(Being an appeal from the judgment and decree of Hon. E.M. Kivuti Senior Resident Magistrate delivered on 31/1/2019 in the Magistrates Court at Baricho MCCC No. 36 of 2018)
1. This appeal arises from a suit by the respondent Stephen Wachira Mburia against the appellant Benson Mwangi Muriithi in a plaint dated 16/2/2018. The respondent’s claim in the suit was for KShs 1,500,000/= plus interest at 14% till payment in full, being the share of the respondent’s agency fees received by the appellant from one Hutchison Gathiru Kimaru for sale of Kimaru’s land by the respondent and the appellant acting together. He also prayed for interest and costs.
2. The respondent’s claim through his plaint dated 16/2/2018 was that on 27/10/2017 the respondent and the appellant on the one hand, acting as sales agents entered into an agency agreement with Hutchison Gathiru Kimaru to sell the latter’s land parcel No. Mwerua/Kagio/2739 at a reserve price of KShs 10,000,000/= and any amount above this to be the agents’ commission. The respondent averred that he together with the appellant managed to sale the land to Bingwa Sacco at a consideration of KShs 16,000,000/=. Hutchison Gathiru Kimaru paid the appellant agency fee of KShs 3,000,000/= which according to the respondent was supposed to be shared equally between them but the appellant refused to hand over to the respondent his fair share of the agency commission. He thus filed suit to recover the money from the appellant.
3. The appellant on his part, as the defendant in the suit denied owing the money claimed.
4. The appellant filed a statement of defence dated 31/7/2018 and averred that the Agency Agreement that assisted the seller Hutchinson Gathiru Kimaru to get Bingwa Sacco Society Ltd as the purchaser was the one dated 30/10/2017 and the principal set his selling price as KShs 13,000,000/= and the sale succeeded. He averred that the respondent’s claim was therefore misplaced as it never crystallized.
5. In his reply to defence dated 13/8/2018 the respondent averred that the agency agreement with the appellant was never terminated to give way to any other agency agreement between the parties.
6. The respondent and the appellant testified in the case each giving his side of the story and each was cross-examined largely upon the lines of their pleadings.
7. Upon considering the evidence and submissions of parties, the learned trial magistrate found that the agency agreement which formed the basis of the acknowledgment slip whereby the appellant received the money from Hutchinson was the one dated 27/10/2027 and it was not varied by the agreement dated 30/11/2017 made between the principal and the appellant. She therefore entered judgment for the respondent against the appellant for the sum of KShs 1.5 million with interest at court rates from the time of filing suit together with costs and interest.
8. The appellant was aggrieved by the judgment and now appeals against that decision in his memorandum dated 11/2/2019 raising some eleven grounds which can however be summarized into a few grounds viz, that the learned trial magistrate erred in fact and in law by finding the appellant liable to pay KShs 1,500,000/= to the respondent and entering judgment against him in spite of the evidence adduced at the hearing. Further that the learned trial magistrate shifted the burden of proof upon the appellant by requiring him to produce an agreement dated 28/11/2017 when the same had been pleaded by the respondent and by relying on the statement of the principal Hutchinson Gathiru Kimaru as a witness when the same had been withdrawn.
9. The appeal was disposed of by way of written submissions which were filed by learned counsels for both parties.
10. Learned counsel for the appellant set out the issues for determination as follows:
a. whether the learned magistrate erred in law and fact by shifting the burden of proof from the respondent to the appellant.
b. whether the learned magistrate erred in law and fact by failing to interpret the clear terms of the agency agreement dated 27/10/2017 and the acknowledgment slip dated 30/12/2017.
c. whether the learned magistrate erred in law and fact by relying on the evidence of a non-existent or recanted witness.
d. whether the learned magistrate erred in law and fact by holding that the appellant had indemnified Hutchinson Gathiru Kimaru against any claim from the respondent.
11. The submissions by learned counsel for both parties are made along these four issues.
12. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A 123 where it was held as follows:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
13. I have considered the grounds of appeal, the submissions by learned counsels for the parties and reviewed and re-examined the case before the trial court and considered the judgment of the trial court.
14. The claim by the respondent against the appellant before the trial court was in the nature of money had and received. In that case the respondent was required to prove that first he was entitled to the money, secondly that the appellant received it and thirdly that such receipt by the appellant was unjust due to a vitiating factor.
15. Although the claim was based on the agreement dated 27/10/2017 which was entered into between the appellant and the respondent on the one hand as agents of Hutchison Gathiru Kimaru for the sale of his parcel of land registration number Mwerua/Kagio/2739, that agreement was not meant to form a contractual relationship between the appellant and the respondent. Rather, it was, as variously acknowledged by both parties herein, between the appellant and the respondent on the one hand as agents for the sale of property and Hutchison Gathiru Kimaru on the other as principal and vendor of the property.
16. In this case, there is no dispute that the appellant received KShs 3,000,000/= as agency fee from one Hutchison Gathiru Kimaru, the seller of the property.
17. The issue for determination is whether the respondent was entitled to half of this money and if so whether retention of the KShs 1,500,000/= by the appellant was unjust and should therefore have been paid over to the respondent.
18. As submitted by learned counsel for the appellant the burden of proof was upon the respondent to prove his case on a balance of probability as extensively set out in the case cited by learned counsel of Manyinsa v Lavington Security Limited [2023] KECA 1376 (KLR).
19. There is no dispute that an agreement dated 27/10/2017 was entered into between the appellant and the respondent on the one hand as agents of Hutchison Gathiru Kimaru for the sale of his parcel of land registration number Mwerua/Kagio/2739. It was the respondent’s case that payment of the commission fee of KShs 3,000,000/= by Hutchison was based on this agreement. The appellant on his part stated that in fact, that agreement was overtaken by another one dated 30/10/2017 which then was the basis of the payment.
20. The learned trial magistrate found that the agreement of 30/10/2017 did not vary the agreement of 27/10/2017 which remained effective as between the appellant and the respondent. I find no reason to fault the learned trial magistrate on that finding for various reasons following.
21. But first, I agree with the appellant that the learned trial magistrate was in error to rely on the statement of the principal Hutchison Gathiru Kimaru because he had withdrawn the same vide his notice dated 12/4/2018 and he also testified in court on 8/11/2018 and reiterated that he had withdrawn as the respondent’s witness. So, the evidence for the respondent was only from himself.
22. In his evidence the respondent who adopted his witness statement dated 16/2/2018 said that he was the one who introduced the appellant who was in company of an advocate called Ngangah to the principal Hutchison who wanted to sell his land.
23. In his evidence through the witness statement dated 31/7/2018 the appellant said that though they made the agency agreement dated 27/10/2017 the respondent and the appellant did not get a purchaser.
24. The issue the is who between the two was telling the truth. The learned trial magistrate believed the respondent and found that if the respondent was not telling the truth, he would not have been part of the acknowledgement of receipt of the agency fee dated 30/12/2017. I find that the learned trial magistrate was correct. Otherwise, why would the respondent have brought him into that acknowledgment if indeed the agreement of 27/10/2017 had been overtaken by the one dated 30/10/2017.
25. The respondent’s evidence that he was the one who introduced the appellant who was together with an advocate called Ngangah to the principal or vendor, Hutchison, who wanted to sell his land and that at that time, the appellant had told him that Bingwa Sacco society limited wanted to purchase such property as the vendor had, was not challenged by the appellant either in his evidence in chief or in cross-examination of the respondent. On his part, the appellant had information that Bingwa Sacco Society Ltd wanted to purchase a piece of land. After meeting the seller, Hutchison together, they drafted the agreement dated 27/10/2017 in Advocate Ikahu Ngangah’s office. What took them to the principal’s property was the information each of them had. It was not some random engagement in speculation on sale of the principal’s property as the appellant wishes to present. It follows that the two acted together, the appellant got the buyer, Bingwa Sacco Society Ltd and the respondent got the seller for the property, Hutchison.
26. I therefore agree with the learned trial magistrate that the appellant wanted to pull a first one on the respondent by introducing the agreement of 30/10/2017. His defence that the transaction for the sale of the land was based on the agreement of 30/10/2017 is misplaced. In the first place, the respondent was not a party to the agreement and so it could not have rescinded the earlier one of 27/10/2017. Secondly, the agreement of 30/10/2017 involved different parties, one of them who was not in the initial agreement namely Magee wa Magee & Co. Advocates and so it could not purport to rescind the one of 27/10/2017 when the respondent had not agreed to the same. There was no consent by the respondent that the later agreement superseded the earlier one nor a common intention between the respondent and the appellant to rescind the earlier agreement.
27. But more telling is the acknowledgment slip dated 30/12/2017. The appellant takes issue with the acknowledgment slip indication that the Agency Agreement was dated 28/11/2017 and that the learned trial magistrate failed to interpret the clear terms expressed therein. The terms of the acknowledgment slip were that it referred to an Agency Agreement dated 28/11/2017. It is clear from the evidence of the parties that there was no agency agreement entered on that date and so that could only have been a typographical error.
28. The acknowledgment slip further indicates that the agreement was between Hutchison Gathiru Kimaru and the agency being Stephen Wachira Mburia, who is the respondent herein and Benson Mwangi Muriithi, who is the appellant herein. There was no other agency agreement entered into by these parties over the sale of Hutchison’s land other than the one dated 27/10/2017. Another term therein is that Benson Mwangi Muriithi who was the recipient of the KShs 3 million agreed to indemnify Hutchinson Gathiru Kimaru against any claim from Stephen Wachira Mburia. Again, this is a clear indication that Stephen Wachira Mburia, the respondent herein was recognized in that acknowledgment. He could only have been recognized because of the agency agreement he had made on 27/10/2017. Finally, the three people who signed the agency agreement of 27/10/2017, that is Stephen Wachira Mburia and Benson Mwangi Muriithi on the one hand and Hutchison Gathiru Kimaru on the other were the same ones who signed this acknowledgment slip. What else could the appellant have been agreeing to indemnify the principal other than that he would give the respondent his fair share of the KShs 3 million and so the respondent would not seek the same from the principal?
29. The respondent did not therefore have to produce any agency agreement dated 28/11/2017 and the learned trial magistrate did not fail to interpret the acknowledgment slip dated 30/12/2017 as submitted by learned counsel for the appellant because there was no such an agreement anywhere. The submission that it related to a different transaction is misplaced because there was no such evidence before the trial court and submissions on appeal cannot take the place of evidence tendered before a trial court.
30. I find that the respondent was able to satisfy the trial court and the learned magistrate correctly arrived at the decision that the respondent was entitled to the KShs 1,500,000/= as his share of the commission paid by Hutchison to the appellant. There is no dispute that the appellant received it and thirdly that such receipt by the appellant was unjust where he clearly agreed to indemnify the principal from any claim arising from the respondent and yet he failed to hand over the respondent’s share to him.
31. In the case of Bid Insurance Brokers Limited v British United Provident Fund [2016] KEHC 1159 (KLR) the High Court considering the issue of restitution as a remedy in law said:
“The remedy of restitution only applies where the Defendant has been unjustly enriched and would only apply where the contract has been set aside. “The essence of restitution” according to Chitty on Contracts, is concerned with whether a claimant can recover a benefit from the Defendant, rather than whether the claimant can be compensated for the loss suffered. Restitutionary remedies are therefore distinct from those which are traditionally available in contract or in tort as was recognized by Lord Wright in the case of FIBROSA SPOLKA AKCYJNA vs. FAIRBAIRN LAWSON COUIBE BARBOUR LIMITED [1943] A.C. 32, 61 –
“It is clear that any civilized 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 not recognized to fall within a third category of the common law which has been called quasi-contract or restitution.”
In FOSKET vs. Mc KROWN [2001] 1AC 102 the House of Lords recognized that restitutionary remedies are available where the Defendant has been unjustly enriched at the expense of the claimant.”
32. In this case, it is apparent that the appellant, in retaining the KShs 1,500,000/= meant to be for the respondent unjustly enriched himself and he is bound to restitute the respondent to the position he ought to have been had the principal paid the money directly to him. I am satisfied that the decision by the learned trial magistrate was correct and the same is affirmed.
33. Consequently, I find that the appeal has not merit and the same is dismissed with costs to the respondent.
34. Orders accordingly.
Dated, Signed and Delivered on the virtual platform Teams this 16th day of June 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Mwagiru for the Appellant.
Munene Muriuki for the Respondent.
Job: Court Assistant.
1. This appeal arises from a suit by the respondent Stephen Wachira Mburia against the appellant Benson Mwangi Muriithi in a plaint dated 16/2/2018. The respondent’s claim in the suit was for KShs 1,500,000/= plus interest at 14% till payment in full, being the share of the respondent’s agency fees received by the appellant from one Hutchison Gathiru Kimaru for sale of Kimaru’s land by the respondent and the appellant acting together. He also prayed for interest and costs.
2. The respondent’s claim through his plaint dated 16/2/2018 was that on 27/10/2017 the respondent and the appellant on the one hand, acting as sales agents entered into an agency agreement with Hutchison Gathiru Kimaru to sell the latter’s land parcel No. Mwerua/Kagio/2739 at a reserve price of KShs 10,000,000/= and any amount above this to be the agents’ commission. The respondent averred that he together with the appellant managed to sale the land to Bingwa Sacco at a consideration of KShs 16,000,000/=. Hutchison Gathiru Kimaru paid the appellant agency fee of KShs 3,000,000/= which according to the respondent was supposed to be shared equally between them but the appellant refused to hand over to the respondent his fair share of the agency commission. He thus filed suit to recover the money from the appellant.
3. The appellant on his part, as the defendant in the suit denied owing the money claimed.
4. The appellant filed a statement of defence dated 31/7/2018 and averred that the Agency Agreement that assisted the seller Hutchinson Gathiru Kimaru to get Bingwa Sacco Society Ltd as the purchaser was the one dated 30/10/2017 and the principal set his selling price as KShs 13,000,000/= and the sale succeeded. He averred that the respondent’s claim was therefore misplaced as it never crystallized.
5. In his reply to defence dated 13/8/2018 the respondent averred that the agency agreement with the appellant was never terminated to give way to any other agency agreement between the parties.
6. The respondent and the appellant testified in the case each giving his side of the story and each was cross-examined largely upon the lines of their pleadings.
7. Upon considering the evidence and submissions of parties, the learned trial magistrate found that the agency agreement which formed the basis of the acknowledgment slip whereby the appellant received the money from Hutchinson was the one dated 27/10/2027 and it was not varied by the agreement dated 30/11/2017 made between the principal and the appellant. She therefore entered judgment for the respondent against the appellant for the sum of KShs 1.5 million with interest at court rates from the time of filing suit together with costs and interest.
8. The appellant was aggrieved by the judgment and now appeals against that decision in his memorandum dated 11/2/2019 raising some eleven grounds which can however be summarized into a few grounds viz, that the learned trial magistrate erred in fact and in law by finding the appellant liable to pay KShs 1,500,000/= to the respondent and entering judgment against him in spite of the evidence adduced at the hearing. Further that the learned trial magistrate shifted the burden of proof upon the appellant by requiring him to produce an agreement dated 28/11/2017 when the same had been pleaded by the respondent and by relying on the statement of the principal Hutchinson Gathiru Kimaru as a witness when the same had been withdrawn.
9. The appeal was disposed of by way of written submissions which were filed by learned counsels for both parties.
10. Learned counsel for the appellant set out the issues for determination as follows:
a. whether the learned magistrate erred in law and fact by shifting the burden of proof from the respondent to the appellant.
b. whether the learned magistrate erred in law and fact by failing to interpret the clear terms of the agency agreement dated 27/10/2017 and the acknowledgment slip dated 30/12/2017.
c. whether the learned magistrate erred in law and fact by relying on the evidence of a non-existent or recanted witness.
d. whether the learned magistrate erred in law and fact by holding that the appellant had indemnified Hutchinson Gathiru Kimaru against any claim from the respondent.
11. The submissions by learned counsel for both parties are made along these four issues.
12. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A 123 where it was held as follows:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
13. I have considered the grounds of appeal, the submissions by learned counsels for the parties and reviewed and re-examined the case before the trial court and considered the judgment of the trial court.
14. The claim by the respondent against the appellant before the trial court was in the nature of money had and received. In that case the respondent was required to prove that first he was entitled to the money, secondly that the appellant received it and thirdly that such receipt by the appellant was unjust due to a vitiating factor.
15. Although the claim was based on the agreement dated 27/10/2017 which was entered into between the appellant and the respondent on the one hand as agents of Hutchison Gathiru Kimaru for the sale of his parcel of land registration number Mwerua/Kagio/2739, that agreement was not meant to form a contractual relationship between the appellant and the respondent. Rather, it was, as variously acknowledged by both parties herein, between the appellant and the respondent on the one hand as agents for the sale of property and Hutchison Gathiru Kimaru on the other as principal and vendor of the property.
16. In this case, there is no dispute that the appellant received KShs 3,000,000/= as agency fee from one Hutchison Gathiru Kimaru, the seller of the property.
17. The issue for determination is whether the respondent was entitled to half of this money and if so whether retention of the KShs 1,500,000/= by the appellant was unjust and should therefore have been paid over to the respondent.
18. As submitted by learned counsel for the appellant the burden of proof was upon the respondent to prove his case on a balance of probability as extensively set out in the case cited by learned counsel of Manyinsa v Lavington Security Limited [2023] KECA 1376 (KLR).
19. There is no dispute that an agreement dated 27/10/2017 was entered into between the appellant and the respondent on the one hand as agents of Hutchison Gathiru Kimaru for the sale of his parcel of land registration number Mwerua/Kagio/2739. It was the respondent’s case that payment of the commission fee of KShs 3,000,000/= by Hutchison was based on this agreement. The appellant on his part stated that in fact, that agreement was overtaken by another one dated 30/10/2017 which then was the basis of the payment.
20. The learned trial magistrate found that the agreement of 30/10/2017 did not vary the agreement of 27/10/2017 which remained effective as between the appellant and the respondent. I find no reason to fault the learned trial magistrate on that finding for various reasons following.
21. But first, I agree with the appellant that the learned trial magistrate was in error to rely on the statement of the principal Hutchison Gathiru Kimaru because he had withdrawn the same vide his notice dated 12/4/2018 and he also testified in court on 8/11/2018 and reiterated that he had withdrawn as the respondent’s witness. So, the evidence for the respondent was only from himself.
22. In his evidence the respondent who adopted his witness statement dated 16/2/2018 said that he was the one who introduced the appellant who was in company of an advocate called Ngangah to the principal Hutchison who wanted to sell his land.
23. In his evidence through the witness statement dated 31/7/2018 the appellant said that though they made the agency agreement dated 27/10/2017 the respondent and the appellant did not get a purchaser.
24. The issue the is who between the two was telling the truth. The learned trial magistrate believed the respondent and found that if the respondent was not telling the truth, he would not have been part of the acknowledgement of receipt of the agency fee dated 30/12/2017. I find that the learned trial magistrate was correct. Otherwise, why would the respondent have brought him into that acknowledgment if indeed the agreement of 27/10/2017 had been overtaken by the one dated 30/10/2017.
25. The respondent’s evidence that he was the one who introduced the appellant who was together with an advocate called Ngangah to the principal or vendor, Hutchison, who wanted to sell his land and that at that time, the appellant had told him that Bingwa Sacco society limited wanted to purchase such property as the vendor had, was not challenged by the appellant either in his evidence in chief or in cross-examination of the respondent. On his part, the appellant had information that Bingwa Sacco Society Ltd wanted to purchase a piece of land. After meeting the seller, Hutchison together, they drafted the agreement dated 27/10/2017 in Advocate Ikahu Ngangah’s office. What took them to the principal’s property was the information each of them had. It was not some random engagement in speculation on sale of the principal’s property as the appellant wishes to present. It follows that the two acted together, the appellant got the buyer, Bingwa Sacco Society Ltd and the respondent got the seller for the property, Hutchison.
26. I therefore agree with the learned trial magistrate that the appellant wanted to pull a first one on the respondent by introducing the agreement of 30/10/2017. His defence that the transaction for the sale of the land was based on the agreement of 30/10/2017 is misplaced. In the first place, the respondent was not a party to the agreement and so it could not have rescinded the earlier one of 27/10/2017. Secondly, the agreement of 30/10/2017 involved different parties, one of them who was not in the initial agreement namely Magee wa Magee & Co. Advocates and so it could not purport to rescind the one of 27/10/2017 when the respondent had not agreed to the same. There was no consent by the respondent that the later agreement superseded the earlier one nor a common intention between the respondent and the appellant to rescind the earlier agreement.
27. But more telling is the acknowledgment slip dated 30/12/2017. The appellant takes issue with the acknowledgment slip indication that the Agency Agreement was dated 28/11/2017 and that the learned trial magistrate failed to interpret the clear terms expressed therein. The terms of the acknowledgment slip were that it referred to an Agency Agreement dated 28/11/2017. It is clear from the evidence of the parties that there was no agency agreement entered on that date and so that could only have been a typographical error.
28. The acknowledgment slip further indicates that the agreement was between Hutchison Gathiru Kimaru and the agency being Stephen Wachira Mburia, who is the respondent herein and Benson Mwangi Muriithi, who is the appellant herein. There was no other agency agreement entered into by these parties over the sale of Hutchison’s land other than the one dated 27/10/2017. Another term therein is that Benson Mwangi Muriithi who was the recipient of the KShs 3 million agreed to indemnify Hutchinson Gathiru Kimaru against any claim from Stephen Wachira Mburia. Again, this is a clear indication that Stephen Wachira Mburia, the respondent herein was recognized in that acknowledgment. He could only have been recognized because of the agency agreement he had made on 27/10/2017. Finally, the three people who signed the agency agreement of 27/10/2017, that is Stephen Wachira Mburia and Benson Mwangi Muriithi on the one hand and Hutchison Gathiru Kimaru on the other were the same ones who signed this acknowledgment slip. What else could the appellant have been agreeing to indemnify the principal other than that he would give the respondent his fair share of the KShs 3 million and so the respondent would not seek the same from the principal?
29. The respondent did not therefore have to produce any agency agreement dated 28/11/2017 and the learned trial magistrate did not fail to interpret the acknowledgment slip dated 30/12/2017 as submitted by learned counsel for the appellant because there was no such an agreement anywhere. The submission that it related to a different transaction is misplaced because there was no such evidence before the trial court and submissions on appeal cannot take the place of evidence tendered before a trial court.
30. I find that the respondent was able to satisfy the trial court and the learned magistrate correctly arrived at the decision that the respondent was entitled to the KShs 1,500,000/= as his share of the commission paid by Hutchison to the appellant. There is no dispute that the appellant received it and thirdly that such receipt by the appellant was unjust where he clearly agreed to indemnify the principal from any claim arising from the respondent and yet he failed to hand over the respondent’s share to him.
31. In the case of Bid Insurance Brokers Limited v British United Provident Fund [2016] KEHC 1159 (KLR) the High Court considering the issue of restitution as a remedy in law said:
“The remedy of restitution only applies where the Defendant has been unjustly enriched and would only apply where the contract has been set aside. “The essence of restitution” according to Chitty on Contracts, is concerned with whether a claimant can recover a benefit from the Defendant, rather than whether the claimant can be compensated for the loss suffered. Restitutionary remedies are therefore distinct from those which are traditionally available in contract or in tort as was recognized by Lord Wright in the case of FIBROSA SPOLKA AKCYJNA vs. FAIRBAIRN LAWSON COUIBE BARBOUR LIMITED [1943] A.C. 32, 61 –
“It is clear that any civilized 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 not recognized to fall within a third category of the common law which has been called quasi-contract or restitution.”
In FOSKET vs. Mc KROWN [2001] 1AC 102 the House of Lords recognized that restitutionary remedies are available where the Defendant has been unjustly enriched at the expense of the claimant.”
32. In this case, it is apparent that the appellant, in retaining the KShs 1,500,000/= meant to be for the respondent unjustly enriched himself and he is bound to restitute the respondent to the position he ought to have been had the principal paid the money directly to him. I am satisfied that the decision by the learned trial magistrate was correct and the same is affirmed.
33. Consequently, I find that the appeal has not merit and the same is dismissed with costs to the respondent.
34. Orders accordingly.
Dated, Signed and Delivered on the virtual platform Teams this 16th day of June 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Mwagiru for the Appellant.
Munene Muriuki for the Respondent.
Job: Court Assistant.