLR the court of appeal observed that;“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 be a claim against the party in breach.’’ 17.In the absence of evidence of meeting of minds in this case my view is that it became easy for one side to chage terms as the matter progressed. To avoid unjust enrichment on the part of the appellant the only just order is the one made by the trial court. That the sum of kshs 120,000/= paid to the appellant be refunded. 18.In sum I find that the findings and judgment by the trial court is safe. I could not find any reason to disturb it. The appeal is therefore without merit. It is dismissed. 19.The respondent is the successful party. He gets costs of the appeal. It is no so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE 2026 IN VIRTUAL COURT THROUGH TEAMS..................................................JUDGE ALEX ITHUKU HIGH COURT OF KENYA AT MAKADARAIn the presence of:Omollo for the Appellants absent. Date take in court.Ms. Anyal for the RespondentAnn Court Assistant