Brief Background;
1. The genesis of this case is that Respondent herein had filed a claim against the Appellant together with another vide plaint dated 19th September, 2019 and filed in court on the same date, whereupon he claimed for the following prayers.
a). An order of permanent injunction restraining the defendant from accessing, selling, disposing and/or transferring the said motor vehicle Registration No.KCV 99111 to third parties the detriment and loss of the plaintiff.
b). An order directing the DCIO Kenyenya not to release motor vehicle Registration No. KCV 99111 until the 1St defendant has refunded the plaintiff Kshs. 2, 000,0001=.
c). An order to the defendant to pay the plaintiff Kshs 2,000,000/=. Which the plaintiff had incurred on the purchase of motor vehicle registration No.KCV 99111 together with interest.
d). Costs of the suit and any other relief.
2. The appellant being aggrieved and/or dissatisfied with the judgment dated and delivered on the 24th January 2022 preferred an appeal to this honorable court against whole of the said decision on the following grounds:
i. The learned trial magistrate erred in law when she awarded judgment in favour the respondent in the sum of Kshs. 1,241,000/= without any factual and/or legal basis whatsoever.
ii. The learned trial magistrate erred in law and fact in entering judgment in favour of the respondent for such amounts, which the respondent had not pleaded in the plaint or at all and thus occasioning a miscarriage of justice.
iii. That learned trial magistrate clearly misdirected herself in and in fact when she entered judgment in favour of the respondent, notwithstanding the material discrepancies discernable from the evidence on record, particularly as concerns the cause of action.
iv. The learned trial magistrate misdirected herself in law and fact when she made a finding that oral evidence adduced by the respondent perse amounted to strict proof of liquidated damages, in flagrant contravention of the established principles of law.
v. That learned trial magistrate erred in law and fact when she made a finding that the allegation of the respondent of being next of kin amounted to evidence of being the owner of the money.
vi. The learned trial magistrate erred in law and fact when she made a finding that the appellant was a beneficiary of Kshs. 231,000 purportedly deposited to Associated Motors Limited by respondent's brother.
vii. The learned trial magistrate erred in law when she disregards the fact that there was no agreement between the appellant and the respondent.
viii. The learned trial magistrate erred in law and fact when she disregarded the evidence adduced by the appellant in respect of the material facts.
ix. The learned trial magistrate and fact by converting herself and/or conducting the respondent's case on behalf of the respondent and thereby openly becoming bias in her judgment.
x. The learned trial magistrate erred in law and fact by drawing her own claim and awarding and/or entering judgment on prayers which never been prayed for.
xi. The learned trial magistrate failed to properly or at all, evaluates and/or analyzes the submissions made on the part of the appellant and thus reached a wrong decision.
xii. The judgment and/or decision of the learned trial magistrate herein, is contrary to the weight of the evidence on record and hence manifestly unsafe.
3. The appellant herein prays for the following orders:
a) The appeal herein be allowed and the decision and decree of the Chief Magistrate Court be set aside in its entirety.
b) That the respondent's suit in the Chief Magistrate that is Ogembo CMCC No. 211 of 2019 be dismissed.
c) That the costs of this appeal and the Chief Magistrate be borne by the respondent.
d) Such further and/or other relief as the court may deem necessary.
The Appellant's case:
4. It is the Appellants’ case that from the evidence of PW1, he alleges to have had an oral agreement that he would use the appellant's account herein to purchase a motor vehicle. He told the court that he processed a loan and gave the appellant the money. He produced a copy of bank statement from his account in evidence.
5. The respondent herein did not produce any documents to prove existence of an agreement between them, relating to purchase of motor vehicle, nor did he call any witness to support the existence of an oral agreement between them.
6. Reliance is placed in Section 107(1) of the Evidence Act as well as the decision of the Court of Appeal at Nairobi in Civil Appeal number 297/2015 between Mbuthia Macharia vs. Anna Mutua Ndwiga that:
"The legal burden is the burden of proof which remains constant throughout a trial, it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial he has failed to establish these to the approved standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.
7. The Appellant argues that there was no written and/or oral agreement for the respondent to use the appellant as his agent and/or for the appellant to buy the purported motor vehicle for the respondent herein.
8. The respondent herein at paragraph 19 of the plaint pleaded for a declaration that the defendant is a trustee for the plaintiff in respect of motor vehicle registration no. KCV 99111 until he pays the plaintiff Kshs. 2000, 000/= which is a special damages, and must therefore specifically be proved.
9. The evidence of PW1 and PW2, is purely speculative, it has no legs to stand on. In the case of "kenya breweries limited kiambu vs. general transport agency limited, the court said,
"It is the duty of the Plaintiff to prove its claim for damages as pleaded. It is not enough simply to put before the court a great deal of material and expect the court to make a finding in his favour.
It was said by Lord Goddard, CJ in Bonham Carters Hyde Park Hotel Limited 11948] 64TR 177 —
The Plaintiff must understand that if they bring actions for damages it is for them to prove damage. It is not enough to write down particulars and, so to speak, throw them at the head of the court, saying, "This is what I have lost, I ask you to give me these damages." They have to prove it."
10. Reliance is also placed in the case of Ouma vs. Nairobi City Council [1976JKLR 297 at 304 —"I am not obliged to go through the charade of making my own discounts from the expert's figure. I therefore make no award in favor of the Plaintiff for the claimed loss of profits.
11. The Appellant further argues that special damages must be both pleaded and proved, before they can be awarded by the Court as settled in the case of Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985/ KLR 716, at P. 717, and 721 where the Learned Judges of Appeal — Kneller, Nyarangi JJA, and Chesoni Ag. J.A. — held:
Special damages must not only be specifically claimed (pleaded) but also strictly proved. _. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The decree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.
12. It is not enough for a party to provide a statement of the appellant and allege that the money inside was deposited by him, the Respondent herein was tasked to produce a deposit slip even one showing that he ever deposited money into the account of the Appellant herein in which case he failed.
13. In the case of Ryce Motors Limited & Another —vs- Muriuki (1995 - 1992) 2 EA 363 it was stated thus; -
"The Learned Judge had before him by way of the Plaintiff's evidence exhibits 2 and 3 as proof of alleged loss of profits. Exhibit 2 consisted of figures jotted down on pieces of papers showing dates and figures. Nothing about these pieces of paper can be accepted as correct accounting practice to enable the Court to say these are the accounts upon which the Court can act..."
14. According to him, the court should not award special damages of Kshs.1,241,000 since the claim is not supported by any evidence. The respondent had the duty of adducing credible evidence to the satisfaction of the Court of proof of the same.
15. The Respondent herein testified that he took a loan and deposited a sum of Ksh. 1,000,500/= shilling into the bank account at consolidated bank Nakuru Branch account no 10161206001791 account name Omweno Nyamibane John (The appellant herein) on the 10th July, 2018.The respondent further stated that he went for a loan from a Sacco whereby he obtained Kshs. 100,000/= which he gave the appellant but failed to produce any documentary evidence to that effect. He maintains that the Respondent never gave him any money.
16. It is his evidence that the purported Kshs. 1,000,500/= was deposited into the appellant's Bank account at consolidated Nakuru Branch by the appellant himself.
17. The appellant had his own source of money for his business from the sale of trees, motor cycles and others which generated money for businesses; which money he deposited in his own bank account for his own business.
18. He obtained money and on the 10th July 2018 he deposited kshs.1, 000,500/= He produced a copy of declaration form for deposit of Kshs. 1,000,500= dated 10th July 2018 as D. exhibit la and Cash Received Advice (deposit slip) for Kshs. 1000, 5001= as D. exhibit lb. These documents demonstrate that the appellant was the depositor and not the appellant any money.
19. PW2 Omayio Onchieku Stephen a brother to the plaintiff/respondent herein told the court that his brother PW1(the respondent) gave him Bank account number 0800864002 account held at Diamond Trust Bank; where he deposited a sum of Kshs. 231,000/=.
20. From the Bank details tendered to court, the said Bank account is held by associated motors whereupon the respondent bought motor vehicle registration no KCX 188K which motor vehicle is not the subject of these proceedings. There was no single evidence to confirm that the appellant herein ever benefited from the said money.
21. He is of the view that the trial magistrate erred in awarding the respondent a sum of kshs.231,000/= this money was not pleaded and was not proved.
22. According to him it is clear is that the appellant herein had a contract with NIC bank that paid for him sum of Kshs. 3,984,000.00 For the 1 Appellant to take the said motor vehicle. Refer to D.EXb 6.
23. From the evidence of the appellant, the appellant had an agreement with Associated motors ltd whereupon he paid money for purchase of chassis and facilitation of registration of the motor vehicle as demonstrated by exhibit D EXb 3 a,b & c and D EXb 4a&b.
24. According to him it is not enough for the Respondent to just plead that the appellant was a trustee for the respondent and it is obviously clear from documentary evidence that the /appellant had secured a loan and he made all other payments for the motor vehicle to be purchased.
25. It is worthy to note that; the mere fact that the appellant's act of nominating the respondent as next of kin and entrusting him to run and supervise his motor vehicle while he was away in Uganda for studies does not make the respondent a joint owner of the motor vehicle.
26. Section 107(i) of the Evidence Act provides that:
"However desires any court to give judgment to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist "
In such cases, the burden of proof lies with whoever would want the court to find in their favour in support of their claims.
Section 108 of Evidence Act, further states that:
"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were riven on either side. -
27. It is his case that on a balance of probability the appellant's case against respondent meet the threshold required to prove a case in civil proceedings. As was held by Kimaru, J in 'William Kabogo Gitau vs. Georae Thuo & 2 Others L2010] 1 KLR 526 stated that:
"In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred."
28. In Evans Nyakwana vs. Cleophas Bwana Ongaro (2015) eKLR it was similarly held that:
"As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden ... is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person...The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.
29. According to him, the money awarded in the trial magistrate court was not pleaded and the award was illegal not founded in law.
Respondent's case:
30. Aggrieved by the judgment the Appellant filed a Memorandum of Appeal dated the 27th day of January 2022 on the 14th day of February 2022 challenging the trial Court's finding on the whole judgment. The grounds of appeal are as outlined therein.
31. The Parties herein are cousins. Through the mutual trust of family ties with the Appellant both parties agreed to open a joint account for purposes of purchasing a motor vehicle in both names of the Appellant and the Respondent to be a signatory and/or next of kin on beneficial interests' basis as he was to acquire a loan to facilitate the purchase.
32. They opened an account with Consolidated Bank Nakuru branch that is account number 10161206001791 in the name of the appellant. It is his case that the bank records show the name of the Respondent in the large cash transaction declaration form with consolidated bank as a direct and/or indirect beneficiary of the funds.
33. He argues that as a result of an agreement between them although it was not written the plaintiff then took a loan of Kenya shillings one million (kshs 1,000,000/-) only from Mwalimu sacco deposited the same in his kcb bank account number 1167839706 before transferring the same into the consolidated bank account.
34. The appellant used the motor-vehicle for some time and unfortunately before long, on the 27th day of August 2019, the respondent was maliciously arrested and the motor-vehicle which would later be the subject of litigation before the lower court was impounded by the DCIO kenyenya police station since it was claimed that the respondent was unlawfully using the suit motor-vehicle.
35. According to the Respondent,although there existed no express contract between parties herein, the conduct of the parties herein are of the nature that impliedly there existed a contract and indeed the record of appeal reveals a large cash transaction declaration form from the consolidated bank Nakuru branch with a deposited Kshs 1,000,500/- for purposes of the money is for savings for future business.
36. The declaration form clearly states that the respondent herein is a beneficiary of the said funds whether direct or indirect. The declaration form clearly states in clear and un¬equivocal terms that the source of the funds is a loan from another account that is account number 1167839706 Kcb bank.
37. According to him, this particular account number belongs to the respondent herein. As such it is clear that the source of the money deposited by the appellant in the consolidated bank is a loan received from the respondent.
38. The respondent in one way or the other is a beneficiary of the said funds. This is a clear manifestation of an implied contract. Reliance is placed in the case of Lamb vs. Evans (1893) 1 Ch 218
39. After purchasing the motor-vehicle, the same incurred other expenses to build the body so that it can be effectively in use. The appellant withdrew some money from the consolidated bank to use the same to build the body through associated motors Eldoret and also Sahota body builders.
40. The respondent realized that the appellant was in a deficit although he had deposited the whole purchase price of the lorry. Parties again entered into another verbal agreement to secure another loan to complete the process.
41. The respondent proceeded to take a loan of Mwalimu Sacco of kshs 100,000/- only. further, he requested his brother Omayio Onchieku Stephen who also secured a loan of kshs 231,000/- only.
42. This money was sent to an account with DTB BANK in respect with the suit motor-vehicle via an account transfer. It was borrowed for the benefit of the parties herein to acquire the said motor-vehicle and in good condition with a well-built body. Eventually after all this, the appellant obtained the said motor vehicle only for the respondent to be followed by malicious arrests.
43. The Respondent seeks to rely on a conviction in Ogembo Criminal case number 2313 of 2019, wherein the appellant was convicted of the offence of stealing by servant.
44. The appellant has not explained why the declaration form indicates that the source of money deposited in the consolidated bank is a loan that was taken from the bank account taken by the respondent.
45. The appellant has not refuted the fact that the money deposited to DTB BANK was in favor of the appellant for body building of the suit motor-vehicle.
Analysis and determination:
46. In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA 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.
This principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
47. The appellant and the respondent herein are cousins. Through the mutual trust of family ties with the appellant both parties agreed to open a bank account for purposes of purchasing a motor vehicle and that a joint account would be in both names of the appellant and the respondent to be a signatory and/or next of kin on beneficial interests' basis as he was to acquire a loan to facilitate the purchase.
48. An account was opened with consolidated bank Nakuru branch that is account number 10161206001791 in the name of the appellant.
49. The plaintiff took a loan of kshs 1,000,000/- from Mwalimu sacco deposited the same in his KCK bank account number 1167839706 before transferring the same into the consolidated bank account.
50. There was no written agreement to regulate their transactions.
51. The record at page 43 shows a large cash transaction declaration form from the consolidated bank Nakuru branch being a deposit of Kshs.1,000,500.
52. PW1 told the court that he processed a loan and gave it to the appellant. He produced a copy of bank statement from his account.
53. The declaration form states that the respondent herein is a beneficiary of the said funds whether direct or indirect. The declaration form further states in clear and un¬equivocal terms that the source of the funds is a loan from another account that is ACCOUNT NUMBER 1167839706 KCB BANK. It is not in dispute that this account belongs to the respondent herein. As such it is clear that the source of the money deposited by the appellant in the consolidated bank is a loan received from the respondent.
54. On the other hand the purported Kshs. 1,000,500/= was deposited into the appellant's Bank account at consolidated Nakuru Branch by the appellant himself. He told the court that had his own source of money from Businesses whereby he obtained money and on the 10th July 2018 he deposited kshs.1, 000,500/=.
55. He produced a copy of declaration form for deposit of Kshs. 1,000,5001= dated 10th July 2018 as D. exhibit and Cash Received Advice (deposit slip) for Kshs. 1000, 5001= as D. exhibit lb. All this shows the appellant was the depositor. (refer to page 138 and 139 of the record of appeal)
56. In RTS Flexible Systems Ltd vs. Molkerel Alois Muller GmbH & Co, KG (UK Production) (2010) UKSC14, [45] the Supreme Court of the United Kingdom stated that: -
…The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. even if certain terms of economic or other significance to the parties have not been finalized, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.”
57. Legal authors in Chesire, Fifoot and Formstons, The Law of Contract, 14th Editionstated in pages 34 and 35 that: -
The first task of the plaintiff is to prove the presence of a definite offer made…. Proof of an offer to enter into legal relations upon definite terms must be followed by the production of evidence from which the courts may infer an intention by the offeree to accept that offer.
58. In Abdulkadir Shariff Abdirahim & Another vs. Awo Sharriff Mohammed t/a A. S. Mohammed Investments (2014) eKLR the Court of Appeal held that: -
There is no general rule of law that all agreements must be in writing. The numerous advantages of a written agreement notwithstanding, all that the law requires is that certain specific agreements must be in writing or witnessed by some written note or memorandum. Section 3(1) of the Law of Contract Act is one such provision.
59. On implied contracts, the Court of Appeal in Ali Abdi Mohamed vs. Kenya Shell & Company Limited (2017) eKLR referred to the following persuasive decisions: -
…. In Lamb v. Evans [1893]1 Ch 218, Bowen LJ stated:
The common law, it is true, treats the matter from the point of view of an implied contract, and assumes that there is a promise to do that which is part of the bargain, or which can be fairly implied as part of the good faith which is necessary to make the bargain effectual. What is an implied contract or an implied promise in law? It is that promise which the law implies and authorizes you to infer in order to give the transaction that effect which the parties must have intended it to have, and without which it would be futile.”
60. Bingham LJ in The Aramis [1989] 1 Lloyd’s Rep 213 made some general observations about the circumstances in which a contract might be implied. At p.224 col. 1, he said:
“As the question whether or not any such contract is to be implied is one of fact, its answer must depend upon the circumstances of each particular case - and the different sets of facts which arise for consideration in these cases are legion. However, I also agree that no such contract should be implied on the facts of any given cases unless it is necessary to do so; necessary that is to say, in order to give business reality to a transaction and to create enforceable obligations between parties who are dealing with the one another in circumstances in which one would expect that business reality and those enforceable obligations to exist.”
61. In the instant suit, the foregoing financial transactions leave this court with a persuasion that the parties herein had an implied contractual relationship that involved the deposit of funds into the Appellants bank account,transactions in the bank account, the acquisition of the suit motor vehicle.
62. Unfortunately, the details, terms and conditions of the unwritten agreement are unclear as a result of which the parties have ended up in a dispute that culminated in the trial court’s judgment.
63. In the primary suit, the respondent prayed for special damages under prayers and in particular that “An order to the defendant to pay the plaintiff Kshs. 2,000,000/= which the plaintiff had incurred on the purchase of motor vehicle registration No.KCV 991H together with interest”.
64. Special Damages must be both pleaded and proved, before they can be awarded by the Court. Suffice it to quote from the decision of our Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985/ KLR 716, at P. 717, and 721 where the Learned Judges of Appeal — Kneller, Nyarangi JJA, and Chesoni Ag. J.A. — held:
Special damages must not only be specifically claimed (pleaded) but also strictly proved. _. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The decree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.
65. The plaintiff had sought the following orders:
a) An order of permanent injunction restraining the defendant from accessing, selling, disposing and or transferring the said motor vehicle KCV 991H to third parties the detriment and loss of the Plaintiff.
b) An Order directing the DCIO Kenyanya not to release motor vehicle registration No. KCV 991H until the Is defendant has refunded the plaintiff Kshs. 2,000,000/=.
c) An order to the 1st Defendant to pay the Plaintiff Ksh. 2,000,000 which the plaintiff had incurred on the purchase of motor vehicle registration No. KCV 991H together with interest.
d) Costs of this suit
e) Such order or further relief that this Honourable court may deem fit and just to grant.
66. He pleaded in the plaint that,The Plaintiff further avers that an account with consolidated Bank Nakuru Branch wherein the Plaintiff deposited Kshs. 1,000,000/= (Kenya Shillings One Million).
67. That we agreed that we open an account in the names of the is Defendant and I deposit Kenya Shillings One Million (Kshs: 1,000,000/) to make a statement for purposes of buying purchasing a motor vehicle more particularly a lorry.
68. That after opening an account with consolidated Bank Nakuru Branch Account No. 1016120600179 belongs together 1 deposited Kshs. 1,000,000/as agreed between the Plaintiff and 1s Defendant.
69. That after making a statement with my money we jointly bought the above referred Motor vehicle with an agreement that I will manage the said motor vehicle until I recover my money which I had invested for the purchase of the said Motor vehicle.
70. The Plaintiff avers that he is a joint owner of the said Isuzu lorry registration No.KCV 991H by virtue that he has contributed money to a tune of Kshs, 2,000,000/=.
71. In its judgment,The court made a finding that;
A. The defendant do pay the plaintiff 1,241,000.
B. Costs of the suit be awarded to the plaintiff.
72. Section 107(1) of the Evidence Act as well as the decision of the Court of Appeal at Nairobi in Civil Appeal number 297/2015 between Mbuthia Macharia vs. Anna Mutua Ndwiga that:
"the legal burden is the burden of proof which remains constant throughout a trial, it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial he has failed to establish these to the approved standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.
73. PW2 Omayio Onchieku Stephen a brother to the plaintiff/respondent herein told the court that his brother PW1(the respondent) gave him Bank account number 0800864002 account held at Diamond Trust Bank; where he deposited a sum of Kshs. 231,000/=. The account holder is and/or was associated motors limited.
74. The respondent herein at paragraph 19 of the plaint pleaded for a declaration that the defendant is a trustee for the plaintiff in respect of motor vehicle registration no. KCV 99111 until he pays the plaintiff Kshs. 2,000,000/=.The Respondent did not tender evidence that would have entitled him to the declaration as prayed.
75. From the pleadings herein, the respondent alleges to have incurred money in the purchase of this motor vehicle.
76. From the evidence, the appellant herein had a contract with NIC bank that paid for him sum of kshs. 3,984,000.00 For the appellant to take the said motor vehicle per D.EXb 6.
77. The appellant had an agreement with Associated motors ltd whereupon he paid money for purchase of chassis and facilitation of registration of the motor vehicle as demonstrated by D EXb 3 a,b & c and D EXb 4a&b.
78. From my analysis of the evidence that was tendered by the Respondent, the Respondent did not prove the special damages of Kshs. 2,000,000/= for the purchase of motor vehicle registration No.KCV 991H.
79. It is this court’s finding that the Respondent did not prove his case within Section 107 of The Evidence Act.
80. It is not enough for the respondent to just plead that the appellant was a trustee for the respondent.It is obviously clear from documentary evidence that the /appellant had secured a loan and he made all other payments for the motor vehicle to be purchased.
81. I find that the trial magistrate erred in awarding the Respondent the sum of Kshs. 231,000 which money was not pleaded and was not proved.
82. The trial court awarded special damages in error and without evidence to prove the same and I so hold.
83. The learned trial magistrate erred in law and fact by drawing her own claim and awarding and/or entering judgment on prayers which never been prayed for.
84. The mere fact that the appellant's act of nominating the respondent as next of kin and entrusting him to run and supervise his motor vehicle while he was away in Uganda for studies does not make the respondent a joint owner of the motor vehicle.
85. The judgment of the learned trial magistrate herein, is contrary to the weight of the evidence on record and hence manifestly unsafe.
Disposition:
86. As was held by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 stated that: "In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred."
87. On a balance of probability, it is my finding that the appellant's case against respondent meet the threshold required to prove a case in civil proceedings.
Order:
a) The appeal herein is allowed and the decision and decree of the Chief Magistrate Court be set aside in its entirety.
b) The Respondent's suit in the Chief Magistrate that is Ogembo CMCC No. 211 of 2019 be dismissed.
c) Costs of this appeal and -the Chief Magistrate be borne by the respondent.
1. The genesis of this case is that Respondent herein had filed a claim against the Appellant together with another vide plaint dated 19th September, 2019 and filed in court on the same date, whereupon he claimed for the following prayers.
a). An order of permanent injunction restraining the defendant from accessing, selling, disposing and/or transferring the said motor vehicle Registration No.KCV 99111 to third parties the detriment and loss of the plaintiff.
b). An order directing the DCIO Kenyenya not to release motor vehicle Registration No. KCV 99111 until the 1St defendant has refunded the plaintiff Kshs. 2, 000,0001=.
c). An order to the defendant to pay the plaintiff Kshs 2,000,000/=. Which the plaintiff had incurred on the purchase of motor vehicle registration No.KCV 99111 together with interest.
d). Costs of the suit and any other relief.
2. The appellant being aggrieved and/or dissatisfied with the judgment dated and delivered on the 24th January 2022 preferred an appeal to this honorable court against whole of the said decision on the following grounds:
i. The learned trial magistrate erred in law when she awarded judgment in favour the respondent in the sum of Kshs. 1,241,000/= without any factual and/or legal basis whatsoever.
ii. The learned trial magistrate erred in law and fact in entering judgment in favour of the respondent for such amounts, which the respondent had not pleaded in the plaint or at all and thus occasioning a miscarriage of justice.
iii. That learned trial magistrate clearly misdirected herself in and in fact when she entered judgment in favour of the respondent, notwithstanding the material discrepancies discernable from the evidence on record, particularly as concerns the cause of action.
iv. The learned trial magistrate misdirected herself in law and fact when she made a finding that oral evidence adduced by the respondent perse amounted to strict proof of liquidated damages, in flagrant contravention of the established principles of law.
v. That learned trial magistrate erred in law and fact when she made a finding that the allegation of the respondent of being next of kin amounted to evidence of being the owner of the money.
vi. The learned trial magistrate erred in law and fact when she made a finding that the appellant was a beneficiary of Kshs. 231,000 purportedly deposited to Associated Motors Limited by respondent's brother.
vii. The learned trial magistrate erred in law when she disregards the fact that there was no agreement between the appellant and the respondent.
viii. The learned trial magistrate erred in law and fact when she disregarded the evidence adduced by the appellant in respect of the material facts.
ix. The learned trial magistrate and fact by converting herself and/or conducting the respondent's case on behalf of the respondent and thereby openly becoming bias in her judgment.
x. The learned trial magistrate erred in law and fact by drawing her own claim and awarding and/or entering judgment on prayers which never been prayed for.
xi. The learned trial magistrate failed to properly or at all, evaluates and/or analyzes the submissions made on the part of the appellant and thus reached a wrong decision.
xii. The judgment and/or decision of the learned trial magistrate herein, is contrary to the weight of the evidence on record and hence manifestly unsafe.
3. The appellant herein prays for the following orders:
a) The appeal herein be allowed and the decision and decree of the Chief Magistrate Court be set aside in its entirety.
b) That the respondent's suit in the Chief Magistrate that is Ogembo CMCC No. 211 of 2019 be dismissed.
c) That the costs of this appeal and the Chief Magistrate be borne by the respondent.
d) Such further and/or other relief as the court may deem necessary.
The Appellant's case:
4. It is the Appellants’ case that from the evidence of PW1, he alleges to have had an oral agreement that he would use the appellant's account herein to purchase a motor vehicle. He told the court that he processed a loan and gave the appellant the money. He produced a copy of bank statement from his account in evidence.
5. The respondent herein did not produce any documents to prove existence of an agreement between them, relating to purchase of motor vehicle, nor did he call any witness to support the existence of an oral agreement between them.
6. Reliance is placed in Section 107(1) of the Evidence Act as well as the decision of the Court of Appeal at Nairobi in Civil Appeal number 297/2015 between Mbuthia Macharia vs. Anna Mutua Ndwiga that:
"The legal burden is the burden of proof which remains constant throughout a trial, it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial he has failed to establish these to the approved standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.
7. The Appellant argues that there was no written and/or oral agreement for the respondent to use the appellant as his agent and/or for the appellant to buy the purported motor vehicle for the respondent herein.
8. The respondent herein at paragraph 19 of the plaint pleaded for a declaration that the defendant is a trustee for the plaintiff in respect of motor vehicle registration no. KCV 99111 until he pays the plaintiff Kshs. 2000, 000/= which is a special damages, and must therefore specifically be proved.
9. The evidence of PW1 and PW2, is purely speculative, it has no legs to stand on. In the case of "kenya breweries limited kiambu vs. general transport agency limited, the court said,
"It is the duty of the Plaintiff to prove its claim for damages as pleaded. It is not enough simply to put before the court a great deal of material and expect the court to make a finding in his favour.
It was said by Lord Goddard, CJ in Bonham Carters Hyde Park Hotel Limited 11948] 64TR 177 —
The Plaintiff must understand that if they bring actions for damages it is for them to prove damage. It is not enough to write down particulars and, so to speak, throw them at the head of the court, saying, "This is what I have lost, I ask you to give me these damages." They have to prove it."
10. Reliance is also placed in the case of Ouma vs. Nairobi City Council [1976JKLR 297 at 304 —"I am not obliged to go through the charade of making my own discounts from the expert's figure. I therefore make no award in favor of the Plaintiff for the claimed loss of profits.
11. The Appellant further argues that special damages must be both pleaded and proved, before they can be awarded by the Court as settled in the case of Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985/ KLR 716, at P. 717, and 721 where the Learned Judges of Appeal — Kneller, Nyarangi JJA, and Chesoni Ag. J.A. — held:
Special damages must not only be specifically claimed (pleaded) but also strictly proved. _. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The decree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.
12. It is not enough for a party to provide a statement of the appellant and allege that the money inside was deposited by him, the Respondent herein was tasked to produce a deposit slip even one showing that he ever deposited money into the account of the Appellant herein in which case he failed.
13. In the case of Ryce Motors Limited & Another —vs- Muriuki (1995 - 1992) 2 EA 363 it was stated thus; -
"The Learned Judge had before him by way of the Plaintiff's evidence exhibits 2 and 3 as proof of alleged loss of profits. Exhibit 2 consisted of figures jotted down on pieces of papers showing dates and figures. Nothing about these pieces of paper can be accepted as correct accounting practice to enable the Court to say these are the accounts upon which the Court can act..."
14. According to him, the court should not award special damages of Kshs.1,241,000 since the claim is not supported by any evidence. The respondent had the duty of adducing credible evidence to the satisfaction of the Court of proof of the same.
15. The Respondent herein testified that he took a loan and deposited a sum of Ksh. 1,000,500/= shilling into the bank account at consolidated bank Nakuru Branch account no 10161206001791 account name Omweno Nyamibane John (The appellant herein) on the 10th July, 2018.The respondent further stated that he went for a loan from a Sacco whereby he obtained Kshs. 100,000/= which he gave the appellant but failed to produce any documentary evidence to that effect. He maintains that the Respondent never gave him any money.
16. It is his evidence that the purported Kshs. 1,000,500/= was deposited into the appellant's Bank account at consolidated Nakuru Branch by the appellant himself.
17. The appellant had his own source of money for his business from the sale of trees, motor cycles and others which generated money for businesses; which money he deposited in his own bank account for his own business.
18. He obtained money and on the 10th July 2018 he deposited kshs.1, 000,500/= He produced a copy of declaration form for deposit of Kshs. 1,000,500= dated 10th July 2018 as D. exhibit la and Cash Received Advice (deposit slip) for Kshs. 1000, 5001= as D. exhibit lb. These documents demonstrate that the appellant was the depositor and not the appellant any money.
19. PW2 Omayio Onchieku Stephen a brother to the plaintiff/respondent herein told the court that his brother PW1(the respondent) gave him Bank account number 0800864002 account held at Diamond Trust Bank; where he deposited a sum of Kshs. 231,000/=.
20. From the Bank details tendered to court, the said Bank account is held by associated motors whereupon the respondent bought motor vehicle registration no KCX 188K which motor vehicle is not the subject of these proceedings. There was no single evidence to confirm that the appellant herein ever benefited from the said money.
21. He is of the view that the trial magistrate erred in awarding the respondent a sum of kshs.231,000/= this money was not pleaded and was not proved.
22. According to him it is clear is that the appellant herein had a contract with NIC bank that paid for him sum of Kshs. 3,984,000.00 For the 1 Appellant to take the said motor vehicle. Refer to D.EXb 6.
23. From the evidence of the appellant, the appellant had an agreement with Associated motors ltd whereupon he paid money for purchase of chassis and facilitation of registration of the motor vehicle as demonstrated by exhibit D EXb 3 a,b & c and D EXb 4a&b.
24. According to him it is not enough for the Respondent to just plead that the appellant was a trustee for the respondent and it is obviously clear from documentary evidence that the /appellant had secured a loan and he made all other payments for the motor vehicle to be purchased.
25. It is worthy to note that; the mere fact that the appellant's act of nominating the respondent as next of kin and entrusting him to run and supervise his motor vehicle while he was away in Uganda for studies does not make the respondent a joint owner of the motor vehicle.
26. Section 107(i) of the Evidence Act provides that:
"However desires any court to give judgment to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist "
In such cases, the burden of proof lies with whoever would want the court to find in their favour in support of their claims.
Section 108 of Evidence Act, further states that:
"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were riven on either side. -
27. It is his case that on a balance of probability the appellant's case against respondent meet the threshold required to prove a case in civil proceedings. As was held by Kimaru, J in 'William Kabogo Gitau vs. Georae Thuo & 2 Others L2010] 1 KLR 526 stated that:
"In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred."
28. In Evans Nyakwana vs. Cleophas Bwana Ongaro (2015) eKLR it was similarly held that:
"As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden ... is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person...The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.
29. According to him, the money awarded in the trial magistrate court was not pleaded and the award was illegal not founded in law.
Respondent's case:
30. Aggrieved by the judgment the Appellant filed a Memorandum of Appeal dated the 27th day of January 2022 on the 14th day of February 2022 challenging the trial Court's finding on the whole judgment. The grounds of appeal are as outlined therein.
31. The Parties herein are cousins. Through the mutual trust of family ties with the Appellant both parties agreed to open a joint account for purposes of purchasing a motor vehicle in both names of the Appellant and the Respondent to be a signatory and/or next of kin on beneficial interests' basis as he was to acquire a loan to facilitate the purchase.
32. They opened an account with Consolidated Bank Nakuru branch that is account number 10161206001791 in the name of the appellant. It is his case that the bank records show the name of the Respondent in the large cash transaction declaration form with consolidated bank as a direct and/or indirect beneficiary of the funds.
33. He argues that as a result of an agreement between them although it was not written the plaintiff then took a loan of Kenya shillings one million (kshs 1,000,000/-) only from Mwalimu sacco deposited the same in his kcb bank account number 1167839706 before transferring the same into the consolidated bank account.
34. The appellant used the motor-vehicle for some time and unfortunately before long, on the 27th day of August 2019, the respondent was maliciously arrested and the motor-vehicle which would later be the subject of litigation before the lower court was impounded by the DCIO kenyenya police station since it was claimed that the respondent was unlawfully using the suit motor-vehicle.
35. According to the Respondent,although there existed no express contract between parties herein, the conduct of the parties herein are of the nature that impliedly there existed a contract and indeed the record of appeal reveals a large cash transaction declaration form from the consolidated bank Nakuru branch with a deposited Kshs 1,000,500/- for purposes of the money is for savings for future business.
36. The declaration form clearly states that the respondent herein is a beneficiary of the said funds whether direct or indirect. The declaration form clearly states in clear and un¬equivocal terms that the source of the funds is a loan from another account that is account number 1167839706 Kcb bank.
37. According to him, this particular account number belongs to the respondent herein. As such it is clear that the source of the money deposited by the appellant in the consolidated bank is a loan received from the respondent.
38. The respondent in one way or the other is a beneficiary of the said funds. This is a clear manifestation of an implied contract. Reliance is placed in the case of Lamb vs. Evans (1893) 1 Ch 218
39. After purchasing the motor-vehicle, the same incurred other expenses to build the body so that it can be effectively in use. The appellant withdrew some money from the consolidated bank to use the same to build the body through associated motors Eldoret and also Sahota body builders.
40. The respondent realized that the appellant was in a deficit although he had deposited the whole purchase price of the lorry. Parties again entered into another verbal agreement to secure another loan to complete the process.
41. The respondent proceeded to take a loan of Mwalimu Sacco of kshs 100,000/- only. further, he requested his brother Omayio Onchieku Stephen who also secured a loan of kshs 231,000/- only.
42. This money was sent to an account with DTB BANK in respect with the suit motor-vehicle via an account transfer. It was borrowed for the benefit of the parties herein to acquire the said motor-vehicle and in good condition with a well-built body. Eventually after all this, the appellant obtained the said motor vehicle only for the respondent to be followed by malicious arrests.
43. The Respondent seeks to rely on a conviction in Ogembo Criminal case number 2313 of 2019, wherein the appellant was convicted of the offence of stealing by servant.
44. The appellant has not explained why the declaration form indicates that the source of money deposited in the consolidated bank is a loan that was taken from the bank account taken by the respondent.
45. The appellant has not refuted the fact that the money deposited to DTB BANK was in favor of the appellant for body building of the suit motor-vehicle.
Analysis and determination:
46. In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA 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.
This principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
47. The appellant and the respondent herein are cousins. Through the mutual trust of family ties with the appellant both parties agreed to open a bank account for purposes of purchasing a motor vehicle and that a joint account would be in both names of the appellant and the respondent to be a signatory and/or next of kin on beneficial interests' basis as he was to acquire a loan to facilitate the purchase.
48. An account was opened with consolidated bank Nakuru branch that is account number 10161206001791 in the name of the appellant.
49. The plaintiff took a loan of kshs 1,000,000/- from Mwalimu sacco deposited the same in his KCK bank account number 1167839706 before transferring the same into the consolidated bank account.
50. There was no written agreement to regulate their transactions.
51. The record at page 43 shows a large cash transaction declaration form from the consolidated bank Nakuru branch being a deposit of Kshs.1,000,500.
52. PW1 told the court that he processed a loan and gave it to the appellant. He produced a copy of bank statement from his account.
53. The declaration form states that the respondent herein is a beneficiary of the said funds whether direct or indirect. The declaration form further states in clear and un¬equivocal terms that the source of the funds is a loan from another account that is ACCOUNT NUMBER 1167839706 KCB BANK. It is not in dispute that this account belongs to the respondent herein. As such it is clear that the source of the money deposited by the appellant in the consolidated bank is a loan received from the respondent.
54. On the other hand the purported Kshs. 1,000,500/= was deposited into the appellant's Bank account at consolidated Nakuru Branch by the appellant himself. He told the court that had his own source of money from Businesses whereby he obtained money and on the 10th July 2018 he deposited kshs.1, 000,500/=.
55. He produced a copy of declaration form for deposit of Kshs. 1,000,5001= dated 10th July 2018 as D. exhibit and Cash Received Advice (deposit slip) for Kshs. 1000, 5001= as D. exhibit lb. All this shows the appellant was the depositor. (refer to page 138 and 139 of the record of appeal)
56. In RTS Flexible Systems Ltd vs. Molkerel Alois Muller GmbH & Co, KG (UK Production) (2010) UKSC14, [45] the Supreme Court of the United Kingdom stated that: -
…The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. even if certain terms of economic or other significance to the parties have not been finalized, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.”
57. Legal authors in Chesire, Fifoot and Formstons, The Law of Contract, 14th Editionstated in pages 34 and 35 that: -
The first task of the plaintiff is to prove the presence of a definite offer made…. Proof of an offer to enter into legal relations upon definite terms must be followed by the production of evidence from which the courts may infer an intention by the offeree to accept that offer.
58. In Abdulkadir Shariff Abdirahim & Another vs. Awo Sharriff Mohammed t/a A. S. Mohammed Investments (2014) eKLR the Court of Appeal held that: -
There is no general rule of law that all agreements must be in writing. The numerous advantages of a written agreement notwithstanding, all that the law requires is that certain specific agreements must be in writing or witnessed by some written note or memorandum. Section 3(1) of the Law of Contract Act is one such provision.
59. On implied contracts, the Court of Appeal in Ali Abdi Mohamed vs. Kenya Shell & Company Limited (2017) eKLR referred to the following persuasive decisions: -
…. In Lamb v. Evans [1893]1 Ch 218, Bowen LJ stated:
The common law, it is true, treats the matter from the point of view of an implied contract, and assumes that there is a promise to do that which is part of the bargain, or which can be fairly implied as part of the good faith which is necessary to make the bargain effectual. What is an implied contract or an implied promise in law? It is that promise which the law implies and authorizes you to infer in order to give the transaction that effect which the parties must have intended it to have, and without which it would be futile.”
60. Bingham LJ in The Aramis [1989] 1 Lloyd’s Rep 213 made some general observations about the circumstances in which a contract might be implied. At p.224 col. 1, he said:
“As the question whether or not any such contract is to be implied is one of fact, its answer must depend upon the circumstances of each particular case - and the different sets of facts which arise for consideration in these cases are legion. However, I also agree that no such contract should be implied on the facts of any given cases unless it is necessary to do so; necessary that is to say, in order to give business reality to a transaction and to create enforceable obligations between parties who are dealing with the one another in circumstances in which one would expect that business reality and those enforceable obligations to exist.”
61. In the instant suit, the foregoing financial transactions leave this court with a persuasion that the parties herein had an implied contractual relationship that involved the deposit of funds into the Appellants bank account,transactions in the bank account, the acquisition of the suit motor vehicle.
62. Unfortunately, the details, terms and conditions of the unwritten agreement are unclear as a result of which the parties have ended up in a dispute that culminated in the trial court’s judgment.
63. In the primary suit, the respondent prayed for special damages under prayers and in particular that “An order to the defendant to pay the plaintiff Kshs. 2,000,000/= which the plaintiff had incurred on the purchase of motor vehicle registration No.KCV 991H together with interest”.
64. Special Damages must be both pleaded and proved, before they can be awarded by the Court. Suffice it to quote from the decision of our Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985/ KLR 716, at P. 717, and 721 where the Learned Judges of Appeal — Kneller, Nyarangi JJA, and Chesoni Ag. J.A. — held:
Special damages must not only be specifically claimed (pleaded) but also strictly proved. _. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The decree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.
65. The plaintiff had sought the following orders:
a) An order of permanent injunction restraining the defendant from accessing, selling, disposing and or transferring the said motor vehicle KCV 991H to third parties the detriment and loss of the Plaintiff.
b) An Order directing the DCIO Kenyanya not to release motor vehicle registration No. KCV 991H until the Is defendant has refunded the plaintiff Kshs. 2,000,000/=.
c) An order to the 1st Defendant to pay the Plaintiff Ksh. 2,000,000 which the plaintiff had incurred on the purchase of motor vehicle registration No. KCV 991H together with interest.
d) Costs of this suit
e) Such order or further relief that this Honourable court may deem fit and just to grant.
66. He pleaded in the plaint that,The Plaintiff further avers that an account with consolidated Bank Nakuru Branch wherein the Plaintiff deposited Kshs. 1,000,000/= (Kenya Shillings One Million).
67. That we agreed that we open an account in the names of the is Defendant and I deposit Kenya Shillings One Million (Kshs: 1,000,000/) to make a statement for purposes of buying purchasing a motor vehicle more particularly a lorry.
68. That after opening an account with consolidated Bank Nakuru Branch Account No. 1016120600179 belongs together 1 deposited Kshs. 1,000,000/as agreed between the Plaintiff and 1s Defendant.
69. That after making a statement with my money we jointly bought the above referred Motor vehicle with an agreement that I will manage the said motor vehicle until I recover my money which I had invested for the purchase of the said Motor vehicle.
70. The Plaintiff avers that he is a joint owner of the said Isuzu lorry registration No.KCV 991H by virtue that he has contributed money to a tune of Kshs, 2,000,000/=.
71. In its judgment,The court made a finding that;
A. The defendant do pay the plaintiff 1,241,000.
B. Costs of the suit be awarded to the plaintiff.
72. Section 107(1) of the Evidence Act as well as the decision of the Court of Appeal at Nairobi in Civil Appeal number 297/2015 between Mbuthia Macharia vs. Anna Mutua Ndwiga that:
"the legal burden is the burden of proof which remains constant throughout a trial, it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial he has failed to establish these to the approved standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.
73. PW2 Omayio Onchieku Stephen a brother to the plaintiff/respondent herein told the court that his brother PW1(the respondent) gave him Bank account number 0800864002 account held at Diamond Trust Bank; where he deposited a sum of Kshs. 231,000/=. The account holder is and/or was associated motors limited.
74. The respondent herein at paragraph 19 of the plaint pleaded for a declaration that the defendant is a trustee for the plaintiff in respect of motor vehicle registration no. KCV 99111 until he pays the plaintiff Kshs. 2,000,000/=.The Respondent did not tender evidence that would have entitled him to the declaration as prayed.
75. From the pleadings herein, the respondent alleges to have incurred money in the purchase of this motor vehicle.
76. From the evidence, the appellant herein had a contract with NIC bank that paid for him sum of kshs. 3,984,000.00 For the appellant to take the said motor vehicle per D.EXb 6.
77. The appellant had an agreement with Associated motors ltd whereupon he paid money for purchase of chassis and facilitation of registration of the motor vehicle as demonstrated by D EXb 3 a,b & c and D EXb 4a&b.
78. From my analysis of the evidence that was tendered by the Respondent, the Respondent did not prove the special damages of Kshs. 2,000,000/= for the purchase of motor vehicle registration No.KCV 991H.
79. It is this court’s finding that the Respondent did not prove his case within Section 107 of The Evidence Act.
80. It is not enough for the respondent to just plead that the appellant was a trustee for the respondent.It is obviously clear from documentary evidence that the /appellant had secured a loan and he made all other payments for the motor vehicle to be purchased.
81. I find that the trial magistrate erred in awarding the Respondent the sum of Kshs. 231,000 which money was not pleaded and was not proved.
82. The trial court awarded special damages in error and without evidence to prove the same and I so hold.
83. The learned trial magistrate erred in law and fact by drawing her own claim and awarding and/or entering judgment on prayers which never been prayed for.
84. The mere fact that the appellant's act of nominating the respondent as next of kin and entrusting him to run and supervise his motor vehicle while he was away in Uganda for studies does not make the respondent a joint owner of the motor vehicle.
85. The judgment of the learned trial magistrate herein, is contrary to the weight of the evidence on record and hence manifestly unsafe.
Disposition:
86. As was held by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 stated that: "In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred."
87. On a balance of probability, it is my finding that the appellant's case against respondent meet the threshold required to prove a case in civil proceedings.
Order:
a) The appeal herein is allowed and the decision and decree of the Chief Magistrate Court be set aside in its entirety.
b) The Respondent's suit in the Chief Magistrate that is Ogembo CMCC No. 211 of 2019 be dismissed.
c) Costs of this appeal and -the Chief Magistrate be borne by the respondent.