'
BACKGROUND
By way of a plaint dated the 12 th August 2021 the respondent sued the appellant for conversion of goods.
The plaintiff alleged that the respondent was a contracted company carrying on business of electrical construction and connection amongst other business.
The respondent further alleged that they were contracted by Lukenya Greens Co. Ltd and Bajaj Electricals Ltd. To carry out Electrical electrical works within various sites namely Koseo, Luke waga, Kamuga Village , CLWA Youth Polytechnic, Jimo Primary , Shina Primary for certain considerations.
The respondent was supplied by the said companies with Electrical materials to be used in the stated sites and agreed that any material that would remain unused would be returned to the two companies.
According to the respondent the materials were kept in their stores at Lolwe Estate in Kisumu.
The respondent alleged further that the appellant through one of its employees by the name ZACHARY OMBATI went and carted away the materials not withstanding that the said OMBATI was informed that the material did not belong to the appellant.
The respondent claimed that the appellants official did not prepare an inventory of the materials he removed.
It was as a result of the action by the appellant employee that the respondent was unable to complete the work subcontracted to them by Lukenya Greens Co. Ltd and Bajaj Electricals Ltd.
The respondent maintained that he lost the profits expected from the contracts they had with the two companies.
The respondent particularized the materials lost as follows:-
Assorted Electrical Material issued by Lukenya Greens Ltd valued at Ksh. 3, 675, 496.36
Assorted Electrical Material issued by Bajaj Electricals Ltd. Valued at Kshs. 349,980.41
The respondent quantified their loss at Ksh.7,770,112.25 being the total value of material as well as the anticipated profit that the respondent would have drawn from the performance of the contracts were it not for the conversion of the materials by the appellants.
The appellants in their defence contended that the suit against them was prematurely initiated since the respondent had not exhausted the laid down procedure for ventilating such like disputes.
The appellants maintained that if any properties were taken from Lolwe Estate in Kisumu as alleged by the respondents , that was done during a planned operation by the appellants security office and police officers.
As a result of the confiscation of the materials the appellants alleged that there was a criminal case No. E20/21 R Vs. Faith Adhiambo Obwako which was initiated against one of the Directors of the respondent.
The appellants thus denied any wrong doing on their part and claimed that all that the respondent was doing was unjustly seek to enrich themselves.
It was the appellant’s firm position that the matter ought to have been resolved under the Energy and Petroleum Regulatory Authority or the Energy and Petroleum Tribunal in accordance with Energy Act , 2019 as read together with the Energy ( Complaints and Disputes Resolution Regulations, 2012) thus the court lacked jurisdiction to entertain the suit.
At the end of the trial the court rendered a judgment on 3/7/ 2023 in which the appellants were found to be liable to pay to the respondents the sum of Ksh. 7,770,112.25 with interest at 13.5% from 16 th March 2021 until payment in full being the liquidated claim and Ksh. 1,000,000 in general damages. The respondents were also awarded the costs of the suit thus prompting this appeal.
The appellants in their memorandum of appeal raised the following grounds:-
That the Learned Magistrate erred in law and fact in awarding the sum of Kshs. 7,770,112.25 since the respondent has not proved its case as to how the amount was arrived at.
That the Learned Honorable court erred in law and fact by finding in favor of the Respondent when the respondent had not proved its case on a balance of probabilities.
That the Learned Magistrate erred in finding that the criminal case Number Winam E20 of 2021 has no bearing on the case before him yet the case was the basis upon which the appellant got to recover the claimed materials.
That the court erred in finding that the material in question belonged to the respondent when there was no evidence to prove it
That the Learned Magistrate erred in awarding the sum of Kshs. 1 million for wrongful conversion without evidence.
That the decision of the Learned Magistrate was against the weight of evidence thus the appellants appeal ought to be allowed.
ANALYSIS
It is pretty clear to this court that the following issues arise for determination in this appeal:-
Whether there were electrical materials removed from the respondent’s premises by the employee of the appellant wrongfully.
Whether the materials in issue belonged to the respondent in order to justify the claim.
Whether the respondent established their case on a balance of probabilities.
APPELLANTS CASE
The appellant vide their written submissions dated 22 nd October 2024 maintained that they were in a contractual relationship with the respondent and during the substance of the contract, they discharged their contractual obligation.
The appellant submitted that the lower court in its decision held that the appellant did not meet certain performance standards leading financial loss.
According to the appellant this being the 1 st appellate court the duty placed on the shoulders of the court is to re-evaluate the evidence tendered before the lower court and draw independent conclusions from the evidence so as to determine whether or not to allow the appeal.
The appellant has cited the case of Bwire Bs Wavo & Sailoki (2022) eKLR in which Mativo , J as he then was cited the case of Selle & Another Vs Associated Motor Boat Co. Ltd & Others
“ A first appellate court is mandated to re evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand”
The duty of the first appellate court must however be exercised with caution not to interfere with findings of Lower courts willy nilly. The courts have held in a series of decisions that it is not enough that the appellate court could itself have come to a different conclusion had it heard the matter.
The appellant is however entitled to a full, fair and independent consideration of the Evidence at the appellate stage. The appeal basically takes the form a rehearing of the matter by the appellate court through a thorough scrutiny of the evidence on record.
The appellant submitted further that for monetary claims a party must be precise in their calculations or supporting documentation. The appellant maintained that all awards must be based on demonstrable proof.
According to the appellant no invoices receipts of payment or statement of accounts were produced in support of the claim for the sum of Kshs. 7,774,112.25.
In order to ascertain the validity of the claim, I have perused the record and the evidence of PW1 Faith Adhiambo Owalo who testified o 5/10/2022 , adopted her statement and produced documents marked as Plaintiff Exhibit 1-6.
The witness upon cross examination stated “the materials went missing and I reported to the police station. I have no OB number here. I was not authorized to handle KPLC materials.”
In re-examination the witness went on to state that:-
“ There is a criminal cause against me. I had received materials from Baja and Lukenya Greens Ltd. Lukenya Greens procured the materials. I cannot question where they procured their material. This is goods return note which shows the materials I returned. I retuned materials all the materials I had belonged to Bajaj and Lukenya. They have demanded materials back”
It is because of this criminal case that the appellant maintains that the learned Honorable magistrate disregarded yet it had a bearing on the claim before him.
The respondents list of documents in the lower court included:-
Materials issue note from Lukenya Green Co. Ltd for various dates for various sites
Requisitions forms for various materials for various materials for various sites from Lukenya Green Co. Ltd.
Good return note by the plaintiff for various items.
Invoices for work done in various sites by the plaintiff (respondent).
Demand for the cost of materials unutilized by the plaintiff from Lukenya Greens Co. Ltd and Bajaj Electricals Ltd. Totalling Kshs. 4,025,476.77
Demand letter by the plaintiff for return of materials taken by the defendant and admission of liability.
The store issue notes relied on by the respondent that were filed before court only showed the quantities of materials issued to the respondent Scolia Company. The same do not indicate the price of the materials issued.
The material requisition notes too do not show the value of the materials requested for.
The goods return notes also do not contain any figures that could guide the court in assessing the value of goods returned.
The court has also noted that though the invoices produced by the respondent indicate the amount of money, there are no accompanying receipts for payment by the respondent thus reinforcing the argument by the appellant that the claim was not sufficiently proved thus the learned Honorable magistrate was wrong in awarding the figure.
The demand notice for return of unutilized materials simply remains a demand but not proof of the sum claimed.
The appellants thus submitted that the respondent having failed to demonstrate that they had good tithe to the materials and that they were unlawfully taken away from them by the appellants, the case against the appellants was not proved to required standard of proof on a balance of probabilities.
The appellant further maintained that the interest awarded by the court at commercial rates was not merited. In support of that argument counsel cited the case of Pakatewa Investment Company Ltd. Vs Municipal Council of Malindi [2016] eKLR .
The appellant went on to submit that in Civil Claims, a Court must evaluate all the evidence impartially. The appellant cited the case of Kanungu Njogu Vs Daniel Kamau Maingi (2000) eKLR where the court held that :-
“when a court is faced with two probabilities, it can only decide the case on a balance of probability, if there is evidence to show that one probability was more probable than the other.”
According to the appellant the witness statement of the respondent lacked clarity and consistency thus the respondent did not discharge the burden of proof.
RESPONDENT’S CASE
The respondent largely supports the decision of the Lower Court.
According to the respondent the materials taken away from them by the appellants were unlawfully confiscated thus they were entitled to compensation in the such claimed.
The respondents deny any existence of a contract between them and that of their case is not premised on breach of a contract.
According to the respondent, the appellants simply went into a store at Blessed apartments where the respondent had kept their materials and forcefully, unlawfully and wrongfully carted them away.
The respondent’s case is that by dint of the action by the appellant through their agents and or employees, the respondents were unable to complete contracts they had secured thus the contracts were terminated leading to losses.
The respondent relies on the statement of the witness Faith Adhiambo.
The respondent submitted that the appellants sole witness admitted taking away materials from the respondents thus they were liable to compensate the respondent.
The respondent further argued that the appellant’s witness admitted that the materials that were removed from their premises were not the subject of the Criminal case thus the Learned Honorable magistrate was right in discharging that evidence.
The appellants sole witness was Zachary Ombati who stated that he was an employee of the appellant. He adopted his statement in which he admitted the taking away of the materials as alleged by the respondent in their plaint.
The witness however sought to explain that he took the materials as part of investigations into vandalism.
However, the evidence of the appellants witness in cross-examination confirmed that : “what we recovered from the premises are not all included in the charge sheet relates to the prepaid metres we recovered from the premises. We recovered other items from Lukenya Green. They are electrical gadgets.”
The witness went on to state that:
“the items we kept at our stores in Mamboleo. The plaintiff did not avail documents and failed to come to the site to identify the items”
It is this evidence that the respondent has urged the court to consider and find that the case against the appellant was proved and the judgment verified.
DETERMINATION
This court has taken into account the rival submissions of the counsel in this matter.
The court has also thoroughly scrutinized the record and the evidence tendered in the lower court.
It is not in doubt that the claim before me is not one premised on a breach on contract as alleged by the appellant.
Neither the appellant nor the respondent has led evidence to show that indeed there existed a contract between them and that the claim arose out of the breach of that contract.
It is thus clear to me that this is a proper case of conversion as pleaded by the respondent in her plaint.
I have not found evidence of breach of contract in the evidence tendered by the respondent as well as the appellant.
The appellants submission in that respect must therefore fail.
The appellant has also urged that the sum by the respondent ought to have been resolved by the Energy and Petroleum Tribunal. The contention therefore is that the respondent did not exhaust the available remedies under the Energy Act, 2019.
In this courts view the Act does not cover aspects of the tort of conversion whose remedies lie in damages. The point on jurisdiction is therefore misconceived and must be dismissed.
The evidence of the appellants witness put the matter beyond the provisions of the Energy Act by admitting that they took away the respondents goods/ items pursuant to an operation meant to deal with vandalism.
The respondents claim before the lower court was that the confiscation of their goods was without lawful cause and was purely an invasion of their right to property.
Conversion is defined under the Black’s Law Dictionary as:
“The wrongful possession or disposition of another’s property as if it were one’s own; an act or series of acts of willful interference , without lawful justification, with an item of property in a manner inconsistent with another’s right whereby that other person is deprived of the use and possession of the property.”
It is clear to me from the evidence tendered by the parties properties were taken away from the respondent premises by the appellant’s employee.
The appellants claim that they did so in an attempt to secure evidence to prosecute the respondents director. However, when the appellants witness gave evidence it emerged that the properties taken by the agents of the appellant were not all the subject of the Criminal Proceedings in Criminal Case No. E20/2021.
Admittedly the Criminal Case was eventually dismissed thus the taking away of the respondent’s properties was within the definition conversion as per the Black’s Law Discovery. The properties were taken without a proper legal justification.
It is not enough for the appellant to state that the respondent went for the items from them.
The duty was upon the appellant to prove that the taking away of those properties had a proper factual and legal basis.
The mere fact that the appellants were engaged in a security operation to combat vandalism cannot be by itself a legitimate excuse to violate the individual’s right to property.
The combating of crime must be undertaken within with the bounds 0f law and any excesses cannot escape sanction by the court.
Article 40 of the Constitution guarantees the right to property and any deprivation of the rights must be in accordance with the law
The limitation must be justifiable in law and must be attended by good faith on the part of the law reinforcement agencies
I have no doubt in my mind that the deprivation of the right to property in this case did not meet the constitutional tests of limitation under Article 24 and 40 of the constitution
The respondent was therefore entitled to remedy
The point that this court is bound to determine is what was the appropriate relief for the breach
It my considered view damages for conversion of the property would have been sufficient.
The responded particularized the claim but the figure of Kshs.7,770,112.25 was not in the considered view of this court adequately proved.
The responded was under duty to establish with mathematical precision that the goods allegedly taken from them were acquired lawfully and set out the value of each and provide proof payment for the same. It was not enough for the respondent to show that they requisitioned goods and that invoices were issued by suppliers
The respondent should have led evidence to prove that the invoices were honored.
The respondent did produce any receipt as proof of payment
The demand letters annexed to the least of document could not suffice as proof of payment
The duty of a plaintiff in a liquidated claim is to prove the sum claimed on balance of probability
The respondent for instance did not prove that all the materials they requisitioned had already been supplied and received in their stores
Further, they did not prove that at the time the agents of appellant collected those goods all of them were still in the store and none had been utilized for the purpose they had been procured for.
The failure to prove those facts in my view left the figures claimed by the respondent unsubstantiated.
In Sichuan Huashi Enterprises Corporation (East Africa) Ltd Vs Capital Realty Lt; Jacinta Muthoni Machua & Another ( Interested parties) [2020] eKLR Odunga, J cited with approval the decision of Ringera , J in Charles Mwalia Vs. The Kenya Bureau of Standards [2001] 1 EA is where the learned Judge held:
“A liquidated demand is in the nature of a debt, a specific such of money due and payable under or by virtue of a contract. Its amount must either be ascertained or capable of being ascertained as a mere matter of arithmetic if the ascertainment of a sum of money, even though it be specific or named as of definite figure requires investigation beyond mere calculation , then the sum is not a “a debt or liquidated demand” but constitutes “damages”……
The words “debt or liquidated demand” do not extend to unliquidated damages, whether in tort or contract , even though the amount of such damages be named as a definite figure”
In the instant case although the respondent filed a suit seeking a specific amount, by dint of the respondent’s submission the claim was not based on a contract thus it would call for ascertainment of the sum. It was precisely for that reason that the respondent filed the documents in support of the claim.
In Halsbury’s Laws of England, 4 th Edn. Vol 12 at Paragraph 1109 states:-
“……. In every case where the court was to quantify or assess the damages or loss whether pecuniary or non -pecuniary the damages are unliquidated.”
The case before me clearly called for the assessment of damages even though specific figures were pleaded.
I have stated elsewhere in this judgment that the specific figures pleaded by the respondent were not proved with arithmetic accuracy thus the court was left to assess damages in light of the evidence before it.
In the end, I find and hold that this appeal partially succeeds since as I have stated the figure of Kshs. 7,770,112.25 was not adequately proved.
However, the evidence led supported the damages of ksh 100,0000 awarded by the trial court for wrongful conversion of property. The appeal on that ground fails and the figure of Ksh 1million in damages is upheld.
The upshot of the above is that this court is inclined to interfere with the decision of the lower court as hereunder:-
The sum of Ksh, 7,770, 112.25 awarded by the lower court together with the interest at commercial rates of 13.5% is hereby set aside.
The general damages of Kshs. 1,000,000 with interests at court rates to the respondent is upheld.
The costs of this appeal shall go to the respondent.
It is so ordered.
'
BACKGROUND
By way of a plaint dated the 12 th August 2021 the respondent sued the appellant for conversion of goods.
The plaintiff alleged that the respondent was a contracted company carrying on business of electrical construction and connection amongst other business.
The respondent further alleged that they were contracted by Lukenya Greens Co. Ltd and Bajaj Electricals Ltd. To carry out Electrical electrical works within various sites namely Koseo, Luke waga, Kamuga Village , CLWA Youth Polytechnic, Jimo Primary , Shina Primary for certain considerations.
The respondent was supplied by the said companies with Electrical materials to be used in the stated sites and agreed that any material that would remain unused would be returned to the two companies.
According to the respondent the materials were kept in their stores at Lolwe Estate in Kisumu.
The respondent alleged further that the appellant through one of its employees by the name ZACHARY OMBATI went and carted away the materials not withstanding that the said OMBATI was informed that the material did not belong to the appellant.
The respondent claimed that the appellants official did not prepare an inventory of the materials he removed.
It was as a result of the action by the appellant employee that the respondent was unable to complete the work subcontracted to them by Lukenya Greens Co. Ltd and Bajaj Electricals Ltd.
The respondent maintained that he lost the profits expected from the contracts they had with the two companies.
The respondent particularized the materials lost as follows:-
Assorted Electrical Material issued by Lukenya Greens Ltd valued at Ksh. 3, 675, 496.36
Assorted Electrical Material issued by Bajaj Electricals Ltd. Valued at Kshs. 349,980.41
The respondent quantified their loss at Ksh.7,770,112.25 being the total value of material as well as the anticipated profit that the respondent would have drawn from the performance of the contracts were it not for the conversion of the materials by the appellants.
The appellants in their defence contended that the suit against them was prematurely initiated since the respondent had not exhausted the laid down procedure for ventilating such like disputes.
The appellants maintained that if any properties were taken from Lolwe Estate in Kisumu as alleged by the respondents , that was done during a planned operation by the appellants security office and police officers.
As a result of the confiscation of the materials the appellants alleged that there was a criminal case No. E20/21 R Vs. Faith Adhiambo Obwako which was initiated against one of the Directors of the respondent.
The appellants thus denied any wrong doing on their part and claimed that all that the respondent was doing was unjustly seek to enrich themselves.
It was the appellant’s firm position that the matter ought to have been resolved under the Energy and Petroleum Regulatory Authority or the Energy and Petroleum Tribunal in accordance with Energy Act , 2019 as read together with the Energy ( Complaints and Disputes Resolution Regulations, 2012) thus the court lacked jurisdiction to entertain the suit.
At the end of the trial the court rendered a judgment on 3/7/ 2023 in which the appellants were found to be liable to pay to the respondents the sum of Ksh. 7,770,112.25 with interest at 13.5% from 16 th March 2021 until payment in full being the liquidated claim and Ksh. 1,000,000 in general damages. The respondents were also awarded the costs of the suit thus prompting this appeal.
The appellants in their memorandum of appeal raised the following grounds:-
That the Learned Magistrate erred in law and fact in awarding the sum of Kshs. 7,770,112.25 since the respondent has not proved its case as to how the amount was arrived at.
That the Learned Honorable court erred in law and fact by finding in favor of the Respondent when the respondent had not proved its case on a balance of probabilities.
That the Learned Magistrate erred in finding that the criminal case Number Winam E20 of 2021 has no bearing on the case before him yet the case was the basis upon which the appellant got to recover the claimed materials.
That the court erred in finding that the material in question belonged to the respondent when there was no evidence to prove it
That the Learned Magistrate erred in awarding the sum of Kshs. 1 million for wrongful conversion without evidence.
That the decision of the Learned Magistrate was against the weight of evidence thus the appellants appeal ought to be allowed.
ANALYSIS
It is pretty clear to this court that the following issues arise for determination in this appeal:-
Whether there were electrical materials removed from the respondent’s premises by the employee of the appellant wrongfully.
Whether the materials in issue belonged to the respondent in order to justify the claim.
Whether the respondent established their case on a balance of probabilities.
APPELLANTS CASE
The appellant vide their written submissions dated 22 nd October 2024 maintained that they were in a contractual relationship with the respondent and during the substance of the contract, they discharged their contractual obligation.
The appellant submitted that the lower court in its decision held that the appellant did not meet certain performance standards leading financial loss.
According to the appellant this being the 1 st appellate court the duty placed on the shoulders of the court is to re-evaluate the evidence tendered before the lower court and draw independent conclusions from the evidence so as to determine whether or not to allow the appeal.
The appellant has cited the case of Bwire Bs Wavo & Sailoki (2022) eKLR in which Mativo , J as he then was cited the case of Selle & Another Vs Associated Motor Boat Co. Ltd & Others
“ A first appellate court is mandated to re evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand”
The duty of the first appellate court must however be exercised with caution not to interfere with findings of Lower courts willy nilly. The courts have held in a series of decisions that it is not enough that the appellate court could itself have come to a different conclusion had it heard the matter.
The appellant is however entitled to a full, fair and independent consideration of the Evidence at the appellate stage. The appeal basically takes the form a rehearing of the matter by the appellate court through a thorough scrutiny of the evidence on record.
The appellant submitted further that for monetary claims a party must be precise in their calculations or supporting documentation. The appellant maintained that all awards must be based on demonstrable proof.
According to the appellant no invoices receipts of payment or statement of accounts were produced in support of the claim for the sum of Kshs. 7,774,112.25.
In order to ascertain the validity of the claim, I have perused the record and the evidence of PW1 Faith Adhiambo Owalo who testified o 5/10/2022 , adopted her statement and produced documents marked as Plaintiff Exhibit 1-6.
The witness upon cross examination stated “the materials went missing and I reported to the police station. I have no OB number here. I was not authorized to handle KPLC materials.”
In re-examination the witness went on to state that:-
“ There is a criminal cause against me. I had received materials from Baja and Lukenya Greens Ltd. Lukenya Greens procured the materials. I cannot question where they procured their material. This is goods return note which shows the materials I returned. I retuned materials all the materials I had belonged to Bajaj and Lukenya. They have demanded materials back”
It is because of this criminal case that the appellant maintains that the learned Honorable magistrate disregarded yet it had a bearing on the claim before him.
The respondents list of documents in the lower court included:-
Materials issue note from Lukenya Green Co. Ltd for various dates for various sites
Requisitions forms for various materials for various materials for various sites from Lukenya Green Co. Ltd.
Good return note by the plaintiff for various items.
Invoices for work done in various sites by the plaintiff (respondent).
Demand for the cost of materials unutilized by the plaintiff from Lukenya Greens Co. Ltd and Bajaj Electricals Ltd. Totalling Kshs. 4,025,476.77
Demand letter by the plaintiff for return of materials taken by the defendant and admission of liability.
The store issue notes relied on by the respondent that were filed before court only showed the quantities of materials issued to the respondent Scolia Company. The same do not indicate the price of the materials issued.
The material requisition notes too do not show the value of the materials requested for.
The goods return notes also do not contain any figures that could guide the court in assessing the value of goods returned.
The court has also noted that though the invoices produced by the respondent indicate the amount of money, there are no accompanying receipts for payment by the respondent thus reinforcing the argument by the appellant that the claim was not sufficiently proved thus the learned Honorable magistrate was wrong in awarding the figure.
The demand notice for return of unutilized materials simply remains a demand but not proof of the sum claimed.
The appellants thus submitted that the respondent having failed to demonstrate that they had good tithe to the materials and that they were unlawfully taken away from them by the appellants, the case against the appellants was not proved to required standard of proof on a balance of probabilities.
The appellant further maintained that the interest awarded by the court at commercial rates was not merited. In support of that argument counsel cited the case of Pakatewa Investment Company Ltd. Vs Municipal Council of Malindi [2016] eKLR .
The appellant went on to submit that in Civil Claims, a Court must evaluate all the evidence impartially. The appellant cited the case of Kanungu Njogu Vs Daniel Kamau Maingi (2000) eKLR where the court held that :-
“when a court is faced with two probabilities, it can only decide the case on a balance of probability, if there is evidence to show that one probability was more probable than the other.”
According to the appellant the witness statement of the respondent lacked clarity and consistency thus the respondent did not discharge the burden of proof.
RESPONDENT’S CASE
The respondent largely supports the decision of the Lower Court.
According to the respondent the materials taken away from them by the appellants were unlawfully confiscated thus they were entitled to compensation in the such claimed.
The respondents deny any existence of a contract between them and that of their case is not premised on breach of a contract.
According to the respondent, the appellants simply went into a store at Blessed apartments where the respondent had kept their materials and forcefully, unlawfully and wrongfully carted them away.
The respondent’s case is that by dint of the action by the appellant through their agents and or employees, the respondents were unable to complete contracts they had secured thus the contracts were terminated leading to losses.
The respondent relies on the statement of the witness Faith Adhiambo.
The respondent submitted that the appellants sole witness admitted taking away materials from the respondents thus they were liable to compensate the respondent.
The respondent further argued that the appellant’s witness admitted that the materials that were removed from their premises were not the subject of the Criminal case thus the Learned Honorable magistrate was right in discharging that evidence.
The appellants sole witness was Zachary Ombati who stated that he was an employee of the appellant. He adopted his statement in which he admitted the taking away of the materials as alleged by the respondent in their plaint.
The witness however sought to explain that he took the materials as part of investigations into vandalism.
However, the evidence of the appellants witness in cross-examination confirmed that : “what we recovered from the premises are not all included in the charge sheet relates to the prepaid metres we recovered from the premises. We recovered other items from Lukenya Green. They are electrical gadgets.”
The witness went on to state that:
“the items we kept at our stores in Mamboleo. The plaintiff did not avail documents and failed to come to the site to identify the items”
It is this evidence that the respondent has urged the court to consider and find that the case against the appellant was proved and the judgment verified.
DETERMINATION
This court has taken into account the rival submissions of the counsel in this matter.
The court has also thoroughly scrutinized the record and the evidence tendered in the lower court.
It is not in doubt that the claim before me is not one premised on a breach on contract as alleged by the appellant.
Neither the appellant nor the respondent has led evidence to show that indeed there existed a contract between them and that the claim arose out of the breach of that contract.
It is thus clear to me that this is a proper case of conversion as pleaded by the respondent in her plaint.
I have not found evidence of breach of contract in the evidence tendered by the respondent as well as the appellant.
The appellants submission in that respect must therefore fail.
The appellant has also urged that the sum by the respondent ought to have been resolved by the Energy and Petroleum Tribunal. The contention therefore is that the respondent did not exhaust the available remedies under the Energy Act, 2019.
In this courts view the Act does not cover aspects of the tort of conversion whose remedies lie in damages. The point on jurisdiction is therefore misconceived and must be dismissed.
The evidence of the appellants witness put the matter beyond the provisions of the Energy Act by admitting that they took away the respondents goods/ items pursuant to an operation meant to deal with vandalism.
The respondents claim before the lower court was that the confiscation of their goods was without lawful cause and was purely an invasion of their right to property.
Conversion is defined under the Black’s Law Dictionary as:
“The wrongful possession or disposition of another’s property as if it were one’s own; an act or series of acts of willful interference , without lawful justification, with an item of property in a manner inconsistent with another’s right whereby that other person is deprived of the use and possession of the property.”
It is clear to me from the evidence tendered by the parties properties were taken away from the respondent premises by the appellant’s employee.
The appellants claim that they did so in an attempt to secure evidence to prosecute the respondents director. However, when the appellants witness gave evidence it emerged that the properties taken by the agents of the appellant were not all the subject of the Criminal Proceedings in Criminal Case No. E20/2021.
Admittedly the Criminal Case was eventually dismissed thus the taking away of the respondent’s properties was within the definition conversion as per the Black’s Law Discovery. The properties were taken without a proper legal justification.
It is not enough for the appellant to state that the respondent went for the items from them.
The duty was upon the appellant to prove that the taking away of those properties had a proper factual and legal basis.
The mere fact that the appellants were engaged in a security operation to combat vandalism cannot be by itself a legitimate excuse to violate the individual’s right to property.
The combating of crime must be undertaken within with the bounds 0f law and any excesses cannot escape sanction by the court.
Article 40 of the Constitution guarantees the right to property and any deprivation of the rights must be in accordance with the law
The limitation must be justifiable in law and must be attended by good faith on the part of the law reinforcement agencies
I have no doubt in my mind that the deprivation of the right to property in this case did not meet the constitutional tests of limitation under Article 24 and 40 of the constitution
The respondent was therefore entitled to remedy
The point that this court is bound to determine is what was the appropriate relief for the breach
It my considered view damages for conversion of the property would have been sufficient.
The responded particularized the claim but the figure of Kshs.7,770,112.25 was not in the considered view of this court adequately proved.
The responded was under duty to establish with mathematical precision that the goods allegedly taken from them were acquired lawfully and set out the value of each and provide proof payment for the same. It was not enough for the respondent to show that they requisitioned goods and that invoices were issued by suppliers
The respondent should have led evidence to prove that the invoices were honored.
The respondent did produce any receipt as proof of payment
The demand letters annexed to the least of document could not suffice as proof of payment
The duty of a plaintiff in a liquidated claim is to prove the sum claimed on balance of probability
The respondent for instance did not prove that all the materials they requisitioned had already been supplied and received in their stores
Further, they did not prove that at the time the agents of appellant collected those goods all of them were still in the store and none had been utilized for the purpose they had been procured for.
The failure to prove those facts in my view left the figures claimed by the respondent unsubstantiated.
In Sichuan Huashi Enterprises Corporation (East Africa) Ltd Vs Capital Realty Lt; Jacinta Muthoni Machua & Another ( Interested parties) [2020] eKLR Odunga, J cited with approval the decision of Ringera , J in Charles Mwalia Vs. The Kenya Bureau of Standards [2001] 1 EA is where the learned Judge held:
“A liquidated demand is in the nature of a debt, a specific such of money due and payable under or by virtue of a contract. Its amount must either be ascertained or capable of being ascertained as a mere matter of arithmetic if the ascertainment of a sum of money, even though it be specific or named as of definite figure requires investigation beyond mere calculation , then the sum is not a “a debt or liquidated demand” but constitutes “damages”……
The words “debt or liquidated demand” do not extend to unliquidated damages, whether in tort or contract , even though the amount of such damages be named as a definite figure”
In the instant case although the respondent filed a suit seeking a specific amount, by dint of the respondent’s submission the claim was not based on a contract thus it would call for ascertainment of the sum. It was precisely for that reason that the respondent filed the documents in support of the claim.
In Halsbury’s Laws of England, 4 th Edn. Vol 12 at Paragraph 1109 states:-
“……. In every case where the court was to quantify or assess the damages or loss whether pecuniary or non -pecuniary the damages are unliquidated.”
The case before me clearly called for the assessment of damages even though specific figures were pleaded.
I have stated elsewhere in this judgment that the specific figures pleaded by the respondent were not proved with arithmetic accuracy thus the court was left to assess damages in light of the evidence before it.
In the end, I find and hold that this appeal partially succeeds since as I have stated the figure of Kshs. 7,770,112.25 was not adequately proved.
However, the evidence led supported the damages of ksh 100,0000 awarded by the trial court for wrongful conversion of property. The appeal on that ground fails and the figure of Ksh 1million in damages is upheld.
The upshot of the above is that this court is inclined to interfere with the decision of the lower court as hereunder:-
The sum of Ksh, 7,770, 112.25 awarded by the lower court together with the interest at commercial rates of 13.5% is hereby set aside.
The general damages of Kshs. 1,000,000 with interests at court rates to the respondent is upheld.
The costs of this appeal shall go to the respondent.
It is so ordered.
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