1. The Appellant herein being dissatisfied with the Judgment that was delivered on 30/05/2023 lodged an appeal to this court challenging the entire Judgment.
2. The appellant advanced the following grounds in the Memorandum of Appeal dated 27th June 2023;
1) The learned trial Magistrate erred in law and in fact in failing to consider the Appellant's Plaint, evidence and submissions thereby occasioning a miscarriage of justice.
2) The learned trial Magistrate erred in law and in fact by failing to consider that the evidence produced by the Respondent did not corroborate her statement and the defence in the suit.
3) The learned trial Magistrate erred in law and in fact by failing to find that the Respondent did not specifically defend the suit.
4) The learned Magistrate erred in law and in fact by wrongly applying the law and dismissing the suit notwithstanding that the Respondent admitted to have taken away the Appellant's consignment, the subject of the suit.
5) The learned Magistrate erred in law and in fact by wrongly dismissing the suit despite the Respondent admitting to have sold the Appellant's consignment in her pleadings and on oath while testifying during the hearing.
6) The learned Magistrate erred in Law in admitted to owing the Appellant in failing to consider that the Respondent thereby arriving at the impugned judgment.
7) The learned trial magistrate erred in law and in fact by dismissing the Appellant's claim.
8) The learned trial Magistrate erred in law and fact by applying the law wrongly thereby arriving at an impugned judgment.
The appellant’s case:
3. The brief facts of the case are that, on or about the 16th of June, 2021 the Appellant sent a consignment of Plastic material from Dar es Salam, Tanzania to Paras Industries located in Nairobi, Kenya ferried by motor Vehicle bearing Tanzanian registration No. T586AZP.
4. The consignment weighed 14,415. Kgs valued at Kshs. 832,000/=. The consignment arrived in Nairobi on the 17th of June, 2021.
5. Upon arrival, the Respondent blocked the offloading of the consignment and in the company of Police Officers, forced the driver to drive the vehicle carrying the consignment to her warehouse.
6. The Respondent forcefully and illegally took the consignment and sold the goods thereof without the Authority, permission and/ or consent of the Appellant.
7. The consignment was meant for a consignee known as Paras Industries.
8. The appellant submits that it is a cardinal principle of civil litigation that a trial court must evaluate and weigh all the evidence adduced whether oral or written.
9. The Appellant provided detailed and credible evidence that a consignment of plastic material, weighing 14,415. Kgs and valued at Kshs. 832,000 as lawfully exported from Dar esSalaam to Nairobi via motor vehicle registration T586AZP according to him.
10. The transportation records, consignment notes, proof of payment and intended delivery to Paras industries were produced in court but were disregarded by the trial Magistrate without reason.
11. The trial court is required to comprehensively evaluate all the evidence adduced including oral and documentary material, before reaching a decision. The failure to do so amounts to an error of law and fact according to him.
12. Reliance is placed in the case of Peters v Sunday Post Ltd 119581 EA 424, the court held that an appellate court is entitled to interfere with a trial court's findings where the latter failed to properly evaluate the evidence.
13. He argues that Appellant's submissions were not considered, contrary to the principle in Kenya Ports Authorities Vs Kuston Ken a Limited 2009 2EA 212 wherein this Court held inter alia that:
"On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence."
14. He submits that the trial magistrate did not engage with critical documents being the copy of cargo manifest, bundle of receipts and photos of the consignment being off loaded in establishing the Appellant's ownership, shipment route and the destination of the consignment. He further argues that the trial magistrate also failed to evaluate the appellant's oral admission.
15. The failure to conduct a holistic evaluation of the Appellant's case amounted to a dereliction of judicial duty.
16. It is submitted that uncorroborated evidence, particularly from a party whose credibility is under question and who fails to call essential witnesses, must be treated with caution.
17. Adverse inference may be drawn from a party's failure to call material witnesses. The trial court accepted the Respondent's version of vents without subjecting it to scrutiny.
18. The Respondent claimed to have acted lawfully but failed to produce any written authority or inventory and did not call any of the police officers allegedly present during the seizure of the goods.
19. Moreover, he submits that she offered no documentation proving legal entitlement to the consignment.
20. Courts are obligated to treat uncorroborated, inconsistent testimony with caution, especially when it seeks to rebut documentary evidence according to him.
21. Where contradictions exist and no proof is offered, the evidence should be rejected as unreliable.
22. He submits that the trial court failed to analyze the Respondent's inconsistencies, nor did it comment on the absence of any documentary support for her version of events.
23. He submits that the Appellant's evidence remained consistent throughout. A proper judicial approach would have rejected the Respondent's evidence and entered judgment for the appellant.
24. He submits that parties are bound by their pleadings, and a party who does not specifically traverse an allegation is deemed to have admitted them.
25. The Respondent neither filed a specific defense addressing the appellant's claim nor denied material facts such as the existence of the consignment, its seizure, or its disposal.
26. It is trite law that a defendant must not only deny the plaintiff's case but must also affirmatively plead and prove any lawful justification relied upon as a defense.
27. It is his case that the Respondent did not raise any specific legal ground, statutory or contractual for taking possession of the goods.
28. The Respondent only claimed that she took possession of the goods as appellant was indebted to her.However,the Respondent had no proof to support her claim. It is trite law that he/she who alleges must prove under Section 107 and 109 of the Evidence Act C p 80 Laws of Kenya.
29. He seek to rely on the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd 120181 eKLRt where the court observed as follows: -
"It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen MutindaMule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in AdetounOladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -
".....it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.
30. Reliance is also placed in The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Anzolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition:-
"In absence of pleadings, evidence, if any, produced by the parties cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support ofthe case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.
31. The Respondent unequivocally admitted in her testimony that she took possession of the consignment and sold it.
32. Her claim that she did so in the presence of police officers and under s me purported belief that the goods were illegally obtained was unaccompanied by any legal basis, ownership documents or court-sanctioned order.
33. However, the court failed to find liability for conversion, a tort triggered by any unauthorized interference with another's property.
34. Conversion is a strict liability tort. Once it is shown that goods were taken or disposed of without lawful authority or consent, the wrongdoer is liable.
35. The trial court wrongly analyzed the issue as if fraud, bad faith, or motive is necessary ignoring the principle of strict liability that applies in conversion claims.
36. The failure to find liability despite there being admitted interference constitutes a misapplication of settled law.
37. No lawful lien, bailment or security was proved. The trial court applied the wrong legal test to an admitted act of conversion, which on its own warrants reversal on appeal.
38. An appellate court will overturn a decision that is plainly wrong, unreasonable or results in a micarriage of justice, especially where the trial court acted on no evidence misdirected itself on the law or failed to apply binding principles trial court's decision was against the weight of the evidence and unsupported by any coherent legal reasoning.
39. The Appellant had established on a balance of probabilities that the consignment was lawfully dispatched, unlawfully diverted and wrongfully disposed of by the Respondent without consent or lawful justification.
40. He submits that the court overlooked credible evidence by the Appellant, accepted an uncorroborated defense, ignored documentary records and failed to apply conversion principles resulting in the dismissal of strong claim.
41. A miscarriage of justice arises where trial court's errors lead to an outcome that is fundamentally unfair.
42. The appellant seeks the following orders:
1) The Appeal be allowed and the Judgment of the lower court delivered on 30th May, 2023 be quashed and set aside.
2) The Respondent's defence be dismissed and the Appellant's Plaint be allowed.
3) Costs of this Appeal and that in the trial court be provided for.
The Respondent’s case;
43. It is her case that in September, 2017, the Appellant contacted the Respondent to inform her that he had made an agreement with Pepsi Company Tanzania ("Pepsi") regarding the sale and purchase of empty plastic crates.
44. The Appellant expressed that he risked losing this business opportunity due to a lack of finances, as he needed to pay a deposit to Pepsi.
45. They agreed that upon the Appellant's return to Nairobi, he would call the Respondent to arrange a meeting that would determine the terms of a loan or investment through which the Respondent would support the Appellant's business venture.
46. The meeting eventually took place at Lexx Restaurant in Nairobi. Participants included the Appellant, the Respondent, the Respondent's husband, ancl Mr. Jacob Mutula.
47. During the meeting, they discussed the amount of money that would be deposited into the Appellant's bank account, agreeing that additional amounts would be provided on a case-by-case basis upon the Appellant's requests.
48. The Respondent argued that it made four deposits to the Appellant's Kenya Commercial Bank Account No. 1114022683 as follows:
a. Kshs. 300,000 on 24th October, 2017; Kshs. 400,000 on 3 rdNovember, 2017; iii. Kshs. 150,000 on 30th November, 2017; and
Kshs. 80,000 on 8111 December, 2017.
49. The Appellant was supposed to repay the total amount by April 2018 but only returned Kshs. 330,000.00, leaving a balance ofKshs. 600,000.00.
50. Starting from January 2018, the Appellant began giving various excuses when the Respondent inquired about the status of the business and the repayments due.
51. Eventually, he stopped answering her calls and blocked her number. The Respondent later discovered that the Appellant continued his business of purchasing plastic materials from Pepsi and delivering them to Industrial Area in Nairobi.
52. In June 2021, she learned that the Appellant was scheduled to deliver a consignment of plastic materials.
53. After some negotiation with the delivery personnel and the consignee, the Appellant and Respondent came to an agreement that the Respondent would take and sell the consignment.It was also agreed that she would cover the transportation costs, and she paid the driver Kshs. 46,000.00 for the delivery.
54. Eventually, the Respondent sold the consignment for Kshs. 727,952.00 but incurred expenses of Kshs. 92 000.00 in the process, leaving her with a balance of Kshs. 635,952.00.From this amount, she retained Kshs. 600,000.00 as repayment for the debt owed to her by the Appellant. She stated that she was willing and ready to pay the remaining Kshs. 35 952.00 whenever the Appellant requested it.
55. The Respondent denied any allegations of illegally confiscating the Appellant-s goods and actually noted that the Appellant had initiated criminal proceedings against her based on similar allegations made in the trial court being ,Makadara MCCR No. 1727 0/2021.
56. In support of her Defence, the Respondent relied on the Appellant's Bank Statements with respect to his Kenya Commercial Bank Account No. 1114022683 held at Moi Avenue Branch in Nairobi which she secured through an order in Makadara MCCR No. 1727 of 2021.
57. During the hearing, it turned out that the details as to the weight of the goods and the consignee are at odds with the Appellant's case.
58. The Appellant attempted to explain that the name Neema Gryson refers to the Appellant's wife who is also his business partner and that they use the said name for purposes of shipping and/or transportation of the goods from Tanzania to Kenya.
59. He argues that during the hearing the Respondent did not adduce any sufficient evidence to the contrary other than relying on the technicality of the name used to transport the consignment.
60. It was argued that ordinarily, in business parlance, cross border shippers/traders use names of licensed companies or people who are licensed to transport their goods across border and that alone cannot divest them of ownership of their goods.
61. On one hand the Appellant claimed that the tonnage in the cargo manifest must have been interfered with by the clearing agents at the border where the same was issued. When pressed in cross-examination, the Appellant claimed that additional cargo was added after the subject lorry crossed into Kenya.
62. The driver of the vehicle that ferried the consignment however testified that no additional cargo was added to his vehicle after departing Tanzania.
63. The Trial Court in its determination made a finding that it was upon the Plaintiff to prove to this Court that the consignment herein belonged to him.
64. Although the Plaintiff testified that the cargo belonged to him, the documents brought before this court tell a totally different story.
65. The Cargo manifest produced in this case dated 16th June, 2021 indicates that the consignor was Neema Gyson while the consignee was Paras Industries.
66. The Defendant referred to three different cases on this point in ELRC CAUSE NO. 1902 OF 2016 DONALD ELIAKIM OHON VS HABO GROUP OF COMPANIES LIMITED & ANOTHER in which the court was categorical that a party claiming ownership of goods must provide evidence to prove such ownership.
67. PW1 testified that Neema Gryson was his wife and business partner and that they use the said name for the purpose of shipping and/or transportation of the goods from Tanzania to Kenya.
68. In his submissions dated 13 th April, 2023, the Plaintiff submitted that business parlance, cross border shippers use names of licensed companies or people who are licensed to transport their goods and thus this cannot divest them of their goods.
69. The Plaintiff had relied on one of the so-called registered companies, no evidence was tendered to demonstrate that Neema Gryson was one such registered person.
70. The Plaintiff did not plead in his plaint that he made use of a third party to ship the plastic raw materials.
71. The other evidence that the Plaintiff presented to prove ownership of the consignment was the testimony of PW4. It is trite law that when oral evidence comes up against documentary evidence then the Court puts reliance on documentary evidence.
72. The only documentary evidence produced in this case to prove ownership was a manifest dated 16th June, 2021 which indicated that the consignor was Neema Gryson while the consignee was Paras Industries.
73. The Plaintiff herein is neither Neema Gryson nor Paras Industries and therefore the plaintiff has no legal capacity to sue the Defendant.
74. The only other party that would have any claim on the subject goods was Paras Industries being the consignee of the goods who were not parties to the suit.
75. No evidence was tendered on the part of Paras Industries despite the fact that it was the beneficiary of the consignment sent by Neema Gryson.
76. The appellant did not have the legal capacity to sue with respect to goods belonging to a third party and as a consequence, the suit is hereby dismissed.
77. The Trial Court dismissed the Appellant's suit on the basis that the Appellant lacked the legal capacity to institute the suit as he had not shown that he was the owner of the goods that were the subject matter of the suit.
78. According to the Cargo Manifest dated 17th June, 2021 that was produced by the Appellant that the said goods were being transported at the behest of Neema Gryson for the benefit of Paras Industries.
79. It is only either Neema Gryson or Paras Industries that had the legal capacity to sue on the basis that had been alleged by the Appellant.
80. No evidence of marriage between the Appellant and Neema Gryson was tendered by the appellant.No evidence that there was an agreement between the Appellant and Neema Gryson for use of Neema Gryson's name as consignor was produced.
81. No document was produced to show that Neema Gryson was a registered licensee allowed to do cross border shipping.No evidence that Neema Gryson authorized the Appellant to file the suit claiming for the subject goods.Paras Industries as the beneficial owners of the said goods did not lead any evidence on the ownership of the goods.
82. The Black's Law Dictionary, 9 th Edition at page 1026 defines locus standi as "the right to bring an action or to be heard in a given forum ". Therefore, it is the right to institute a cause of action because of a vested interest. It not only signifies a right to be heard, but also a person must have sufficiency of interest to sustain his standing to sue in Court of Law. Locus standi therefore means a right to appear in Court and conversely to say that a person has no locus standi means that he has no right to appear or be heard in such and such proceedings.
83. Once the Court determined that the Appellant did not have the legal capacity to sustain the suit, then the only option it had was to dismiss the suit.
84. The Trial Court could then not proceed to determine the merits of a case that had been improperly brought.
85. In Daykio Plantations Limited v National Bank of Kenya Limited & 2 Others [20191 eKLR where the Court discussed locus standi as follows:
"It is therefore evident that locus standi is the right to appear and he heard in Court or other proceedings and literally, it means 'a place of standing'. Therefore, if a party is found to have no locus standi, then it means he/she cannot be heard even on whether or not he has a case worth listening to.
86. Reliance is also placed on the case of Civil Case No. 13 of2001; KhelefKhalifa El-Busaidy v Commissioner ofLands& 2 Others [2002] eKLR where the High Court while canvassing the issue of locus standi stated thus:
"...for an individual to have a locus standi, he must have an interest either vested or contingent in the subject matter before the court, which interest must be a legal one. Such interest must be above that of other members ofthe public in general. '
87. The Supreme Court of Kenya in Macharia & another v Director ofPublic Prosecutions & others (Petition 9 (EOII) of
2022) [20221 KESC 61 (KLR) (7 October 2022) (Ruling) cited with authority the Court of Appeal decision in Civil Appeal No. 290 of 2012 MumoMatemu v Trusted Society of Human Rights Alliance & S Others 120131 eKLR that:
"A suit in Court is a 'solemn' rocess 'owned' solely by the parties. This is the reason whv there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it..."
Analysis and determination;
88. Being a first appeal, this court has the power to relooked at and analyze the evidence and the case that was before the trial court, and arrived at its own finding.
89. This must however, be done within the framework of the principles set out in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
90. The court has looked at the record of appeal, the Memorandum of Appeal and the rival submissions and formed the opinion that the issues for determination are:
1) Whether or not the appeal has merit.
2) Who shall bear the costs.
91. In determining the first issue, The court has to satisfy itself on the question whether or not the appellant had locus standi to institute the suit in the trial court.
92. Locus standi is a point of law that goes to the root of the court’s jurisdiction to entertain a certain party. It has an impact on the jurisdiction of the court and as such the issue should be resolved in limine.
93. In the absence of capacity and locus standi, the entire proceedings herein are incompetent and ought to be struck out. The cases of Bridge Hotel Ltd v Wilfred Mutiso Lai Jesus Celebration Center [2016] eKLR, and Republic v Registrar of Societies Ex-parte Narok Muslim Welfare Association [2017] eKLR speak to this.
94. Parties are bound by their pleadings. The court notes that the appellant pleaded in the plaint that he is the one who consigned the goods that formed the subject of the dispute. He did not plead that the goods were consigned by his spouse.
95. The evidence that was tendered in the form of a consigner's manifest does not show the name of the appellant.
96. The appellant did not tender any evidence to demonstrate that the lady in the consignment document was his spouse through a marriage certificate.
97. He did not produce a trading license or an import export license that would have probably assisted the appellant to demonstrate that he had locus standi.
98. From the foregoing, it is clear that the ownership of the disputed goods was not proven by the appellant.
99. Section 19 of Sale of Goods Act CAP 31: Property in specific or ascertained goods passes when intended to pass
(1) Where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms…
100. The statement that the Appellant recorded with the police mentioned that he is married but did not mention to who.In the Civil suit he introduces a wife without proof of marriage.
101. Although the Appellant testified that the cargo which forms the subject matter of this appeal belonged to him, the documents that are before this court show that the consignment belonged to a third party.
102. The Cargo manifest dated 16th June, 2021 indicates that the consignor was Neema Gyson while the consignee was Paras Industries.The tax invoice dated 25.3.21 refers to Neema Gyson and not the appellant.
103. Though the driver confirmed that the goods belonged to the appellant this could not form the basis of resolving the issue of the ownership of the goods in the face of The Best evidence rule where documents speak otherwise.
104. The fact that one is married to a contracting party cannot form the basis of introducing a spouse as a party to a contract. To allow such an arrangement would spell doom to the law of contract and in particular the requirement that there must be a meeting of minds before a contract can be said to be completed.
105. It would interfere with the rights and responsibilities of contracting parties. A party who is desirous of entering into a contract with a third-party should do so within the known legal parameters of the law of Contract.
106. Further, to allow spouses to be made parties into a contract that has already been executed by the other spouse with a 3rd party would have an unnecessary impact on the much protected matrimonial property right front.
107. In any event, it is trite law that parties are bound by their pleadings, and the court cannot rewrite a contract for parties. This is particularly the case when it comes to the addition or removal of contracting parties.This is only allowed through novation which is not the case in the instant situation.
108. The Plaint did not make any reference to the said Neema Gyson.The Appellant lacked the locus standi to move the trial court taking away the jurisdiction of the trial court.
Costs;
109. The Civil Procedure Act (Cap. 21, Laws of Kenya), the primary law of Judicial Procedure in civil matters, thus stipulates (Section 27(1)):
“Subject to such conditions and limitations’ as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order”
The respondent is entitled to costs
Determination:
The appeal lacks merit.
Orders;
The appeal is dismissed with costs.
2. The appellant advanced the following grounds in the Memorandum of Appeal dated 27th June 2023;
1) The learned trial Magistrate erred in law and in fact in failing to consider the Appellant's Plaint, evidence and submissions thereby occasioning a miscarriage of justice.
2) The learned trial Magistrate erred in law and in fact by failing to consider that the evidence produced by the Respondent did not corroborate her statement and the defence in the suit.
3) The learned trial Magistrate erred in law and in fact by failing to find that the Respondent did not specifically defend the suit.
4) The learned Magistrate erred in law and in fact by wrongly applying the law and dismissing the suit notwithstanding that the Respondent admitted to have taken away the Appellant's consignment, the subject of the suit.
5) The learned Magistrate erred in law and in fact by wrongly dismissing the suit despite the Respondent admitting to have sold the Appellant's consignment in her pleadings and on oath while testifying during the hearing.
6) The learned Magistrate erred in Law in admitted to owing the Appellant in failing to consider that the Respondent thereby arriving at the impugned judgment.
7) The learned trial magistrate erred in law and in fact by dismissing the Appellant's claim.
8) The learned trial Magistrate erred in law and fact by applying the law wrongly thereby arriving at an impugned judgment.
The appellant’s case:
3. The brief facts of the case are that, on or about the 16th of June, 2021 the Appellant sent a consignment of Plastic material from Dar es Salam, Tanzania to Paras Industries located in Nairobi, Kenya ferried by motor Vehicle bearing Tanzanian registration No. T586AZP.
4. The consignment weighed 14,415. Kgs valued at Kshs. 832,000/=. The consignment arrived in Nairobi on the 17th of June, 2021.
5. Upon arrival, the Respondent blocked the offloading of the consignment and in the company of Police Officers, forced the driver to drive the vehicle carrying the consignment to her warehouse.
6. The Respondent forcefully and illegally took the consignment and sold the goods thereof without the Authority, permission and/ or consent of the Appellant.
7. The consignment was meant for a consignee known as Paras Industries.
8. The appellant submits that it is a cardinal principle of civil litigation that a trial court must evaluate and weigh all the evidence adduced whether oral or written.
9. The Appellant provided detailed and credible evidence that a consignment of plastic material, weighing 14,415. Kgs and valued at Kshs. 832,000 as lawfully exported from Dar esSalaam to Nairobi via motor vehicle registration T586AZP according to him.
10. The transportation records, consignment notes, proof of payment and intended delivery to Paras industries were produced in court but were disregarded by the trial Magistrate without reason.
11. The trial court is required to comprehensively evaluate all the evidence adduced including oral and documentary material, before reaching a decision. The failure to do so amounts to an error of law and fact according to him.
12. Reliance is placed in the case of Peters v Sunday Post Ltd 119581 EA 424, the court held that an appellate court is entitled to interfere with a trial court's findings where the latter failed to properly evaluate the evidence.
13. He argues that Appellant's submissions were not considered, contrary to the principle in Kenya Ports Authorities Vs Kuston Ken a Limited 2009 2EA 212 wherein this Court held inter alia that:
"On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence."
14. He submits that the trial magistrate did not engage with critical documents being the copy of cargo manifest, bundle of receipts and photos of the consignment being off loaded in establishing the Appellant's ownership, shipment route and the destination of the consignment. He further argues that the trial magistrate also failed to evaluate the appellant's oral admission.
15. The failure to conduct a holistic evaluation of the Appellant's case amounted to a dereliction of judicial duty.
16. It is submitted that uncorroborated evidence, particularly from a party whose credibility is under question and who fails to call essential witnesses, must be treated with caution.
17. Adverse inference may be drawn from a party's failure to call material witnesses. The trial court accepted the Respondent's version of vents without subjecting it to scrutiny.
18. The Respondent claimed to have acted lawfully but failed to produce any written authority or inventory and did not call any of the police officers allegedly present during the seizure of the goods.
19. Moreover, he submits that she offered no documentation proving legal entitlement to the consignment.
20. Courts are obligated to treat uncorroborated, inconsistent testimony with caution, especially when it seeks to rebut documentary evidence according to him.
21. Where contradictions exist and no proof is offered, the evidence should be rejected as unreliable.
22. He submits that the trial court failed to analyze the Respondent's inconsistencies, nor did it comment on the absence of any documentary support for her version of events.
23. He submits that the Appellant's evidence remained consistent throughout. A proper judicial approach would have rejected the Respondent's evidence and entered judgment for the appellant.
24. He submits that parties are bound by their pleadings, and a party who does not specifically traverse an allegation is deemed to have admitted them.
25. The Respondent neither filed a specific defense addressing the appellant's claim nor denied material facts such as the existence of the consignment, its seizure, or its disposal.
26. It is trite law that a defendant must not only deny the plaintiff's case but must also affirmatively plead and prove any lawful justification relied upon as a defense.
27. It is his case that the Respondent did not raise any specific legal ground, statutory or contractual for taking possession of the goods.
28. The Respondent only claimed that she took possession of the goods as appellant was indebted to her.However,the Respondent had no proof to support her claim. It is trite law that he/she who alleges must prove under Section 107 and 109 of the Evidence Act C p 80 Laws of Kenya.
29. He seek to rely on the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd 120181 eKLRt where the court observed as follows: -
"It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen MutindaMule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in AdetounOladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -
".....it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.
30. Reliance is also placed in The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Anzolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition:-
"In absence of pleadings, evidence, if any, produced by the parties cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support ofthe case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.
31. The Respondent unequivocally admitted in her testimony that she took possession of the consignment and sold it.
32. Her claim that she did so in the presence of police officers and under s me purported belief that the goods were illegally obtained was unaccompanied by any legal basis, ownership documents or court-sanctioned order.
33. However, the court failed to find liability for conversion, a tort triggered by any unauthorized interference with another's property.
34. Conversion is a strict liability tort. Once it is shown that goods were taken or disposed of without lawful authority or consent, the wrongdoer is liable.
35. The trial court wrongly analyzed the issue as if fraud, bad faith, or motive is necessary ignoring the principle of strict liability that applies in conversion claims.
36. The failure to find liability despite there being admitted interference constitutes a misapplication of settled law.
37. No lawful lien, bailment or security was proved. The trial court applied the wrong legal test to an admitted act of conversion, which on its own warrants reversal on appeal.
38. An appellate court will overturn a decision that is plainly wrong, unreasonable or results in a micarriage of justice, especially where the trial court acted on no evidence misdirected itself on the law or failed to apply binding principles trial court's decision was against the weight of the evidence and unsupported by any coherent legal reasoning.
39. The Appellant had established on a balance of probabilities that the consignment was lawfully dispatched, unlawfully diverted and wrongfully disposed of by the Respondent without consent or lawful justification.
40. He submits that the court overlooked credible evidence by the Appellant, accepted an uncorroborated defense, ignored documentary records and failed to apply conversion principles resulting in the dismissal of strong claim.
41. A miscarriage of justice arises where trial court's errors lead to an outcome that is fundamentally unfair.
42. The appellant seeks the following orders:
1) The Appeal be allowed and the Judgment of the lower court delivered on 30th May, 2023 be quashed and set aside.
2) The Respondent's defence be dismissed and the Appellant's Plaint be allowed.
3) Costs of this Appeal and that in the trial court be provided for.
The Respondent’s case;
43. It is her case that in September, 2017, the Appellant contacted the Respondent to inform her that he had made an agreement with Pepsi Company Tanzania ("Pepsi") regarding the sale and purchase of empty plastic crates.
44. The Appellant expressed that he risked losing this business opportunity due to a lack of finances, as he needed to pay a deposit to Pepsi.
45. They agreed that upon the Appellant's return to Nairobi, he would call the Respondent to arrange a meeting that would determine the terms of a loan or investment through which the Respondent would support the Appellant's business venture.
46. The meeting eventually took place at Lexx Restaurant in Nairobi. Participants included the Appellant, the Respondent, the Respondent's husband, ancl Mr. Jacob Mutula.
47. During the meeting, they discussed the amount of money that would be deposited into the Appellant's bank account, agreeing that additional amounts would be provided on a case-by-case basis upon the Appellant's requests.
48. The Respondent argued that it made four deposits to the Appellant's Kenya Commercial Bank Account No. 1114022683 as follows:
a. Kshs. 300,000 on 24th October, 2017; Kshs. 400,000 on 3 rdNovember, 2017; iii. Kshs. 150,000 on 30th November, 2017; and
Kshs. 80,000 on 8111 December, 2017.
49. The Appellant was supposed to repay the total amount by April 2018 but only returned Kshs. 330,000.00, leaving a balance ofKshs. 600,000.00.
50. Starting from January 2018, the Appellant began giving various excuses when the Respondent inquired about the status of the business and the repayments due.
51. Eventually, he stopped answering her calls and blocked her number. The Respondent later discovered that the Appellant continued his business of purchasing plastic materials from Pepsi and delivering them to Industrial Area in Nairobi.
52. In June 2021, she learned that the Appellant was scheduled to deliver a consignment of plastic materials.
53. After some negotiation with the delivery personnel and the consignee, the Appellant and Respondent came to an agreement that the Respondent would take and sell the consignment.It was also agreed that she would cover the transportation costs, and she paid the driver Kshs. 46,000.00 for the delivery.
54. Eventually, the Respondent sold the consignment for Kshs. 727,952.00 but incurred expenses of Kshs. 92 000.00 in the process, leaving her with a balance of Kshs. 635,952.00.From this amount, she retained Kshs. 600,000.00 as repayment for the debt owed to her by the Appellant. She stated that she was willing and ready to pay the remaining Kshs. 35 952.00 whenever the Appellant requested it.
55. The Respondent denied any allegations of illegally confiscating the Appellant-s goods and actually noted that the Appellant had initiated criminal proceedings against her based on similar allegations made in the trial court being ,Makadara MCCR No. 1727 0/2021.
56. In support of her Defence, the Respondent relied on the Appellant's Bank Statements with respect to his Kenya Commercial Bank Account No. 1114022683 held at Moi Avenue Branch in Nairobi which she secured through an order in Makadara MCCR No. 1727 of 2021.
57. During the hearing, it turned out that the details as to the weight of the goods and the consignee are at odds with the Appellant's case.
58. The Appellant attempted to explain that the name Neema Gryson refers to the Appellant's wife who is also his business partner and that they use the said name for purposes of shipping and/or transportation of the goods from Tanzania to Kenya.
59. He argues that during the hearing the Respondent did not adduce any sufficient evidence to the contrary other than relying on the technicality of the name used to transport the consignment.
60. It was argued that ordinarily, in business parlance, cross border shippers/traders use names of licensed companies or people who are licensed to transport their goods across border and that alone cannot divest them of ownership of their goods.
61. On one hand the Appellant claimed that the tonnage in the cargo manifest must have been interfered with by the clearing agents at the border where the same was issued. When pressed in cross-examination, the Appellant claimed that additional cargo was added after the subject lorry crossed into Kenya.
62. The driver of the vehicle that ferried the consignment however testified that no additional cargo was added to his vehicle after departing Tanzania.
63. The Trial Court in its determination made a finding that it was upon the Plaintiff to prove to this Court that the consignment herein belonged to him.
64. Although the Plaintiff testified that the cargo belonged to him, the documents brought before this court tell a totally different story.
65. The Cargo manifest produced in this case dated 16th June, 2021 indicates that the consignor was Neema Gyson while the consignee was Paras Industries.
66. The Defendant referred to three different cases on this point in ELRC CAUSE NO. 1902 OF 2016 DONALD ELIAKIM OHON VS HABO GROUP OF COMPANIES LIMITED & ANOTHER in which the court was categorical that a party claiming ownership of goods must provide evidence to prove such ownership.
67. PW1 testified that Neema Gryson was his wife and business partner and that they use the said name for the purpose of shipping and/or transportation of the goods from Tanzania to Kenya.
68. In his submissions dated 13 th April, 2023, the Plaintiff submitted that business parlance, cross border shippers use names of licensed companies or people who are licensed to transport their goods and thus this cannot divest them of their goods.
69. The Plaintiff had relied on one of the so-called registered companies, no evidence was tendered to demonstrate that Neema Gryson was one such registered person.
70. The Plaintiff did not plead in his plaint that he made use of a third party to ship the plastic raw materials.
71. The other evidence that the Plaintiff presented to prove ownership of the consignment was the testimony of PW4. It is trite law that when oral evidence comes up against documentary evidence then the Court puts reliance on documentary evidence.
72. The only documentary evidence produced in this case to prove ownership was a manifest dated 16th June, 2021 which indicated that the consignor was Neema Gryson while the consignee was Paras Industries.
73. The Plaintiff herein is neither Neema Gryson nor Paras Industries and therefore the plaintiff has no legal capacity to sue the Defendant.
74. The only other party that would have any claim on the subject goods was Paras Industries being the consignee of the goods who were not parties to the suit.
75. No evidence was tendered on the part of Paras Industries despite the fact that it was the beneficiary of the consignment sent by Neema Gryson.
76. The appellant did not have the legal capacity to sue with respect to goods belonging to a third party and as a consequence, the suit is hereby dismissed.
77. The Trial Court dismissed the Appellant's suit on the basis that the Appellant lacked the legal capacity to institute the suit as he had not shown that he was the owner of the goods that were the subject matter of the suit.
78. According to the Cargo Manifest dated 17th June, 2021 that was produced by the Appellant that the said goods were being transported at the behest of Neema Gryson for the benefit of Paras Industries.
79. It is only either Neema Gryson or Paras Industries that had the legal capacity to sue on the basis that had been alleged by the Appellant.
80. No evidence of marriage between the Appellant and Neema Gryson was tendered by the appellant.No evidence that there was an agreement between the Appellant and Neema Gryson for use of Neema Gryson's name as consignor was produced.
81. No document was produced to show that Neema Gryson was a registered licensee allowed to do cross border shipping.No evidence that Neema Gryson authorized the Appellant to file the suit claiming for the subject goods.Paras Industries as the beneficial owners of the said goods did not lead any evidence on the ownership of the goods.
82. The Black's Law Dictionary, 9 th Edition at page 1026 defines locus standi as "the right to bring an action or to be heard in a given forum ". Therefore, it is the right to institute a cause of action because of a vested interest. It not only signifies a right to be heard, but also a person must have sufficiency of interest to sustain his standing to sue in Court of Law. Locus standi therefore means a right to appear in Court and conversely to say that a person has no locus standi means that he has no right to appear or be heard in such and such proceedings.
83. Once the Court determined that the Appellant did not have the legal capacity to sustain the suit, then the only option it had was to dismiss the suit.
84. The Trial Court could then not proceed to determine the merits of a case that had been improperly brought.
85. In Daykio Plantations Limited v National Bank of Kenya Limited & 2 Others [20191 eKLR where the Court discussed locus standi as follows:
"It is therefore evident that locus standi is the right to appear and he heard in Court or other proceedings and literally, it means 'a place of standing'. Therefore, if a party is found to have no locus standi, then it means he/she cannot be heard even on whether or not he has a case worth listening to.
86. Reliance is also placed on the case of Civil Case No. 13 of2001; KhelefKhalifa El-Busaidy v Commissioner ofLands& 2 Others [2002] eKLR where the High Court while canvassing the issue of locus standi stated thus:
"...for an individual to have a locus standi, he must have an interest either vested or contingent in the subject matter before the court, which interest must be a legal one. Such interest must be above that of other members ofthe public in general. '
87. The Supreme Court of Kenya in Macharia & another v Director ofPublic Prosecutions & others (Petition 9 (EOII) of
2022) [20221 KESC 61 (KLR) (7 October 2022) (Ruling) cited with authority the Court of Appeal decision in Civil Appeal No. 290 of 2012 MumoMatemu v Trusted Society of Human Rights Alliance & S Others 120131 eKLR that:
"A suit in Court is a 'solemn' rocess 'owned' solely by the parties. This is the reason whv there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it..."
Analysis and determination;
88. Being a first appeal, this court has the power to relooked at and analyze the evidence and the case that was before the trial court, and arrived at its own finding.
89. This must however, be done within the framework of the principles set out in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
90. The court has looked at the record of appeal, the Memorandum of Appeal and the rival submissions and formed the opinion that the issues for determination are:
1) Whether or not the appeal has merit.
2) Who shall bear the costs.
91. In determining the first issue, The court has to satisfy itself on the question whether or not the appellant had locus standi to institute the suit in the trial court.
92. Locus standi is a point of law that goes to the root of the court’s jurisdiction to entertain a certain party. It has an impact on the jurisdiction of the court and as such the issue should be resolved in limine.
93. In the absence of capacity and locus standi, the entire proceedings herein are incompetent and ought to be struck out. The cases of Bridge Hotel Ltd v Wilfred Mutiso Lai Jesus Celebration Center [2016] eKLR, and Republic v Registrar of Societies Ex-parte Narok Muslim Welfare Association [2017] eKLR speak to this.
94. Parties are bound by their pleadings. The court notes that the appellant pleaded in the plaint that he is the one who consigned the goods that formed the subject of the dispute. He did not plead that the goods were consigned by his spouse.
95. The evidence that was tendered in the form of a consigner's manifest does not show the name of the appellant.
96. The appellant did not tender any evidence to demonstrate that the lady in the consignment document was his spouse through a marriage certificate.
97. He did not produce a trading license or an import export license that would have probably assisted the appellant to demonstrate that he had locus standi.
98. From the foregoing, it is clear that the ownership of the disputed goods was not proven by the appellant.
99. Section 19 of Sale of Goods Act CAP 31: Property in specific or ascertained goods passes when intended to pass
(1) Where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms…
100. The statement that the Appellant recorded with the police mentioned that he is married but did not mention to who.In the Civil suit he introduces a wife without proof of marriage.
101. Although the Appellant testified that the cargo which forms the subject matter of this appeal belonged to him, the documents that are before this court show that the consignment belonged to a third party.
102. The Cargo manifest dated 16th June, 2021 indicates that the consignor was Neema Gyson while the consignee was Paras Industries.The tax invoice dated 25.3.21 refers to Neema Gyson and not the appellant.
103. Though the driver confirmed that the goods belonged to the appellant this could not form the basis of resolving the issue of the ownership of the goods in the face of The Best evidence rule where documents speak otherwise.
104. The fact that one is married to a contracting party cannot form the basis of introducing a spouse as a party to a contract. To allow such an arrangement would spell doom to the law of contract and in particular the requirement that there must be a meeting of minds before a contract can be said to be completed.
105. It would interfere with the rights and responsibilities of contracting parties. A party who is desirous of entering into a contract with a third-party should do so within the known legal parameters of the law of Contract.
106. Further, to allow spouses to be made parties into a contract that has already been executed by the other spouse with a 3rd party would have an unnecessary impact on the much protected matrimonial property right front.
107. In any event, it is trite law that parties are bound by their pleadings, and the court cannot rewrite a contract for parties. This is particularly the case when it comes to the addition or removal of contracting parties.This is only allowed through novation which is not the case in the instant situation.
108. The Plaint did not make any reference to the said Neema Gyson.The Appellant lacked the locus standi to move the trial court taking away the jurisdiction of the trial court.
Costs;
109. The Civil Procedure Act (Cap. 21, Laws of Kenya), the primary law of Judicial Procedure in civil matters, thus stipulates (Section 27(1)):
“Subject to such conditions and limitations’ as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order”
The respondent is entitled to costs
Determination:
The appeal lacks merit.
Orders;
The appeal is dismissed with costs.