(Being an Appeal from the Judgment of the Small Claims Court of Kenya at Nairobi delivered by the Hon. Resident Magistrate J. K Tawai, on the 11th December, 2023 in Nairobi SCC COMM NO E8373 OF 2023)
1. This appeal arises from a judgment and decree entered in Nairobi SCC COMM NO E8373 OF 2023. In the said suit, the Appellant was sued by the Respondent for breach of contract for transportation of bags of sorghum.
2. The genesis of this dispute, as stated in the statement of claim, is that the parties entered into a transport agreement for the delivery of 560 bags of sorghum. The Respondent leased a shipping container from Cosco Shipping Lines (Kenya) Limited at a rate of Kshs. 7,000/- per day and was responsible for ensuring the transportation of the sorghum. However, that the Respondent failed to collect the sorghum and did not inform the Claimant of the delivery destination. As a result, the Claimant retained the sorghum in his motor vehicle, Registration Number KCZ 823F, Trailer No. ZC 9529. Consequently, the Respondent claimed a total sum of Kshs. 414,000/-, comprising transportation charges of Kshs. 120,000/-, penalties from Cosco Shipping Lines (Kenya) Ltd amounting to Kshs. 30,000/-, and default charges of Kshs. 264,000/-, calculated at Kshs. 11,000/- per day for 24 days.
3. In a response dated 23rd November 2023 the appellant responded to the claim denying all the averments. However, the trial court noted that it did not consider them since they were not paid for as was shown in the court tracking system.
4. On 11th December 2023, the trial Magistrate delivered her judgment, in favor of the Respondent for the sum of Kshs. 414,000/- and Kshs. 11,000/- per day from the date of filing the suit. Additionally, the court awarded the Respondent the costs of storing the sorghum as agreed by the parties on 17th November 2023, interest thereon, and the costs of the claim. In arriving at this decision, the trial court set out three issues for determination namely; whether there was a valid agreement between the parties herein; whether the respondent breached the said agreement and whether the claimant was entitled to the relief sought.
5. On the first issue, the court held that the contract was for transportation of goods from Uganda to Kenya for a consideration and failure to pay amounted to breach. Further, that the appellant herein had not denied that the respondent herein transported the goods as contracted, his claim was that the respondent herein contaminated the goods while in transit and the buyer declined them. On the second issue, the court observed that even though the claimant had not produced receipts to quantify the claims pleaded, he incurred losses by virtue of the fact he performed his end of the bargain and transported the goods. The trial court held that the claimant had proved its case on a balance of probabilities and granted the reliefs sought.
6. The Appellant, aggrieved with the entire judgment, lodged this appeal on 10th January 2024 setting out the following grounds that the Learned Magistrate erred in fact and in law in entering judgment in favor of the Respondent against the Appellant without having due regard to the Appellant’s submissions to the court; erred in law by entering judgment in favour of the Respondent against the Appellant without having due regard to the fact that the special damages were not pleaded and proved against the well laid down principle of law; by failing to find that the Respondent had failed to discharge the burden of proof; and by entering judgment and giving unenforceable orders.
7. The Appellant prayed that the appeal be allowed with costs and, that the judgment delivered on 11th December 2023 and consequential orders be set aside and the claim E8373 of 2023 be dismissed with costs to the Appellant.
8. The appeal was canvassed by way of written submissions. It is only the Appellant that filed his submissions dated 4th October 2024.
Appellant’s submissions
9. The Appellant identified three issues for determination. First, whether the Respondent proved his case for special damages. The second is whether the Respondent can be compelled to pay for storage charges and thirdly, whether the Respondent can be compelled to pay up the additional storage charges from 17th November 2023.
10. On the first issue, it was submitted that the claim for transportation costs amounting to Kshs. 120,000/- was not proven and that the figure appeared to have been arbitrarily determined. In support of this argument, reliance was placed on the cases of Hashim Mohammed Said & Another v. Lawrence Kibor Tuwei [2018] eKLR and Swalleh C. Kariuki & Another v. Violet Owiso Okuyu [2021] eKLR, which emphasize that special damages must be strictly proven. Consequently, it was submitted that the sum of Kshs. 120,000/- is not payable.
11. The second issue was whether the Appellant could be compelled to pay storage charges amounting to Kshs. 264,000/-, allegedly accrued from 2nd October 2023. The Appellant argued that according to a contract signed between his company, Uzuzi Farmcare Limited, and EAGC for transportation services, his obligation was strictly limited to transporting the sorghum, as reflected in the contract's heading. That a witness from EAGC testified, confirming that the consignment was solely for transportation by the Appellant and did not belong to him. The transport contract explicitly stated in its first paragraph that the sorghum was to be delivered from Acila to Winnie’s Pure Health. He submitted contract was signed by the Appellant in his capacity as a transporter and by Gerald Masila as the Executive Director of EAGC.
12. The Appellant also referred to a delivery note issued in the name of Acila Enterprise, which specified Winnie’s Pure Health as the delivery destination. Additionally, he submitted that the delivery note recorded the registration number of his vehicle and contained the remark “good,” indicating that the sorghum was in an acceptable condition at the time of packaging.
13. The Appellant argued that the documented evidence was irrefutable, particularly given that the Respondent was unaware of the intended recipient of the delivery. He submitted that he had proven his case to the required standard, whereas the Respondent failed to substantiate the special damages claimed. Additionally, the Appellant contended that the Respondent improperly sought to enforce performance of his contract with Cosco Shipping Line through the Appellant, despite the Appellant not being a party to that contract. In support of this argument, he cited the case of Savings & Loan (K) Limited v. Kanyenje Karangaita Gakombe & Another.
14. The final issue was whether the Respondent could be compelled to pay additional charges from 17th November 2023. The Appellant argued that the Respondent's request for these additional charges was ambiguous and unenforceable due to its indefinite nature, which could lead to perpetual litigation.
15. He further submitted that it was unclear to whom the court should direct the Appellant to make payment, particularly since the intended beneficiary of the prayer was not a party to the suit.
16. In conclusion, the Appellant submitted that the court issued an order which cannot be enforced and therefore should be dismissed. He further submitted that the claim in the trial court be dismissed in its entirety.
Analysis and Determination
17. To begin with, the duty of this court as the appellate court is squarely regulated under Section 38 of the Small Claims Court Act which restricts the jurisdiction of the High Court on appeals from the Small Claims Court to matters of law only. It provides that:
“38. (1) A person aggrieved by the decision or an order Appeals. of the Court may appeal against that decision or order to the High Court on matters of law. (2) An appeal from any decision or order referred to in subsection (1) shall be final.”
18. What constitutes, points of law, has been settled in the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR, where the court stated as follows: -
“This is a second appeal. I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. (See: Stanley N. Muriithi & Another versus Bernard Munene Ithiga [2016] eKLR).
19. Having gone through the Memorandum of Appeal and the grounds set out therein, I note that the Appellant raises issues of both law and fact. The first ground of appeal is premised on the ground that the learned adjudicator erred in both the law and fact. However, despite the remaining grounds being framed as “The Learned Magistrate erred in law…”, they primarily invite the court to reassess issues of fact. Furthermore, the Appellant’s submissions do not clarify the specific legal issues being appealed.
20. An evaluation of the submission shows that the appellant is calling upon this court to re-evaluate and re-assess the trial evidence and submissions placed before the trial court and come up with contrary findings. This is clearly against the provisions of Section 38 of the Small Claims Court Act.
21. The grounds of appeal demonstrate an attempt at legal ingenuity seeking to disguise purely factual issues in the guise of legal arguments to circumvent the restrictions imposed by Section 38 of the Small Claims Court Act.
22. The issues raised contest the lower court’s inferences and decisions on facts rather than exclusively on points of law. Ideally, the Appellant is disputing the trial court’s decision on the contents of the agreement that the parties had. The foregoing is on purely factual and discretionary issues that are dependent on material evidence. The claim was largely founded on breach of contract. The contention is on the nature and extent of the contract, including privity. In addition, the claim is for a liquidated sum. The Court need not overemphasize that the principles on the need to plead and prove special damages are well settled and continue to be adhered to. As these remain factual contests dependent on the peculiar circumstances obtaining, it is not for the appellate court to wade into the contest without being pointed to specific points of law on appeal.
23. Further, in any event noting that the trial court in its judgment noted that it did not consider the appellant’s response due to non-payment of court fees, it is not open to the appellant to make the same submissions before us in the absence of addressing the admissibility of its submissions. Moreover, the adjudicator having found that this claim is one of breach of a contract, there remains recourse under the contract to the parties for the respective obligations. As the respondent did not participate in the appeal, I do not see any reason to award costs in his favour.
24. Consequently, based on the above this court makes the following orders: -
i. The appeal is dismissed and the Judgment and Decree of the Honourable J.K. Tawai (Ms.) (RM) made on 11/12/2023 in Nairobi SCCOMM No. E8373 of 2023 is upheld.
ii. Each party to bear their own costs.
Orders accordingly