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(Being an appeal from the judgment of M. A. Otindo (Principal Magistrate) delivered on 26th September 2023 in CMCC No. 445 of 2019 at the Chief Magistrates Court, Machakos)
1. This appeal arises from a civil suit filed by the respondent, against the appellant in Civil Suit No. 445 of 2019 at the Chief Magistrate’s Court in Machakos.
2. In his plaint dated 20th February 2019, the respondent alleged that he entered into an agency agreement, with the appellant dated 10th November 2015. Under this agreement, the appellant engaged the respondent to act as his agent in acquiring the title to the property known as LR No. 12715/11 (IR No. 40213/4) (the property). As remuneration for his services, the respondent was to be paid Ksh10,000,000/-. The respondent claimed that he fulfilled his obligation under the agreement by successfully acquiring the title in 2016. However, he asserted that the appellant breached the agreement by paying only kshs5,000,000/-
3. Consequently, the respondent sought for judgment against the appellant for a sum of Ksh5,000,000/- as special damages, general damages, costs of the suit with interests and any other relief the court deemed fit to grant.
4. In his statement of defence, dated 14th January 2020, the appellant denied liability, contending that the amount paid to the respondent was commensurate to his entitlement. He maintained that he did not owe the respondent any money. He prayed for the suit to be dismissed with costs.
5. In a judgment dated 26th September 2023, the trial court found that the appellant had breached the agreement and was liable to pay the remaining balance of Ksh 5,000,000/-. The trial court declined to award general damages noting that the respondent had not plead any specific loss resulting from the breach.
6. Accordingly, the trial court entered judgment in favour of the respondent awarding him special damages of Ksh 5,000,000/-, costs of the suit and interest on the principal amount at commercial rates from the date of judgment until payment in full.
7. The decision of the trial court prompted the present appeal. The appellant filed this appeal vide the Memorandum of Appeal dated 4th October 2023 on three (3) grounds reproduced verbatim as follows, That-:
(1) The Honourable magistrate failed to appreciate the viva voce and documents in wholesome thereby arriving at the wrong conclusion.
(2) The trial magistrate failed to appreciate that the plaintiff failed to meet his contractual obligations as per the agency agreement dated 10th November 2015.
(3) The trial court in its judgement failed to exercise its judicious discretion on equity by failing to appreciate that the appellant expended additional funds to procure the title for L. R No. 12715/11(I.R No. 40213/4).
8. Consequently, the appellant seeks to have the judgment delivered on 26th September 2023 set aside, and further prays for the costs of this appeal.
9. The appeal was canvassed by way of written submissions. The appellant filed written submissions dated 25th November 2024 while the respondent filed submissions dated 8th January 2025 in response.
10. It is submitted that this being the first appeal, this court has a duty to re-evaluate, re-assess and re-analyze the evidence on record and determine whether the conclusions reached by the trial court should stand. Reliance was made to the case of Abok James Odera &Associates Vs John Patrick MAchira t/a Machira & Co. Advocates [2013] eKLR.
11. The appellant contends that the respondent neither disclosed nor demonstrated the amount he spent in procuring the title. Furthermore, the respondent failed to nor did he mention any of the steps and/or procedures he undertook to procure the title. It is argued that that he did not produce any supporting documents and/or substantiate his allegations.
12. It is submitted that despite his testimony, the respondent did not demonstrate how he facilitated the procurement of the title, or how he linked the appellant to third parties if at all. The appellants maintains that the respondent did not assist in procuring the title and that the trial magistrate failed to appreciate that the respondent''s duty as per the agreement was to facilitate the procuring of the title.
13. The appellant further argues that the trial magistrate failed to consider his viva voce evidence, in which he stated that he incurred additional costs in procuring the title. He asserts that he borrowed Ksh.2,500,000/- from Vimcare Capital Ltd to cover expenses such as land rates and subdivisions fees. It is submitted that had the respondent been involved in organizing invoices and procuring the title acquisition as claimed, he would have been aware of the loan obtained by the appellant to help support the process.
14. The appellant submits that the extra fees he incurred in procuring the title should have been deducted from the agent''s fees given that the respondent did not fulfil his obligation of facilitate the process.
15. It is also urged that the agency agreement did not contain any clause requiring amendments of the agency agreement be made in writing.
16. Consequently, the appellant maintains that the trial court failed to considerhis entire evidence including his viva voce evidence. He further argues that the trial magistrate overlooked the fact that the respondent did not perform his duties as a facilitator in the procuring of the title deed, and failed to account for the additional expenses incurred by the appellant in obtaining the Certificate of Title.
17. The respondent submits that three key issues arise for determination namely: (i) whether the trial magistrate properly interpreted the evidence of the appellant and his witnesses in reaching the judgment delivered on 26th September 2023, (ii) whether the doctrines of equity were applicable in this matter, and (iii) who bears the costs of this appeal.
18. On the first issue, the respondent urges this court to find that the subordinate court thoroughly evaluated the appellant’s evidence and arrived at a correct decision.
19. It is contended that it is trite law that parties are bound by the terms of the contract and the subordinate court had no jurisdiction to expand or diminish the rights and obligations of either party beyond what was stipulated in the agency agreement.
20. the respondent submits that the appellant’s claim that the respondent failed to disclosed or demonstrated the amount spent in procuring the title or the steps taken was not a requirement under the agency agreement. There was no clause making such a disclosure a condition precedent to payment of the full contractual sum.
21. The agency agreement expressly provided that the respondent would be entitled to payment of the full contract sum upon successfully procuring the title deed in favour of the appellant.
22. The respondent’s asserts that he fulfilled his contractual obligations by procuring the title deed, thereby vesting ownership of the Property in the appellant’s name. As such, full payment became due upon completion of the task.
23. It is further contended that the appellant does not dispute that the respondent facilitated the process of procuring the title as outlined in the agency agreement and therefore full payment was warranted. He submitted that the signing of the agency agreement validated the contract making it actionable in court in the event of a breach.
24. It is the respondent’s position that this court cannot expand the scope of his role in facilitating the procurement of the title beyond what was contemplated in the agency agreement as signed by the parties.
25. The respondent argues that the trial court rightly identified the appellant’s attempt to amend the agency agreement through his witness statements and viva voce evidence. Such amendments, however, are invalid any alteration to the agency agreement would require written documentation.
26. On the second issue, the respondent contends that the appellant’s invitation to the court to apply equitable principles is misplaced, as equity was not incorporated into the agency agreement. There was no variation of the agency contract to include additional expenses as a factor that could alter the terms of the contract.
27. On the third issue, the respondent relies on the Supreme Court decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR to argue that having failed on all grounds, the appellants should be condemned to pay the costs of this appeal.
28. I have carefully considered the grounds of appeal, read through the record of appeal and the submissions of the parties. From this, the sole issue that emerges for determination is whether the trial court erred in finding that appellant liable for payment of special damages of Kshs. 5,000,000, together with costs of the suit and interest.
29. As this is a first appeal, the principles set out in Selle v. Associated Motor Boat Co. Ltd [1968] EA, are applicable.
30. With this guiding principle in mind, I proceed. The appellant contends that the trial court failed to consider his oral testimony and overlooked the fact that the respondent did not perform his duties as a facilitator in procuring of the title deed. He argues that, as a result, the respondent is not entitled to the Ksh 5,000,000/- awarded by the trial court. Conversely, the respondent maintains that he successfully procured the title vesting ownership of the Property in the appellant’s name. He asserts that he fully performed his contractual obligations and is therefore entitled to the full agreed sum of Ksh 10,000,000/-.
31. It is not in dispute that the appellant had been appointed as the Administrator of the Estate of the late Elizabeth Kamene in Machakos High Court Succession Cause No. 734/2015. It is also undisputed that the appellant and respondent entered into an agency agreement on 10th November 2015 under which the appellant engaged the respondent to facilitate the acquisition of the title for the property known as LR No. 12715/11 (IR No. 40213/4). The agreed fee for the facilitation was Ksh 10,000,000.
32. I have meticulously examined the agency agreement dated 10th November 2015. In this agreement, the appellant is referred to as the administrator and the respondent is referred to as the facilitator. The agency agreement states in part reads that, "..the administrator on behalf of the estate hereby hires the facilitator to continue to assist the Agents of the Administrator in running and acquiring the title." It further provides that the that the facilitator shall be entitled to a fee of Ksh10,000,000/- from the 55% stake due to the administrator and his family. Payment was to be made upon the sale of the property and deducted by the lawyer acting for the seller. This agreement is duly signed by both parties.
33. To determine whether the trial court erred in awarding the Ksh 5,000,000 to the respondent, the court must first establish whether this agency agreement constituted a binding contract.
34. Guidance on this issue is found in the Court of Appeal decision William Muthee Muthami v Bank of Baroda [2014] KECA 591 (KLR) which held: “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 bring a claim against the party in breach.”
35. In this case, the respondent extended an invitation to treat by offering to act as the appellant’s agent in facilitating the acquisition of the title deed. The appellant accepted this invitation and made a formal offer, which the respondent accepted. The consideration was clearly set at Ksh10,000,000/-. By executing the agreement, both parties demonstrated their intended to create a legally binding and enforceable relationship.
36. Thus, I am of the considered view that this agency agreement dated 10th November 2015 is legally enforceable as it satisfies all the requirements of a valid contract namely offer acceptance and consideration.
37. I am not persuaded by the appellant’s argument that the agency agreement was varied to entitle the respondent to the sum of Ksh.5,000,000/- only. Contrary to the assertion of the appellant, there is no term in the contract suggesting that the agreed sum was provisional subject to adjustment based on expenses incurred.
38. Although the appellant claims that the expenses exceeded the projected budget and those financial adjustments were necessary, which position was at all material times communicated to the respondent to his satisfaction, there is no evidence on record to support this position.
39. The appellant further argues that the respondent was obligated to cover certain expenses to facilitate the procurement of the title, which he allegedly failed to do. However, this obligation is not expressly stated in the agency agreement.
40. In light of the binding nature of the contract, the appellant was not at liberty to unilaterally determine what amount was commensurate to the respondent’s work. He was bound to pay the full contractual sum of Ksh10,000,000/-. I am fortified in this finding by the absences of any valid variation to the agency agreement on record.
41. This court is also not at liberty to re-write the terms of contract between the parties. I am bound by the Court of Appeal decision in Richard Akwesere Onditi versus Kenya Commercial Finance Company Limited Kisumu CA No. 329 of 2009 (UR) wherein the court of appeal made observation inter alia:
“These were terms agreed between the parties in respect of the loan and ordinarily it is not in the province of the courts to re-write those terms for the parties however onerous they may be to one of them.”
42. Having reappraised the evidence afresh, I find that the appellant failed to establish his case. I affirm the decision of the trial court. The appeal fails and is hereby dismissed with costs assessed at Kshs. 45,000/-
It is so ordered.
Delivered, Dated and Signed this 9th day of October 2025
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(Being an appeal from the judgment of M. A. Otindo (Principal Magistrate) delivered on 26th September 2023 in CMCC No. 445 of 2019 at the Chief Magistrates Court, Machakos)
1. This appeal arises from a civil suit filed by the respondent, against the appellant in Civil Suit No. 445 of 2019 at the Chief Magistrate’s Court in Machakos.
2. In his plaint dated 20th February 2019, the respondent alleged that he entered into an agency agreement, with the appellant dated 10th November 2015. Under this agreement, the appellant engaged the respondent to act as his agent in acquiring the title to the property known as LR No. 12715/11 (IR No. 40213/4) (the property). As remuneration for his services, the respondent was to be paid Ksh10,000,000/-. The respondent claimed that he fulfilled his obligation under the agreement by successfully acquiring the title in 2016. However, he asserted that the appellant breached the agreement by paying only kshs5,000,000/-
3. Consequently, the respondent sought for judgment against the appellant for a sum of Ksh5,000,000/- as special damages, general damages, costs of the suit with interests and any other relief the court deemed fit to grant.
4. In his statement of defence, dated 14th January 2020, the appellant denied liability, contending that the amount paid to the respondent was commensurate to his entitlement. He maintained that he did not owe the respondent any money. He prayed for the suit to be dismissed with costs.
5. In a judgment dated 26th September 2023, the trial court found that the appellant had breached the agreement and was liable to pay the remaining balance of Ksh 5,000,000/-. The trial court declined to award general damages noting that the respondent had not plead any specific loss resulting from the breach.
6. Accordingly, the trial court entered judgment in favour of the respondent awarding him special damages of Ksh 5,000,000/-, costs of the suit and interest on the principal amount at commercial rates from the date of judgment until payment in full.
7. The decision of the trial court prompted the present appeal. The appellant filed this appeal vide the Memorandum of Appeal dated 4th October 2023 on three (3) grounds reproduced verbatim as follows, That-:
(1) The Honourable magistrate failed to appreciate the viva voce and documents in wholesome thereby arriving at the wrong conclusion.
(2) The trial magistrate failed to appreciate that the plaintiff failed to meet his contractual obligations as per the agency agreement dated 10th November 2015.
(3) The trial court in its judgement failed to exercise its judicious discretion on equity by failing to appreciate that the appellant expended additional funds to procure the title for L. R No. 12715/11(I.R No. 40213/4).
8. Consequently, the appellant seeks to have the judgment delivered on 26th September 2023 set aside, and further prays for the costs of this appeal.
9. The appeal was canvassed by way of written submissions. The appellant filed written submissions dated 25th November 2024 while the respondent filed submissions dated 8th January 2025 in response.
10. It is submitted that this being the first appeal, this court has a duty to re-evaluate, re-assess and re-analyze the evidence on record and determine whether the conclusions reached by the trial court should stand. Reliance was made to the case of Abok James Odera &Associates Vs John Patrick MAchira t/a Machira & Co. Advocates [2013] eKLR.
11. The appellant contends that the respondent neither disclosed nor demonstrated the amount he spent in procuring the title. Furthermore, the respondent failed to nor did he mention any of the steps and/or procedures he undertook to procure the title. It is argued that that he did not produce any supporting documents and/or substantiate his allegations.
12. It is submitted that despite his testimony, the respondent did not demonstrate how he facilitated the procurement of the title, or how he linked the appellant to third parties if at all. The appellants maintains that the respondent did not assist in procuring the title and that the trial magistrate failed to appreciate that the respondent''s duty as per the agreement was to facilitate the procuring of the title.
13. The appellant further argues that the trial magistrate failed to consider his viva voce evidence, in which he stated that he incurred additional costs in procuring the title. He asserts that he borrowed Ksh.2,500,000/- from Vimcare Capital Ltd to cover expenses such as land rates and subdivisions fees. It is submitted that had the respondent been involved in organizing invoices and procuring the title acquisition as claimed, he would have been aware of the loan obtained by the appellant to help support the process.
14. The appellant submits that the extra fees he incurred in procuring the title should have been deducted from the agent''s fees given that the respondent did not fulfil his obligation of facilitate the process.
15. It is also urged that the agency agreement did not contain any clause requiring amendments of the agency agreement be made in writing.
16. Consequently, the appellant maintains that the trial court failed to considerhis entire evidence including his viva voce evidence. He further argues that the trial magistrate overlooked the fact that the respondent did not perform his duties as a facilitator in the procuring of the title deed, and failed to account for the additional expenses incurred by the appellant in obtaining the Certificate of Title.
17. The respondent submits that three key issues arise for determination namely: (i) whether the trial magistrate properly interpreted the evidence of the appellant and his witnesses in reaching the judgment delivered on 26th September 2023, (ii) whether the doctrines of equity were applicable in this matter, and (iii) who bears the costs of this appeal.
18. On the first issue, the respondent urges this court to find that the subordinate court thoroughly evaluated the appellant’s evidence and arrived at a correct decision.
19. It is contended that it is trite law that parties are bound by the terms of the contract and the subordinate court had no jurisdiction to expand or diminish the rights and obligations of either party beyond what was stipulated in the agency agreement.
20. the respondent submits that the appellant’s claim that the respondent failed to disclosed or demonstrated the amount spent in procuring the title or the steps taken was not a requirement under the agency agreement. There was no clause making such a disclosure a condition precedent to payment of the full contractual sum.
21. The agency agreement expressly provided that the respondent would be entitled to payment of the full contract sum upon successfully procuring the title deed in favour of the appellant.
22. The respondent’s asserts that he fulfilled his contractual obligations by procuring the title deed, thereby vesting ownership of the Property in the appellant’s name. As such, full payment became due upon completion of the task.
23. It is further contended that the appellant does not dispute that the respondent facilitated the process of procuring the title as outlined in the agency agreement and therefore full payment was warranted. He submitted that the signing of the agency agreement validated the contract making it actionable in court in the event of a breach.
24. It is the respondent’s position that this court cannot expand the scope of his role in facilitating the procurement of the title beyond what was contemplated in the agency agreement as signed by the parties.
25. The respondent argues that the trial court rightly identified the appellant’s attempt to amend the agency agreement through his witness statements and viva voce evidence. Such amendments, however, are invalid any alteration to the agency agreement would require written documentation.
26. On the second issue, the respondent contends that the appellant’s invitation to the court to apply equitable principles is misplaced, as equity was not incorporated into the agency agreement. There was no variation of the agency contract to include additional expenses as a factor that could alter the terms of the contract.
27. On the third issue, the respondent relies on the Supreme Court decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR to argue that having failed on all grounds, the appellants should be condemned to pay the costs of this appeal.
28. I have carefully considered the grounds of appeal, read through the record of appeal and the submissions of the parties. From this, the sole issue that emerges for determination is whether the trial court erred in finding that appellant liable for payment of special damages of Kshs. 5,000,000, together with costs of the suit and interest.
29. As this is a first appeal, the principles set out in Selle v. Associated Motor Boat Co. Ltd [1968] EA, are applicable.
30. With this guiding principle in mind, I proceed. The appellant contends that the trial court failed to consider his oral testimony and overlooked the fact that the respondent did not perform his duties as a facilitator in procuring of the title deed. He argues that, as a result, the respondent is not entitled to the Ksh 5,000,000/- awarded by the trial court. Conversely, the respondent maintains that he successfully procured the title vesting ownership of the Property in the appellant’s name. He asserts that he fully performed his contractual obligations and is therefore entitled to the full agreed sum of Ksh 10,000,000/-.
31. It is not in dispute that the appellant had been appointed as the Administrator of the Estate of the late Elizabeth Kamene in Machakos High Court Succession Cause No. 734/2015. It is also undisputed that the appellant and respondent entered into an agency agreement on 10th November 2015 under which the appellant engaged the respondent to facilitate the acquisition of the title for the property known as LR No. 12715/11 (IR No. 40213/4). The agreed fee for the facilitation was Ksh 10,000,000.
32. I have meticulously examined the agency agreement dated 10th November 2015. In this agreement, the appellant is referred to as the administrator and the respondent is referred to as the facilitator. The agency agreement states in part reads that, "..the administrator on behalf of the estate hereby hires the facilitator to continue to assist the Agents of the Administrator in running and acquiring the title." It further provides that the that the facilitator shall be entitled to a fee of Ksh10,000,000/- from the 55% stake due to the administrator and his family. Payment was to be made upon the sale of the property and deducted by the lawyer acting for the seller. This agreement is duly signed by both parties.
33. To determine whether the trial court erred in awarding the Ksh 5,000,000 to the respondent, the court must first establish whether this agency agreement constituted a binding contract.
34. Guidance on this issue is found in the Court of Appeal decision William Muthee Muthami v Bank of Baroda [2014] KECA 591 (KLR) which held: “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 bring a claim against the party in breach.”
35. In this case, the respondent extended an invitation to treat by offering to act as the appellant’s agent in facilitating the acquisition of the title deed. The appellant accepted this invitation and made a formal offer, which the respondent accepted. The consideration was clearly set at Ksh10,000,000/-. By executing the agreement, both parties demonstrated their intended to create a legally binding and enforceable relationship.
36. Thus, I am of the considered view that this agency agreement dated 10th November 2015 is legally enforceable as it satisfies all the requirements of a valid contract namely offer acceptance and consideration.
37. I am not persuaded by the appellant’s argument that the agency agreement was varied to entitle the respondent to the sum of Ksh.5,000,000/- only. Contrary to the assertion of the appellant, there is no term in the contract suggesting that the agreed sum was provisional subject to adjustment based on expenses incurred.
38. Although the appellant claims that the expenses exceeded the projected budget and those financial adjustments were necessary, which position was at all material times communicated to the respondent to his satisfaction, there is no evidence on record to support this position.
39. The appellant further argues that the respondent was obligated to cover certain expenses to facilitate the procurement of the title, which he allegedly failed to do. However, this obligation is not expressly stated in the agency agreement.
40. In light of the binding nature of the contract, the appellant was not at liberty to unilaterally determine what amount was commensurate to the respondent’s work. He was bound to pay the full contractual sum of Ksh10,000,000/-. I am fortified in this finding by the absences of any valid variation to the agency agreement on record.
41. This court is also not at liberty to re-write the terms of contract between the parties. I am bound by the Court of Appeal decision in Richard Akwesere Onditi versus Kenya Commercial Finance Company Limited Kisumu CA No. 329 of 2009 (UR) wherein the court of appeal made observation inter alia:
“These were terms agreed between the parties in respect of the loan and ordinarily it is not in the province of the courts to re-write those terms for the parties however onerous they may be to one of them.”
42. Having reappraised the evidence afresh, I find that the appellant failed to establish his case. I affirm the decision of the trial court. The appeal fails and is hereby dismissed with costs assessed at Kshs. 45,000/-
It is so ordered.
Delivered, Dated and Signed this 9th day of October 2025
'