1. This is a first appeal against the judgment and decree of the Small Claims Court at Kitui (Hon. O. J. Ogutu, Adjudicator), delivered on 8th August 2024 in Kitui SCC No. SCCCOMM/E090 of 2024, in which the claim of Augustus Ndolo Nganda (“the Appellant”) against Titus Kale Kyaima (“the 1st Respondent”) and Ezekiel Baraka Charo (“the 2nd Respondent”, joined at trial as a third party) was dismissed in its entirety, with each party left to bear its own costs.
2. Dissatisfied with that outcome, the Appellant lodged a Memorandum of Appeal dated 30th August 2024, later amended on 3rd March 2026, setting out twelve grounds of appeal. He prays that the trial court's judgment be set aside, reviewed and/or varied, that the appeal be allowed, and that he be awarded the costs of the appeal and of the suit below.
BACKGROUND
3. The Appellant's case before the trial court was that, on various dates in 2021, commencing on or about 22nd February 2021, he transmitted to the 1st Respondent, by M-Pesa, sums totalling Kshs. 401,800/=. He further alleged that the 1st Respondent approached him and represented that he could facilitate the recruitment of the Appellant's son into the National Police Service, and that the money was required to meet the costs of the recruitment exercise, including uniforms, transport, medical examination, and accommodation.
4. The 1st Respondent did not deny receiving money from the Appellant. His case, both in disciplinary proceedings before the Teachers Service Commission (his employer, as he was a serving teacher) and before the trial court, was that he received the funds on behalf of the 2nd Respondent and forwarded them to him, whom he says had represented to him that he could secure the employment in question.
5. Upon the Appellant's complaint, the 1st Respondent was subjected to disciplinary proceedings by the Teachers Service Commission, found culpable of misconduct in the nature of obtaining money by false pretences, and dismissed from the teaching service.
6. The 2 nd Respondent was joined to the proceedings as a third party at the 1st Respondent's request. He denied ever meeting or transacting with the Appellant, receiving any money from the Appellant or the 1st Respondent for the alleged purpose, or promising to secure employment for the Appellant's son. It is common ground that the 2nd Respondent is the subject of pending criminal proceedings in Kitui Criminal Case No. MCCR E452 of 2021, Republic v Ezekiel Baraka Charo, in which he is charged with obtaining money by false pretences arising from these same events; that trial had, as at the hearing of this appeal, not been concluded.
7. At the hearing before the trial court, the Appellant, the 1st Respondent and the 2nd Respondent all gave evidence. The Appellant produced an M-Pesa statement, which the trial court admitted in evidence, showing transfers to the 1st Respondent. The 1st Respondent, for his part, admitted receiving money from the Appellant, though the figures he gave in his own testimony (variously put at Kshs. 201,000/= and Kshs. 200,000/= in different parts of his evidence) do not entirely reconcile with the pleaded and exhibited sum of Kshs. 401,800/=. He maintained that he forwarded what he received to the 2nd Respondent, but tendered no documentary or other corroborating evidence of having done so.
8. The learned trial Adjudicator, having set out the pleadings and evidence, did not in the end resolve the issues he had himself framed for determination, namely whether there was a legally binding agreement between the parties, whether the parties discharged their obligations under it, and whether the Appellant was entitled to recover the sum claimed. Instead, having concluded that the arrangement between the Appellant and the 1st Respondent was, in substance, one for the giving of a bribe to secure public employment for the Appellant's son, he held that the arrangement offended section 5 of the Bribery Act, 2016, was illegal and void ab initio, and was for that reason unenforceable.
9. Relying on the Court of Appeal's decision in D. Njogu & Company Advocates v National Bank of Kenya Limited [2016] eKLR , the English decision in David Taylor & Son v Barnett Trading Co [1953] 1 WLR , and the Court of Appeal's decision in Safari Inns Ltd & 2 Others v Deutsche Investitions- und Entwicklungsgesellschaft ('DEG') & Others [2011] eKLR (citing Nathalal Raghavji Lakhani v H. J. Vaitha & Another [1965] EA 452 ), the trial court dismissed the entire suit on the footing that a party to an illegal transaction cannot obtain the assistance of a court of equity, and made no order as to costs.
THE GROUNDS OF APPEAL
10. The Appellant's amended Memorandum of Appeal raises twelve grounds, which may fairly be grouped as follows:
a. that the trial court erred in fact and in law in dismissing the claim against the weight of the evidence, and in failing to consider the pleadings and evidence properly before it (grounds 1, 2, 8, 9 and 10);
b. that the trial court erred in law in characterising the arrangement between the parties as an illegal or corrupt scheme rather than a valid oral contract induced and breached by the 1st Respondent (grounds 3, 4, 5, 6, 7 and 11); and
c. that the trial court erred in law in failing to hold that the Appellant had discharged the burden of proof placed upon him by the Evidence Act (ground 12).
THE SUBMISSIONS
The Appellant's submissions
11. The Appellant submitted that he tendered clear, unchallenged evidence establishing his claim: that the 1st Respondent admitted receiving the sums transferred to him; that the 1st Respondent, not the Appellant, initiated the arrangement and represented that he could facilitate the recruitment; and that the Appellant, an unsophisticated party, harboured no corrupt intent but was misled and defrauded by the 1st Respondent.
12. He placed considerable weight on the outcome of the Teachers Service Commission's disciplinary process, in which the 1st Respondent was found to have obtained money from the Appellant by false pretences and was dismissed from service, and on the pending prosecution of the 2nd Respondent for the same conduct.
13. It was submitted that these facts are inconsistent with the trial court's characterisation of the Appellant as a briber and are instead consistent with the Appellant being the victim of a fraudulent scheme perpetrated by the 1st and 2nd Respondents. Counsel urges that the finding of illegality was not grounded in any evidence tendered by either Respondent, and that the appeal should be allowed, the judgment set aside, and the Appellant's claim allowed in full, with costs.
The 1st Respondent's submissions
14. The 1st Respondent submitted that the essential elements of a binding contract, in particular capacity and a lawful intention to be bound, are absent, because the arrangement pleaded by the Appellant, on its own terms, was an arrangement to pay money to secure a public appointment. It is submitted that this Court is, in effect, being asked to sanitise a corrupt scheme, an invitation counsel urges the Court to decline.
15. Further reliance was placed on the equitable maxim that he who comes to equity must come with clean hands. It is submitted that the Appellant's proper remedy, if any, lies in the outcome of the pending criminal trial against the 2nd Respondent in Kitui MCCR E452 of 2021. Counsel prays that the appeal be dismissed with costs to the 1st Respondent.
16. The 2nd Respondent
17. The 2 nd Respondent did not file submissions on this appeal, as was also the position at trial.
E. ANALYSIS AND DETERMINATION
The scope of this appeal
18. This being an Appeal from the Small Claims Court, the duty of the court is circumscribed under section 38 of the Small Claims Court Act, which provides as follows:
(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.
19. This provision has consistently, and in my view correctly, been construed as confining this Court’s appellate jurisdiction in appeals of this kind to questions of law, not to questions of fact simpliciter, save where a finding of fact is so unsupported by the evidence as to disclose an error of law. See, by analogy, the treatment of second appeals in Stanley N Muriithi & another v Bernard Munene Ithiga[2016] KECA 821 (KLR) , where the Court of Appeal [ WAKI, KARANJA & KIAGE, JJ.A) ] stated as follows:
“We have anxiously considered the record, the grounds in support of the appeal, the rival submissions of counsel, and the law. We are conscious of our limited jurisdiction when dealing with a second appeal. Our reading of Section 72(1) of the Civil Procedure Act, Chapter 21, Laws of Kenya, which provides for the circumstances when a second appeal shall lie from the appellate decrees of the High Court, indicates that the appeal must be on matters of law.
In Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR (Civil Appeal No. 127 of 2007) Onyango Otieno, J.A. put it succinctly in the following words:
“In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two 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.”
We hasten to observe, however, that failure on the part of the first appellate court to re-evaluate the evidence tendered before the trial court and as a result, arriving at the wrong conclusion is a point of law. We note that indeed, learned counsel for the appellants did submit that the learned Judge failed to consider most of the documents that were produced in evidence, and therefore arrived at the wrong conclusion.”
20. Further, in Mwita v Woodventure (K) Limited & another [2022] KECA 628 (KLR) , the Court of Appeal [PO Kiage, J Mohammed & M Ngugi, JJA ]held as follows in regard to its duty as a second appellate court:
“12. This is a second appeal. Accordingly, the jurisdiction of this Court is limited to consideration of matters of law. As was held in the case of Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR , on a second appeal, the Court confines itself to matters of law only, unless it is shown that the court below considered matters it should not have considered, or failed to consider matters it should have considered, or looking at the entire decision, it is perverse. See also Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR in which it was held that:
“In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two 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.”
13.A cursory glance at the grounds of appeal in the appellant’s memorandum of appeal shows that they relate primarily to questions of fact. The appellant was aggrieved by the finding of the first appellate court that he was not entitled to security costs. The third ground, which raises the question whether the interest on the payment made to the 1 st respondent should run from the date of filing suit, not from the date of the hire purchase agreement between the appellant and the 1 st respondent, is a matter of law.”
21. The appeal raises only one question of law: whether, on the evidence and pleadings before the court, they were entitled to the money paid to the first respondent. However, an Appeal of this nature concerns matters of law. It may be a pure matter of law or a mixed matter of law, but it remains a matter of law. An appeal on matters of law is akin to a second appeal to the Court of Appeal. The duty of a second Appellate Court was set out in the case of Otieno, Ragot & Company Advocates vs National Bank of Kenya Limited [2020] eKLR :
“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 ).”
22. Then what constitutes a point of law? In Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others (2014) eKLR , the court stated as follows:
“4. Although the phrase ‘a matter of law’ has not been defined by the Elections Act, it has been held in Timamy Issa Abdalla Vs Swaleh Salim Swaleh Imu & 3 Others , Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, Makhandia & Sichale, JJA) of 13.01.2014 that a decision is erroneous in law if it is one to which no court could reasonably come to, citing Bracegirdle vs Oxney (1947) 1 All ER 126. See also Khatib Abdalla Mwashetani Vs Gedion Mwangangi Wambua & 3 Others , Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, M'inoti & Sichale, JJA) of 23.01.2014 following AG vs David Marakaru (1960) EA 484.”
23. Grounds 1, 2, 8, 9 and 10 of the Memorandum of Appeal, which complain that the trial court dismissed the claim “against the weight of the evidence”, failed to “consider the pleadings”, or failed to find that the Appellant had proved his case “on a balance of probability”, are, on their face, complaints of fact falling outside section 38(1). I have nonetheless examined the record to satisfy myself that the trial court's primary findings on the underlying transaction – namely that the Appellant paid the 1st Respondent Kshs. 401,800/=, in instalments, for the stated purpose of facilitating the recruitment of his son into the National Police Service – are not seriously disputed by any party and are amply supported by the evidence, including the 1st Respondent's own admissions and the M-Pesa statement produced at trial. I do not find it necessary, or within my proper remit under section 38(1), to disturb those primary findings of fact. What is properly before me, and to which I now turn, is the legal characterisation the trial court placed upon those facts and the legal consequence it drew from that characterisation, namely grounds 3 to 7 and 11 of the appeal.
(b) Did the trial court err in law in holding the arrangement illegal and unenforceable?
24. The trial court's dismissal of the suit rested entirely on its finding that the arrangement between the Appellant and the 1st Respondent constituted the offence of giving a bribe under section 5 of the anti-Bribery Act, 2016, and was accordingly void and unenforceable in its entirety. Section 5(1) of the Act provides that a person commits the offence of giving a bribe:
1. A person commits the offence of giving a bribe if the person offers, promises or gives a financial or other advantage to another person, if the person offering, promising or giving knows or believes the acceptance of the financial or other advantage would itself constitute the improper performance of a relevant function or activity.
2. Subject to subsection (1), it shall not matter whether the person to whom the advantage is offered, promised or given is the same person as the person who is to perform, or has performed, the function or activity concerned, or whether the advantage is offered, promised or given by a person directly or through a third party .
25. In turn, section 7 of the said Act defines “relevant function or activity” as follows:
(1) For the purposes of this Act, a function or activity shall be construed to be a relevant function or activity if-
(a) it includes—(i)any function of a public nature;(ii)any function carried out by a State officer or public officer, pursuant to his or her duties;(iii)any function carried out by a foreign public official, pursuant to his or her duties;(iv)any activity connected with a business;(v)any activity performed in the course of a person's employment; or(vi)any activity performed by or on behalf of a body of persons whether corporate or otherwise;
(b) it meets one or more of the following conditions—(i)that the person performing the function or activity is expected to perform it in good faith;(ii)that the person performing the function or activity is expected to perform it impartially; or(iii)that the person performing the function or activity is in a position of trust by virtue of performing it
(2) For purpose of this section, a function or activity is a relevant function or activity even if it is performed in a county or territory outside Kenya.
26. Therefore, the functions must include, among other things, a function of a public nature, a function carried out by a state or public officer pursuant to his duties, or an activity connected with a person's business or employment, performed by a person who is expected to act in good faith or impartially, or who occupies a position of trust by virtue of performing it.
27. On the record before the trial court, the 1st Respondent was a primary school teacher employed by the Teachers Service Commission. He held no office, appointment or function, public or private, connected with recruitment into the National Police Service, nor is there any suggestion that he purported to act, or was believed by the Appellant to be acting, pursuant to any such office.
28. On the contrary, the undisputed evidence, including the findings of the Teachers Service Commission's own disciplinary process, shows that the 1 st Respondent held himself out to the Appellant as able to facilitate recruitment, despite having no genuine capacity, authority or connection to do so. For that reason, he was found guilty of obtaining money by false pretences and dismissed from the teaching service. That is the language and hallmark of the offence of obtaining money by false pretences under the Penal Code (Cap. 63), not of bribery under section 5 of the Bribery Act, which presupposes payment to a person who, in truth, occupies a relevant position of trust, good faith or impartiality capable of being improperly exercised.
29. With respect to the learned trial Adjudicator, the finding that the Appellant was “offering a bribe to secure a position for his son” does not sit easily with a 1 st Respondent who, on the very findings recorded elsewhere in the same judgment, had no actual function or activity within the meaning of section 7 of the Act capable of improper performance. This was a material misdirection in law as to the elements of the offence said to render the transaction illegal.
30. It must still be remembered that an illegal contract cannot be enforced. However, this does not mean that the party at fault can be allowed to unjustly enrich himself. In St Lavina Medical & Laboratory Services Ltd v National Hospital Insurance Fund Board of Management [2025] KECA 1527 (KLR ), the Court of Appeal [J Mohammed, LK Kimaru & AO Muchelule, JJA] expressed itself as follows:
31. “On the issue of conflict of interest, evidence established that an employee of the respondent held an interest in the appellant during accreditation, in breach of statutory and ethical standards. Such a conflict compromises transparency and renders the contract unenforceable. In the foundational case of Holman v Johnson (1775) 1Cowp 341, Lord Mansfield CJ underscored the core of this principle, declaring that “no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.” This timeless rule ensures that courts neither validate nor inadvertently incentivize illegal conduct, particularly where such conduct undermines the rule of law or the integrity of public policy. The trial court did not therefore err in declining to enforce a contract that was tainted with illegality, and this court sees no basis to interfere with that determination.
12.On privity of contract, from the record, the appellant was incorporated after execution of the contract. No evidence of assignment or novation was adduced. Under the doctrine of privity ( Agricultural Finance Corporation v Lengetia Limited (supra), the appellant lacked standing to enforce the agreement.
13.On quantum meruit, the principle cannot override the doctrine of illegality. Courts cannot aid enforcement of illegal transactions (Scott v Brown Doering McNab & Co. (3) [1892] 2 QB 724).”
32. Even assuming, without deciding, that the arrangement was tainted by some broader illegality of purpose, as opposed to disclosing a straightforward fraud practised upon the Appellant, the trial court's further holding that this necessarily barred the Appellant from any relief whatsoever does not, with respect, correctly state the law. The doctrine of ex turpi causa non oritur actio , upon which the authorities relied upon by the trial court are founded, is not an inflexible or absolute bar. Two established qualifications are directly engaged on these facts.
33. First, where parties to an illegal arrangement are not in pari delicto, that is, not equally at fault, the less blameworthy party is not barred from recovering money paid under it. The Privy Council applied this principle on appeal from Kenya in Kiriri Cotton Co Ltd v Ranchoddas Keshavji Dewani [1960] AC 192 , where a tenant who paid a premium prohibited by statute was permitted to recover it. The Board held that the statute existed to protect persons in the tenant's position, who could not be said to share equal blame with the landlord who exacted the payment.
34. So, in this case, if, as the findings recorded elsewhere in the record suggest, it was the 1st Respondent who approached the Appellant, misrepresented a facility he did not possess, and induced payment by instalments over time, the Appellant, an ordinary member of the public seeking employment for his son, cannot fairly be said to stand in pari delicto with a person subsequently found by his own employer to have obtained the money by false pretences.
35. Second, independently, a claim for the return of money paid under an arrangement that has wholly failed, where no part of the unlawful purpose has been carried into effect, is not a claim to enforce the tainted bargain at all, but a claim in restitution for money had and received on the total failure of consideration. It is not disputed that the Appellant's son was never recruited into the National Police Service, and that no part of the object of the payment was achieved.
36. The Appellant does not ask this Court to compel the 1st Respondent to perform an unlawful bargain; he asks only for the return of money paid to a person who, on the findings of his own employer, extracted it by deception and rendered nothing in return. Such a claim does not require the Court to give effect to any illegal purpose and is not defeated merely by the illegality, if any, of that purpose.
37. Indeed, to let a fraudster stay with money had and received will be unjust enrichment. Therefore, the adjudicator erred in not finding unjust enrichment against the first Respondent. In Chase International Investment Corporation and Another v Laxman Keshra and 3 others [1978] KECA 7 (KLR) , the Court of Appeal [Madan, Wambuzi & Law JJ A] posited as follows on unjust enrichment:
“In Fibrosa Spolka, Lord Wright ([1943] AC at page 61):
It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution.
It seems to me that upon a fine analysis the first category, ie the contract of guarantee which I have discussed above, blends into the theory of restitution which gives it the foundation to justify it. Goff and Jones in their treatise, Law of Restitution , state (page 11):
Most mature systems of law have found it necessary to provide, outside the fields of contract and civil wrongs, for the restoration of benefits on grounds of unjust enrichment. There are many circumstances in which a defendant may find himself in possession of a benefit which, in justice, he should restore to the plaintiff.
Obvious examples are where the plaintiff has himself conferred the benefit on the defendant through mistake or compulsion. To allow the defendant to retain such a benefit would result in his being unjustly enriched at the plaintiff’s expense, and this, subject to certain defined limits, the law will not allow ... The principle of unjust enrichment presupposes three things: first, that the defendant has been enriched by the receipt of a benefit; secondly, that he has been so enriched at the plaintiff’s expense; and thirdly, that it would be unjust to allow him to retain the benefit.
All the three foregoing conditions are satisfied in this case: the appellants have been enriched by the receipt of benefit at the expense of Laxmanbhai, and, so obviously, it would be unjust to allow the appellants to retain the benefit of it to the full extent of Laxmanbhai’s claim. Goff and Jones also state (at page 12):
The principle of unjust enrichment is placed in the forefront of the American Restatement of Restitution . Paragraph 1 provides that ‘a person who has been unjustly enriched at the expense of another is required to make restitution to the other’.
In the Canadian case, James More & Sons Ltd v University of Ottawa (1974) 5 OR (2d) 162, the plaintiff submitted a tender for the construction of a building contract for the defendant at a certain price. The tender included:
taxes ... in force at this date, but not including any additional ... taxes which may be imposed subsequent to this date, and which shall be payable by or to the owners.
Between the date of the tender and its acceptance the excise tax payable on building materials was increased. The defendant’s architect orally assured the plaintiff that the increase in tax would be met by the defendant, but the written contract executed by the parties provided only for the case of a reduction, not an increase, of tax. The plaintiff brought an action to recover the rise in tax and it was held that the plaintiff was entitled to succeed in restitution, for the defendants would be unjustly enriched if he were permitted to retain the rise in taxes which it recovered from the Government as entitled and which had been paid by the plaintiff. Morden J who decided this case said (5 OR (2d) at pages 166 to 171):
The plaintiff puts its case forward on, essentially, three grounds: (a) ... (b) ... and (c) unjust enrichment or restitution.
(c) Unjust enrichment or restitution: that the doctrine of restitution, which is based neither on contract nor tort, is firmly established in the law of Canada is clear from the decisions of the Supreme Court ... in ...
The aim of equity is to do justice between parties, that is what the doctrine of unjust enrichment is all about. I am firmly convinced that Laxmanbhai is entitled to succeed on the ground of unjust enrichment.”
38. Further, in Joel Mwangangi Kithure v Priscah Mukorimburi [2022] KEELC 1490 (KLR) , J, posited as follows:
“33. This court is alive to the doctrine of unjust enrichment. The Respondent would clearly be enriching herself injustly by retaining the land and the money paid to her by the Appellant. Broadly founded upon the aim of equity to do justice between parties, the doctrine of unjust enrichment and the remedy of restitution to counter unjust benefit proceed upon the realization that to allow a Defendant to retain such a benefit would result in his/her being unjustly enriched at the Plaintiff’s expense, and this, subject to certain defined limits, will not be tolerated by the law, and owing to the importance and aim of this doctrine in every advanced and civilized system of justice. This was the emphatic language of Madan, JA (as he then was) in the case of Chase International Investment Corporation and another –v- Laxman Keshra and others (1978) KLR 143 at page 154 where it was firmly and unequivocally laid down that in Kenya, a claim may properly be founded for restitution where it would be unjust to allow a party to retain the benefits of an unjust enrichment. The learned Judge stated inter alia:
“woe unto the day when it is lost sight in Kenya, which would also be contrary to the spirit of section 3(c) of the Judicature Act. I trust that in future, in appropriate cases, there will be less smothering of just equitable rights on the basis of technical objections and artificial distinctions oblivious to justice and substance.”
34. And on the authorities approved by Madan and Wambuzi, JJA (as they then were) in the case of Chase International Investment Corporation (supra), the basic elements presupposed by the doctrine of unjust enrichment are (1) that the Defendant has been enriched by the receipt of a benefit, (2) that he has been so enriched at the expense of the plaintiff to allow the Defendant to retain the benefit in the circumstances of the case. These subordinate principles of the general principle of unjust enrichment are interrelated. They clearly show the nature of restitutionary claims, and how people incur restitutionary obligations.
35. In other
[...truncated]
2. Dissatisfied with that outcome, the Appellant lodged a Memorandum of Appeal dated 30th August 2024, later amended on 3rd March 2026, setting out twelve grounds of appeal. He prays that the trial court's judgment be set aside, reviewed and/or varied, that the appeal be allowed, and that he be awarded the costs of the appeal and of the suit below.
BACKGROUND
3. The Appellant's case before the trial court was that, on various dates in 2021, commencing on or about 22nd February 2021, he transmitted to the 1st Respondent, by M-Pesa, sums totalling Kshs. 401,800/=. He further alleged that the 1st Respondent approached him and represented that he could facilitate the recruitment of the Appellant's son into the National Police Service, and that the money was required to meet the costs of the recruitment exercise, including uniforms, transport, medical examination, and accommodation.
4. The 1st Respondent did not deny receiving money from the Appellant. His case, both in disciplinary proceedings before the Teachers Service Commission (his employer, as he was a serving teacher) and before the trial court, was that he received the funds on behalf of the 2nd Respondent and forwarded them to him, whom he says had represented to him that he could secure the employment in question.
5. Upon the Appellant's complaint, the 1st Respondent was subjected to disciplinary proceedings by the Teachers Service Commission, found culpable of misconduct in the nature of obtaining money by false pretences, and dismissed from the teaching service.
6. The 2 nd Respondent was joined to the proceedings as a third party at the 1st Respondent's request. He denied ever meeting or transacting with the Appellant, receiving any money from the Appellant or the 1st Respondent for the alleged purpose, or promising to secure employment for the Appellant's son. It is common ground that the 2nd Respondent is the subject of pending criminal proceedings in Kitui Criminal Case No. MCCR E452 of 2021, Republic v Ezekiel Baraka Charo, in which he is charged with obtaining money by false pretences arising from these same events; that trial had, as at the hearing of this appeal, not been concluded.
7. At the hearing before the trial court, the Appellant, the 1st Respondent and the 2nd Respondent all gave evidence. The Appellant produced an M-Pesa statement, which the trial court admitted in evidence, showing transfers to the 1st Respondent. The 1st Respondent, for his part, admitted receiving money from the Appellant, though the figures he gave in his own testimony (variously put at Kshs. 201,000/= and Kshs. 200,000/= in different parts of his evidence) do not entirely reconcile with the pleaded and exhibited sum of Kshs. 401,800/=. He maintained that he forwarded what he received to the 2nd Respondent, but tendered no documentary or other corroborating evidence of having done so.
8. The learned trial Adjudicator, having set out the pleadings and evidence, did not in the end resolve the issues he had himself framed for determination, namely whether there was a legally binding agreement between the parties, whether the parties discharged their obligations under it, and whether the Appellant was entitled to recover the sum claimed. Instead, having concluded that the arrangement between the Appellant and the 1st Respondent was, in substance, one for the giving of a bribe to secure public employment for the Appellant's son, he held that the arrangement offended section 5 of the Bribery Act, 2016, was illegal and void ab initio, and was for that reason unenforceable.
9. Relying on the Court of Appeal's decision in D. Njogu & Company Advocates v National Bank of Kenya Limited [2016] eKLR , the English decision in David Taylor & Son v Barnett Trading Co [1953] 1 WLR , and the Court of Appeal's decision in Safari Inns Ltd & 2 Others v Deutsche Investitions- und Entwicklungsgesellschaft ('DEG') & Others [2011] eKLR (citing Nathalal Raghavji Lakhani v H. J. Vaitha & Another [1965] EA 452 ), the trial court dismissed the entire suit on the footing that a party to an illegal transaction cannot obtain the assistance of a court of equity, and made no order as to costs.
THE GROUNDS OF APPEAL
10. The Appellant's amended Memorandum of Appeal raises twelve grounds, which may fairly be grouped as follows:
a. that the trial court erred in fact and in law in dismissing the claim against the weight of the evidence, and in failing to consider the pleadings and evidence properly before it (grounds 1, 2, 8, 9 and 10);
b. that the trial court erred in law in characterising the arrangement between the parties as an illegal or corrupt scheme rather than a valid oral contract induced and breached by the 1st Respondent (grounds 3, 4, 5, 6, 7 and 11); and
c. that the trial court erred in law in failing to hold that the Appellant had discharged the burden of proof placed upon him by the Evidence Act (ground 12).
THE SUBMISSIONS
The Appellant's submissions
11. The Appellant submitted that he tendered clear, unchallenged evidence establishing his claim: that the 1st Respondent admitted receiving the sums transferred to him; that the 1st Respondent, not the Appellant, initiated the arrangement and represented that he could facilitate the recruitment; and that the Appellant, an unsophisticated party, harboured no corrupt intent but was misled and defrauded by the 1st Respondent.
12. He placed considerable weight on the outcome of the Teachers Service Commission's disciplinary process, in which the 1st Respondent was found to have obtained money from the Appellant by false pretences and was dismissed from service, and on the pending prosecution of the 2nd Respondent for the same conduct.
13. It was submitted that these facts are inconsistent with the trial court's characterisation of the Appellant as a briber and are instead consistent with the Appellant being the victim of a fraudulent scheme perpetrated by the 1st and 2nd Respondents. Counsel urges that the finding of illegality was not grounded in any evidence tendered by either Respondent, and that the appeal should be allowed, the judgment set aside, and the Appellant's claim allowed in full, with costs.
The 1st Respondent's submissions
14. The 1st Respondent submitted that the essential elements of a binding contract, in particular capacity and a lawful intention to be bound, are absent, because the arrangement pleaded by the Appellant, on its own terms, was an arrangement to pay money to secure a public appointment. It is submitted that this Court is, in effect, being asked to sanitise a corrupt scheme, an invitation counsel urges the Court to decline.
15. Further reliance was placed on the equitable maxim that he who comes to equity must come with clean hands. It is submitted that the Appellant's proper remedy, if any, lies in the outcome of the pending criminal trial against the 2nd Respondent in Kitui MCCR E452 of 2021. Counsel prays that the appeal be dismissed with costs to the 1st Respondent.
16. The 2nd Respondent
17. The 2 nd Respondent did not file submissions on this appeal, as was also the position at trial.
E. ANALYSIS AND DETERMINATION
The scope of this appeal
18. This being an Appeal from the Small Claims Court, the duty of the court is circumscribed under section 38 of the Small Claims Court Act, which provides as follows:
(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.
19. This provision has consistently, and in my view correctly, been construed as confining this Court’s appellate jurisdiction in appeals of this kind to questions of law, not to questions of fact simpliciter, save where a finding of fact is so unsupported by the evidence as to disclose an error of law. See, by analogy, the treatment of second appeals in Stanley N Muriithi & another v Bernard Munene Ithiga[2016] KECA 821 (KLR) , where the Court of Appeal [ WAKI, KARANJA & KIAGE, JJ.A) ] stated as follows:
“We have anxiously considered the record, the grounds in support of the appeal, the rival submissions of counsel, and the law. We are conscious of our limited jurisdiction when dealing with a second appeal. Our reading of Section 72(1) of the Civil Procedure Act, Chapter 21, Laws of Kenya, which provides for the circumstances when a second appeal shall lie from the appellate decrees of the High Court, indicates that the appeal must be on matters of law.
In Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR (Civil Appeal No. 127 of 2007) Onyango Otieno, J.A. put it succinctly in the following words:
“In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two 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.”
We hasten to observe, however, that failure on the part of the first appellate court to re-evaluate the evidence tendered before the trial court and as a result, arriving at the wrong conclusion is a point of law. We note that indeed, learned counsel for the appellants did submit that the learned Judge failed to consider most of the documents that were produced in evidence, and therefore arrived at the wrong conclusion.”
20. Further, in Mwita v Woodventure (K) Limited & another [2022] KECA 628 (KLR) , the Court of Appeal [PO Kiage, J Mohammed & M Ngugi, JJA ]held as follows in regard to its duty as a second appellate court:
“12. This is a second appeal. Accordingly, the jurisdiction of this Court is limited to consideration of matters of law. As was held in the case of Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR , on a second appeal, the Court confines itself to matters of law only, unless it is shown that the court below considered matters it should not have considered, or failed to consider matters it should have considered, or looking at the entire decision, it is perverse. See also Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR in which it was held that:
“In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two 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.”
13.A cursory glance at the grounds of appeal in the appellant’s memorandum of appeal shows that they relate primarily to questions of fact. The appellant was aggrieved by the finding of the first appellate court that he was not entitled to security costs. The third ground, which raises the question whether the interest on the payment made to the 1 st respondent should run from the date of filing suit, not from the date of the hire purchase agreement between the appellant and the 1 st respondent, is a matter of law.”
21. The appeal raises only one question of law: whether, on the evidence and pleadings before the court, they were entitled to the money paid to the first respondent. However, an Appeal of this nature concerns matters of law. It may be a pure matter of law or a mixed matter of law, but it remains a matter of law. An appeal on matters of law is akin to a second appeal to the Court of Appeal. The duty of a second Appellate Court was set out in the case of Otieno, Ragot & Company Advocates vs National Bank of Kenya Limited [2020] eKLR :
“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 ).”
22. Then what constitutes a point of law? In Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others (2014) eKLR , the court stated as follows:
“4. Although the phrase ‘a matter of law’ has not been defined by the Elections Act, it has been held in Timamy Issa Abdalla Vs Swaleh Salim Swaleh Imu & 3 Others , Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, Makhandia & Sichale, JJA) of 13.01.2014 that a decision is erroneous in law if it is one to which no court could reasonably come to, citing Bracegirdle vs Oxney (1947) 1 All ER 126. See also Khatib Abdalla Mwashetani Vs Gedion Mwangangi Wambua & 3 Others , Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, M'inoti & Sichale, JJA) of 23.01.2014 following AG vs David Marakaru (1960) EA 484.”
23. Grounds 1, 2, 8, 9 and 10 of the Memorandum of Appeal, which complain that the trial court dismissed the claim “against the weight of the evidence”, failed to “consider the pleadings”, or failed to find that the Appellant had proved his case “on a balance of probability”, are, on their face, complaints of fact falling outside section 38(1). I have nonetheless examined the record to satisfy myself that the trial court's primary findings on the underlying transaction – namely that the Appellant paid the 1st Respondent Kshs. 401,800/=, in instalments, for the stated purpose of facilitating the recruitment of his son into the National Police Service – are not seriously disputed by any party and are amply supported by the evidence, including the 1st Respondent's own admissions and the M-Pesa statement produced at trial. I do not find it necessary, or within my proper remit under section 38(1), to disturb those primary findings of fact. What is properly before me, and to which I now turn, is the legal characterisation the trial court placed upon those facts and the legal consequence it drew from that characterisation, namely grounds 3 to 7 and 11 of the appeal.
(b) Did the trial court err in law in holding the arrangement illegal and unenforceable?
24. The trial court's dismissal of the suit rested entirely on its finding that the arrangement between the Appellant and the 1st Respondent constituted the offence of giving a bribe under section 5 of the anti-Bribery Act, 2016, and was accordingly void and unenforceable in its entirety. Section 5(1) of the Act provides that a person commits the offence of giving a bribe:
1. A person commits the offence of giving a bribe if the person offers, promises or gives a financial or other advantage to another person, if the person offering, promising or giving knows or believes the acceptance of the financial or other advantage would itself constitute the improper performance of a relevant function or activity.
2. Subject to subsection (1), it shall not matter whether the person to whom the advantage is offered, promised or given is the same person as the person who is to perform, or has performed, the function or activity concerned, or whether the advantage is offered, promised or given by a person directly or through a third party .
25. In turn, section 7 of the said Act defines “relevant function or activity” as follows:
(1) For the purposes of this Act, a function or activity shall be construed to be a relevant function or activity if-
(a) it includes—(i)any function of a public nature;(ii)any function carried out by a State officer or public officer, pursuant to his or her duties;(iii)any function carried out by a foreign public official, pursuant to his or her duties;(iv)any activity connected with a business;(v)any activity performed in the course of a person's employment; or(vi)any activity performed by or on behalf of a body of persons whether corporate or otherwise;
(b) it meets one or more of the following conditions—(i)that the person performing the function or activity is expected to perform it in good faith;(ii)that the person performing the function or activity is expected to perform it impartially; or(iii)that the person performing the function or activity is in a position of trust by virtue of performing it
(2) For purpose of this section, a function or activity is a relevant function or activity even if it is performed in a county or territory outside Kenya.
26. Therefore, the functions must include, among other things, a function of a public nature, a function carried out by a state or public officer pursuant to his duties, or an activity connected with a person's business or employment, performed by a person who is expected to act in good faith or impartially, or who occupies a position of trust by virtue of performing it.
27. On the record before the trial court, the 1st Respondent was a primary school teacher employed by the Teachers Service Commission. He held no office, appointment or function, public or private, connected with recruitment into the National Police Service, nor is there any suggestion that he purported to act, or was believed by the Appellant to be acting, pursuant to any such office.
28. On the contrary, the undisputed evidence, including the findings of the Teachers Service Commission's own disciplinary process, shows that the 1 st Respondent held himself out to the Appellant as able to facilitate recruitment, despite having no genuine capacity, authority or connection to do so. For that reason, he was found guilty of obtaining money by false pretences and dismissed from the teaching service. That is the language and hallmark of the offence of obtaining money by false pretences under the Penal Code (Cap. 63), not of bribery under section 5 of the Bribery Act, which presupposes payment to a person who, in truth, occupies a relevant position of trust, good faith or impartiality capable of being improperly exercised.
29. With respect to the learned trial Adjudicator, the finding that the Appellant was “offering a bribe to secure a position for his son” does not sit easily with a 1 st Respondent who, on the very findings recorded elsewhere in the same judgment, had no actual function or activity within the meaning of section 7 of the Act capable of improper performance. This was a material misdirection in law as to the elements of the offence said to render the transaction illegal.
30. It must still be remembered that an illegal contract cannot be enforced. However, this does not mean that the party at fault can be allowed to unjustly enrich himself. In St Lavina Medical & Laboratory Services Ltd v National Hospital Insurance Fund Board of Management [2025] KECA 1527 (KLR ), the Court of Appeal [J Mohammed, LK Kimaru & AO Muchelule, JJA] expressed itself as follows:
31. “On the issue of conflict of interest, evidence established that an employee of the respondent held an interest in the appellant during accreditation, in breach of statutory and ethical standards. Such a conflict compromises transparency and renders the contract unenforceable. In the foundational case of Holman v Johnson (1775) 1Cowp 341, Lord Mansfield CJ underscored the core of this principle, declaring that “no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.” This timeless rule ensures that courts neither validate nor inadvertently incentivize illegal conduct, particularly where such conduct undermines the rule of law or the integrity of public policy. The trial court did not therefore err in declining to enforce a contract that was tainted with illegality, and this court sees no basis to interfere with that determination.
12.On privity of contract, from the record, the appellant was incorporated after execution of the contract. No evidence of assignment or novation was adduced. Under the doctrine of privity ( Agricultural Finance Corporation v Lengetia Limited (supra), the appellant lacked standing to enforce the agreement.
13.On quantum meruit, the principle cannot override the doctrine of illegality. Courts cannot aid enforcement of illegal transactions (Scott v Brown Doering McNab & Co. (3) [1892] 2 QB 724).”
32. Even assuming, without deciding, that the arrangement was tainted by some broader illegality of purpose, as opposed to disclosing a straightforward fraud practised upon the Appellant, the trial court's further holding that this necessarily barred the Appellant from any relief whatsoever does not, with respect, correctly state the law. The doctrine of ex turpi causa non oritur actio , upon which the authorities relied upon by the trial court are founded, is not an inflexible or absolute bar. Two established qualifications are directly engaged on these facts.
33. First, where parties to an illegal arrangement are not in pari delicto, that is, not equally at fault, the less blameworthy party is not barred from recovering money paid under it. The Privy Council applied this principle on appeal from Kenya in Kiriri Cotton Co Ltd v Ranchoddas Keshavji Dewani [1960] AC 192 , where a tenant who paid a premium prohibited by statute was permitted to recover it. The Board held that the statute existed to protect persons in the tenant's position, who could not be said to share equal blame with the landlord who exacted the payment.
34. So, in this case, if, as the findings recorded elsewhere in the record suggest, it was the 1st Respondent who approached the Appellant, misrepresented a facility he did not possess, and induced payment by instalments over time, the Appellant, an ordinary member of the public seeking employment for his son, cannot fairly be said to stand in pari delicto with a person subsequently found by his own employer to have obtained the money by false pretences.
35. Second, independently, a claim for the return of money paid under an arrangement that has wholly failed, where no part of the unlawful purpose has been carried into effect, is not a claim to enforce the tainted bargain at all, but a claim in restitution for money had and received on the total failure of consideration. It is not disputed that the Appellant's son was never recruited into the National Police Service, and that no part of the object of the payment was achieved.
36. The Appellant does not ask this Court to compel the 1st Respondent to perform an unlawful bargain; he asks only for the return of money paid to a person who, on the findings of his own employer, extracted it by deception and rendered nothing in return. Such a claim does not require the Court to give effect to any illegal purpose and is not defeated merely by the illegality, if any, of that purpose.
37. Indeed, to let a fraudster stay with money had and received will be unjust enrichment. Therefore, the adjudicator erred in not finding unjust enrichment against the first Respondent. In Chase International Investment Corporation and Another v Laxman Keshra and 3 others [1978] KECA 7 (KLR) , the Court of Appeal [Madan, Wambuzi & Law JJ A] posited as follows on unjust enrichment:
“In Fibrosa Spolka, Lord Wright ([1943] AC at page 61):
It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution.
It seems to me that upon a fine analysis the first category, ie the contract of guarantee which I have discussed above, blends into the theory of restitution which gives it the foundation to justify it. Goff and Jones in their treatise, Law of Restitution , state (page 11):
Most mature systems of law have found it necessary to provide, outside the fields of contract and civil wrongs, for the restoration of benefits on grounds of unjust enrichment. There are many circumstances in which a defendant may find himself in possession of a benefit which, in justice, he should restore to the plaintiff.
Obvious examples are where the plaintiff has himself conferred the benefit on the defendant through mistake or compulsion. To allow the defendant to retain such a benefit would result in his being unjustly enriched at the plaintiff’s expense, and this, subject to certain defined limits, the law will not allow ... The principle of unjust enrichment presupposes three things: first, that the defendant has been enriched by the receipt of a benefit; secondly, that he has been so enriched at the plaintiff’s expense; and thirdly, that it would be unjust to allow him to retain the benefit.
All the three foregoing conditions are satisfied in this case: the appellants have been enriched by the receipt of benefit at the expense of Laxmanbhai, and, so obviously, it would be unjust to allow the appellants to retain the benefit of it to the full extent of Laxmanbhai’s claim. Goff and Jones also state (at page 12):
The principle of unjust enrichment is placed in the forefront of the American Restatement of Restitution . Paragraph 1 provides that ‘a person who has been unjustly enriched at the expense of another is required to make restitution to the other’.
In the Canadian case, James More & Sons Ltd v University of Ottawa (1974) 5 OR (2d) 162, the plaintiff submitted a tender for the construction of a building contract for the defendant at a certain price. The tender included:
taxes ... in force at this date, but not including any additional ... taxes which may be imposed subsequent to this date, and which shall be payable by or to the owners.
Between the date of the tender and its acceptance the excise tax payable on building materials was increased. The defendant’s architect orally assured the plaintiff that the increase in tax would be met by the defendant, but the written contract executed by the parties provided only for the case of a reduction, not an increase, of tax. The plaintiff brought an action to recover the rise in tax and it was held that the plaintiff was entitled to succeed in restitution, for the defendants would be unjustly enriched if he were permitted to retain the rise in taxes which it recovered from the Government as entitled and which had been paid by the plaintiff. Morden J who decided this case said (5 OR (2d) at pages 166 to 171):
The plaintiff puts its case forward on, essentially, three grounds: (a) ... (b) ... and (c) unjust enrichment or restitution.
(c) Unjust enrichment or restitution: that the doctrine of restitution, which is based neither on contract nor tort, is firmly established in the law of Canada is clear from the decisions of the Supreme Court ... in ...
The aim of equity is to do justice between parties, that is what the doctrine of unjust enrichment is all about. I am firmly convinced that Laxmanbhai is entitled to succeed on the ground of unjust enrichment.”
38. Further, in Joel Mwangangi Kithure v Priscah Mukorimburi [2022] KEELC 1490 (KLR) , J, posited as follows:
“33. This court is alive to the doctrine of unjust enrichment. The Respondent would clearly be enriching herself injustly by retaining the land and the money paid to her by the Appellant. Broadly founded upon the aim of equity to do justice between parties, the doctrine of unjust enrichment and the remedy of restitution to counter unjust benefit proceed upon the realization that to allow a Defendant to retain such a benefit would result in his/her being unjustly enriched at the Plaintiff’s expense, and this, subject to certain defined limits, will not be tolerated by the law, and owing to the importance and aim of this doctrine in every advanced and civilized system of justice. This was the emphatic language of Madan, JA (as he then was) in the case of Chase International Investment Corporation and another –v- Laxman Keshra and others (1978) KLR 143 at page 154 where it was firmly and unequivocally laid down that in Kenya, a claim may properly be founded for restitution where it would be unjust to allow a party to retain the benefits of an unjust enrichment. The learned Judge stated inter alia:
“woe unto the day when it is lost sight in Kenya, which would also be contrary to the spirit of section 3(c) of the Judicature Act. I trust that in future, in appropriate cases, there will be less smothering of just equitable rights on the basis of technical objections and artificial distinctions oblivious to justice and substance.”
34. And on the authorities approved by Madan and Wambuzi, JJA (as they then were) in the case of Chase International Investment Corporation (supra), the basic elements presupposed by the doctrine of unjust enrichment are (1) that the Defendant has been enriched by the receipt of a benefit, (2) that he has been so enriched at the expense of the plaintiff to allow the Defendant to retain the benefit in the circumstances of the case. These subordinate principles of the general principle of unjust enrichment are interrelated. They clearly show the nature of restitutionary claims, and how people incur restitutionary obligations.
35. In other
[...truncated]