1. This is an Appeal from the lower court’s judgment of 10th January 2022 in the Nairobi CMCC No. 1709 of 2020 in which the trial magistrate entered judgment in in favour of the Respondent against the Appellant for a permanent injunction restraining the Appellant from interfering with the Respondent’s picking and dropping slots at Accra Road, Nairobi.
2. The background of the matter is that on 19th March 2020, the Respondent, then a plaintiff, commenced proceedings and sued the Appellant, then the defendant, seeking an order of permanent injunction restraining the Appellants from interfering with the Respondent’s picking and dropping slots at Accra Road, Nairobi.
3. The suit was opposed by the Appellant vide their statement of defence dated 23rd October 2020 where they generally denied the Respondent’s allegations claiming that the slots were allocated to them and that it is the Respondent who trespassed into their space.
4. On 13th March 2019, after hearing both parties, the trial court delivered its judgment in favour of the Respondent, issuing an order of permanent injunction against the Appellant in the following terms; -
“That the judgment is hereby entered in favour of the of the Plaintiff as against the Defendant in that a permanent injunction is hereby issued restraining the Defendant, its agents, employees, proxies or persons acting under the instructions of the Defendant from harassing, interfering, intimidating, threatening and or impeding in any way whatsoever with the plaintiff’s peaceful operations at its allocated picking and dropping slots on Accra Road Nairobi.”
5. Costs of the suit were also awarded to the Respondent.
The Appeal
6. Aggrieved by the trial court’s judgment, the Appellant vide his memorandum of appeal dated 17th June 2022 lodged an appeal to this court raising five grounds of appeal against the whole of the aforesaid Ruling as follows; -
i. The trial magistrate erred in law and in fact by awarding the respondent herein an order of permanent injunction restraining the appellant’s agents, employee proxies or persons acting under their instructions or any person/agency whatsoever from trespassing, harassing, interfering, intimidating threatening and or impending in anyway whatsoever with the plaintiff’s peaceful operations at its allotted picking and dropping slots on Accra Road, Nairobi.
ii. The trial magistrate erred in law and in fact in holding that the plaintiff had proved its case on a balance of probability when no evidence was tendered in proof that the respondent was allocated/allotted the picking and dropping slots on Accra Road, Nairobi.
iii. The trial magistrate erred in law and in fact by not sufficiently appreciating or at all ignoring the Appellant’s testimony and material evidence in support thereto adduced during trial and as a result passed the impugned judgment and decree in favour of the Respondent.
iv. The trial magistrate erred in law and fact in arriving at the impugned decision that is wholly and substantially against the evidence on record.
v. The trial magistrate erred in law and in fact in coming to the conclusion and the judgment he came to contrary to the evidence, the law and the submission urged before him.
7. The Appellant therefore prayed that: -
a) The appeal be allowed
b) The judgment of the lower court by Hon. A. Lesootia, PM, in Nairobi CMCC No. 1709 of 2022, delivered on the 10th day of June 2022, be set aside and this honourable court do substitute thereof an order dismissing the Plaintiff’s/Respondent’s Suit.
c) The costs before this court and the lower court be awarded to the Appellant.
8. From a careful review of the grounds of appeal as presented by the Appellant in this appeal, it is clear that the Appellant’s main challenge against the trial court’s judgment is the court’s appreciation of the evidence presented by the parties at trial and the subsequent issuance of permanent injunction by the court against the Appellant, barring them from the picking and dropping slots in question.
Submissions
9. At the hearing of the appeal, the parties took directions to have the same canvassed by way of written submissions. The Appellant filed its submissions dated 22nd March 2024 whilst the Respondent filed their dated 5th April 2024.
10. The Appellant in support of the appeal submitted that the trial court erred in failing to uphold the Appellant’s position that the Respondent lacked requisite locus standi to institute the suit. Citing the decisions in Alfred Njau & 5 others vs. City Council of Nairobi [1983] eKLR, Assia Pharmaceuticals v Nairobi Veterinary Centre Ltd [2000] eKRL, Leo Investments Ltd v Trident Insurance Company Ltd (2014) eKLR and Spire Bank Limited v Land Registrar & 2 others [2019] eKLR, the Appellant asserted the Respondent lacked locus due to the fact that no resolution by the Respondent company was furnished to the trial court prior to the filing of the suit. Further it was the Appellant’s argument that Mr. Nephat Njiru M’kuma who swore the verifying affidavit in support of the plaint did not produce any documentation to show that he had authority from the company to do so. In the premises, the Appellant urged this court to dismiss the suit by the Respondent for want of locus.
11. The second issue taken up by the Appellants in their submissions in this appeal was that trial court erred, both in law and in fact, in finding that the Respondent had proved its case on a balance of probability as requires under section 107 of the Evidence Act Cap. 80 Laws of Kenya. That before granting the injunction, the trial court failed to consider the applicable principles as enunciate under the case of Giella v Cassman Brown, that is, the presence of a prima facie case with probability of success, the presence of irreparable harm if injunction was not grated and the balance of convenience.
12. Regarding the presence of prima facie case with probability of success, the Appellant submitted that the Respondent did not demonstrate at trial that it had a prima facie case with probability of success. That the Respondent failed to demonstrate by way of documentation that it had in fact been allocated the picking and dropping slots in question. According to the Appellant, the letter dated 8th September 2004 upon which the Respondent based its case, was done way before the Appellant was registered and that in any event, the same was done by an individual, one Mr. Stanley Njiru Kabuthi, who did not furnish any evidence at trial demonstrating that the letter was done for and on behalf of the Respondent company.
13. As to whether there was likely to be irreparable loss to the Respondent if the orders sought were to be denied, the Appellant, submitted that none was shown to the trial court. The Appellant simply reiterated his submissions that the letter of 8th September 2004 upon which the Respondent based its case was done before the Respondent’s incorporation in 2005 and that the individual who did the letter did so in his personal capacity with no connection to the Respondent company.
14. On balance of convenience, the Appellant submitted that the trial court failed to consider that the Appellant with its fleet of over 400 motor vehicles were likely to suffer more than the Respondent who testified that they only had 77 motor vehicles. Further, that unlike the Respondent, who is only claiming the slots from 2004, the Appellant has been in occupation of the slot since 1998 as proved by the permits and receipts it produced at trial. In this regard, the Appellant relied in the case of Pius Kipchirchir Kogo versus Frank Kimeli Tenai (2018) eKLR in support of their case.
15. The Respondent on the other hand supported the trial court’s Ruling and submitted that the trial court was right if its finding that the Respondent had proved its case against the Appellant. The Appellant reiterated its submissions before the trial court that it had been granted the picking and dropping slots along Accra Road pursuant to the letter dated 8th September 2004 by Stanely Kabuthi who was one of its officials and who testified at trial as PW1 (page 15 of the record of appeal). According to the Respondent, the Appellant failed to avail any documentation in evidence at trial indicating that they had been allotted the picking and dropping slots along Accra Road as alleged. Citing the decision in Republic – Versus - City Council of Nairobi & 3 Others (2014) eKLR, the Appellant submitted that where land has been allocated, the same cannot be reallocated unless the first allocation is validly and lawfully cancelled.
16. The Respondent further submitted that trial magistrate did not err in granting the order of permanent injunction stopping the Appellant from interfering with the Respondent’s occupation of the picking and dropping slots. Reliance was placed on the case of Kenya Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR where the Court held that a permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit on merits and that it fully determines the rights of the parties before the court. That the injunction “perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected.”
17. As to whether the Respondent’s case before the trial court met the conditions for the granting of the injunctive relief, the Respondent relied on the case of Nguruman Limited v Jan Bonde Nielsen & 2 others, CA No. 77 of 2012; [2014] eKLR and asserted that the trial court was right in granting in their favour the injunctive relief in the form of permanent injunction against the Appellants since they adduced sufficient evidence at trial showing the presence of a prima facie case, the presence of irreparable harm is the relief were not grated and that the balance of convenience of convenience was in their favour. Consequently, the Respondent urged this court to dismiss the appeal with costs to them.
Analysis and determination
18. This being a first appeal, this court is obligated to reassess and reevaluate the evidence adduced in the subordinate court, both on points of law and on facts and come up with its own findings and conclusions. [See: Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424]. In so doing the court must take into account that it had no opportunity to hear and see witnesses testify first hand and therefore must make due allowance in that regard. (See: Selle & Another v Associated Motor Boat Co. Ltd & Another (1968 (E.A. 123).
19. I have considered and analyzed the pleadings and the evidence adduced before the trial court by the parties to this appeal. I have also reviewed the submissions by the parties in support of their respective positions in this appeal and it is my view that the main issue for determination is whether, in the circumstances of the case, the trial magistrate erred in law and fact in dismissing granting permanent injunction in favour of the Respondent as against the Appellant.
20. As indicated above, the first issue taken up by the Appellant in this appeal is that of locus standi. According to the Appellant, Respondent lacked locus due to the fact that no resolution by the Respondent company was furnished to the trial court prior to the filing of the suit. Further it was the Appellant’s argument that Mr. Nephat Njiru M’kuma who swore the verifying affidavit in support of the plaint did not produce any documentation to show that he had authority from the company to do so. In the premises, the Appellant urged this court to dismiss the suit by the Respondent for want of locus.
21. I have considered the material on record and find myself unable to uphold this ground of appeal. While filing of a board of directors’ resolution is advisable and indeed necessary, particularly to protect companies or such other corporate bodies from unsanctioned proceedings, failure to file such resolution is not meant to be relied on by third parties to strike out proceeding/suits commenced by such corporate entities. See the decision in the case of Leo Investments Ltd v Trident Insurance Company Ltd (2014) eKLR where Odunga, J was in agreement with the decision of Kimaru J in the case of Republic vs. Registrar General and 13 Others Misc. Application No. 67 of 2005 [2005] eKLR where the court stated: -
“ …such a resolution by the Board of Directors of a company may be filed at any time before the suit is fixed for hearing as there is no requirement that the same be filed at the same time as the suit. Its absence is, therefore, not fatal to the suit.”
22. Again, in Spire Bank Limited v Land Registrar & 2 others [2019] eKLR the Court of Appeal, dealing with the same issue stated as follows: -
“…It is essential to appreciate that the intention behind order 4 rule 1 (4) was to safeguard the corporate entity by ensuring that only an authorized officer could institute proceedings on its behalf. This was to address the mischief of unauthorized persons instituting proceedings on behalf of corporations, and obtaining fraudulent or unwarranted orders from the court. The company’s seal that is affixed under the hand of the directors ensured that they were aware of, and had authorized such proceedings together with the persons enlisted to conduct them. And where evidence was produced to demonstrate that a person was unauthorized, the burden shifted to such officer to demonstrate that they were authorized under the company seal. With this in mind, we dare say that the provision was not intended to be utilized as a procedural technicality to strike out suits, particularly where no evidence was produced to demonstrate that the officer was unauthorized.” [emphasis added)
23. In any event, I note from the Supplementary record of appeal filed by the Respondent on 5th April 2024 that there was a Board Resolution dated 16th March 2020 by the Respondent SACCO authorizing the commencement of the proceedings against the Appellant and that Nephat Njiru M’Kuma was authorized to execute all documents on behalf of the Respondent and also to appear in court on its behalf. It is interesting to note that this document was for some reason left out by the Appellant while filing its Record of Appeal.
24. On the question whether the trial court erred in finding that the Respondent proved its case on a balance of probability, it is critical to note that the legal basis for the legal burden of proof is provided in Section 107 of the Evidence Act, Cap. 80 of the Laws of Kenya. The said section of the law states as follows: -
“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
25. The Court of Appeal in Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, held that: -
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
26. This standard of proof is well enunciated in the case of Miller vs Minister of pensions [1947] cited with approval in D.T. Dobie Company (K) Limited vs Wanyonyi Wafula Chabukati [2014] eKLR where the court stated: -
That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, thus proof on a balance or prepodence of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally unconvincing the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
27. I have reviewed the evidence on record and note that Mr. Stanley Kabuthi who testified for the Respondent as DW1, explained to court that by letter dated 8th September 2004, he applied and secured the dropping and picking slot on behalf of the Respondent as the Respondent was still in the process of being registered. He told court that he was then acting as the Respondent’s secretary pending its formal registration.
28. On the other hand, I note that Appellant did not adduce any evidence at trial that they had been allocated the subject picking and dropping slots along Accra Road. Apart submitting that the Respondent SACCO was registered after Mr. Stanely Kabuthi’s letter of 8th September 2004 which led to the allotment of the subject picking and dropping slots to the Respondent, no substantive evidence was adduced by the Appellant to impeach the Respondent’s claim.
29. Further, the Respondent did not lead any evidence that the allotment to the Respondents of the picking and dropping slots in question had been cancelled. To the extent that the allotment had not been cancelled, the same in my view still remained valid and the Respondent was therefore perfectly in law entitled to claim the same.
30. I have considered the Respondent’s evidence and submissions in the trial court and come to the conclusion that it proved his case on the balance of probabilities. The Appellant in this appeal has failed to established any of the ground enumerated in his memorandum of appeal.
31. Accordingly, I find no merit in this appeal and the same is hereby dismissed with costs.
32. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 19 TH DAY OF SEPTEMBER 2024
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Miss Wanjala………...for Appellant
…Nyakweba………...for Respondent.
2. The background of the matter is that on 19th March 2020, the Respondent, then a plaintiff, commenced proceedings and sued the Appellant, then the defendant, seeking an order of permanent injunction restraining the Appellants from interfering with the Respondent’s picking and dropping slots at Accra Road, Nairobi.
3. The suit was opposed by the Appellant vide their statement of defence dated 23rd October 2020 where they generally denied the Respondent’s allegations claiming that the slots were allocated to them and that it is the Respondent who trespassed into their space.
4. On 13th March 2019, after hearing both parties, the trial court delivered its judgment in favour of the Respondent, issuing an order of permanent injunction against the Appellant in the following terms; -
“That the judgment is hereby entered in favour of the of the Plaintiff as against the Defendant in that a permanent injunction is hereby issued restraining the Defendant, its agents, employees, proxies or persons acting under the instructions of the Defendant from harassing, interfering, intimidating, threatening and or impeding in any way whatsoever with the plaintiff’s peaceful operations at its allocated picking and dropping slots on Accra Road Nairobi.”
5. Costs of the suit were also awarded to the Respondent.
The Appeal
6. Aggrieved by the trial court’s judgment, the Appellant vide his memorandum of appeal dated 17th June 2022 lodged an appeal to this court raising five grounds of appeal against the whole of the aforesaid Ruling as follows; -
i. The trial magistrate erred in law and in fact by awarding the respondent herein an order of permanent injunction restraining the appellant’s agents, employee proxies or persons acting under their instructions or any person/agency whatsoever from trespassing, harassing, interfering, intimidating threatening and or impending in anyway whatsoever with the plaintiff’s peaceful operations at its allotted picking and dropping slots on Accra Road, Nairobi.
ii. The trial magistrate erred in law and in fact in holding that the plaintiff had proved its case on a balance of probability when no evidence was tendered in proof that the respondent was allocated/allotted the picking and dropping slots on Accra Road, Nairobi.
iii. The trial magistrate erred in law and in fact by not sufficiently appreciating or at all ignoring the Appellant’s testimony and material evidence in support thereto adduced during trial and as a result passed the impugned judgment and decree in favour of the Respondent.
iv. The trial magistrate erred in law and fact in arriving at the impugned decision that is wholly and substantially against the evidence on record.
v. The trial magistrate erred in law and in fact in coming to the conclusion and the judgment he came to contrary to the evidence, the law and the submission urged before him.
7. The Appellant therefore prayed that: -
a) The appeal be allowed
b) The judgment of the lower court by Hon. A. Lesootia, PM, in Nairobi CMCC No. 1709 of 2022, delivered on the 10th day of June 2022, be set aside and this honourable court do substitute thereof an order dismissing the Plaintiff’s/Respondent’s Suit.
c) The costs before this court and the lower court be awarded to the Appellant.
8. From a careful review of the grounds of appeal as presented by the Appellant in this appeal, it is clear that the Appellant’s main challenge against the trial court’s judgment is the court’s appreciation of the evidence presented by the parties at trial and the subsequent issuance of permanent injunction by the court against the Appellant, barring them from the picking and dropping slots in question.
Submissions
9. At the hearing of the appeal, the parties took directions to have the same canvassed by way of written submissions. The Appellant filed its submissions dated 22nd March 2024 whilst the Respondent filed their dated 5th April 2024.
10. The Appellant in support of the appeal submitted that the trial court erred in failing to uphold the Appellant’s position that the Respondent lacked requisite locus standi to institute the suit. Citing the decisions in Alfred Njau & 5 others vs. City Council of Nairobi [1983] eKLR, Assia Pharmaceuticals v Nairobi Veterinary Centre Ltd [2000] eKRL, Leo Investments Ltd v Trident Insurance Company Ltd (2014) eKLR and Spire Bank Limited v Land Registrar & 2 others [2019] eKLR, the Appellant asserted the Respondent lacked locus due to the fact that no resolution by the Respondent company was furnished to the trial court prior to the filing of the suit. Further it was the Appellant’s argument that Mr. Nephat Njiru M’kuma who swore the verifying affidavit in support of the plaint did not produce any documentation to show that he had authority from the company to do so. In the premises, the Appellant urged this court to dismiss the suit by the Respondent for want of locus.
11. The second issue taken up by the Appellants in their submissions in this appeal was that trial court erred, both in law and in fact, in finding that the Respondent had proved its case on a balance of probability as requires under section 107 of the Evidence Act Cap. 80 Laws of Kenya. That before granting the injunction, the trial court failed to consider the applicable principles as enunciate under the case of Giella v Cassman Brown, that is, the presence of a prima facie case with probability of success, the presence of irreparable harm if injunction was not grated and the balance of convenience.
12. Regarding the presence of prima facie case with probability of success, the Appellant submitted that the Respondent did not demonstrate at trial that it had a prima facie case with probability of success. That the Respondent failed to demonstrate by way of documentation that it had in fact been allocated the picking and dropping slots in question. According to the Appellant, the letter dated 8th September 2004 upon which the Respondent based its case, was done way before the Appellant was registered and that in any event, the same was done by an individual, one Mr. Stanley Njiru Kabuthi, who did not furnish any evidence at trial demonstrating that the letter was done for and on behalf of the Respondent company.
13. As to whether there was likely to be irreparable loss to the Respondent if the orders sought were to be denied, the Appellant, submitted that none was shown to the trial court. The Appellant simply reiterated his submissions that the letter of 8th September 2004 upon which the Respondent based its case was done before the Respondent’s incorporation in 2005 and that the individual who did the letter did so in his personal capacity with no connection to the Respondent company.
14. On balance of convenience, the Appellant submitted that the trial court failed to consider that the Appellant with its fleet of over 400 motor vehicles were likely to suffer more than the Respondent who testified that they only had 77 motor vehicles. Further, that unlike the Respondent, who is only claiming the slots from 2004, the Appellant has been in occupation of the slot since 1998 as proved by the permits and receipts it produced at trial. In this regard, the Appellant relied in the case of Pius Kipchirchir Kogo versus Frank Kimeli Tenai (2018) eKLR in support of their case.
15. The Respondent on the other hand supported the trial court’s Ruling and submitted that the trial court was right if its finding that the Respondent had proved its case against the Appellant. The Appellant reiterated its submissions before the trial court that it had been granted the picking and dropping slots along Accra Road pursuant to the letter dated 8th September 2004 by Stanely Kabuthi who was one of its officials and who testified at trial as PW1 (page 15 of the record of appeal). According to the Respondent, the Appellant failed to avail any documentation in evidence at trial indicating that they had been allotted the picking and dropping slots along Accra Road as alleged. Citing the decision in Republic – Versus - City Council of Nairobi & 3 Others (2014) eKLR, the Appellant submitted that where land has been allocated, the same cannot be reallocated unless the first allocation is validly and lawfully cancelled.
16. The Respondent further submitted that trial magistrate did not err in granting the order of permanent injunction stopping the Appellant from interfering with the Respondent’s occupation of the picking and dropping slots. Reliance was placed on the case of Kenya Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR where the Court held that a permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit on merits and that it fully determines the rights of the parties before the court. That the injunction “perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected.”
17. As to whether the Respondent’s case before the trial court met the conditions for the granting of the injunctive relief, the Respondent relied on the case of Nguruman Limited v Jan Bonde Nielsen & 2 others, CA No. 77 of 2012; [2014] eKLR and asserted that the trial court was right in granting in their favour the injunctive relief in the form of permanent injunction against the Appellants since they adduced sufficient evidence at trial showing the presence of a prima facie case, the presence of irreparable harm is the relief were not grated and that the balance of convenience of convenience was in their favour. Consequently, the Respondent urged this court to dismiss the appeal with costs to them.
Analysis and determination
18. This being a first appeal, this court is obligated to reassess and reevaluate the evidence adduced in the subordinate court, both on points of law and on facts and come up with its own findings and conclusions. [See: Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424]. In so doing the court must take into account that it had no opportunity to hear and see witnesses testify first hand and therefore must make due allowance in that regard. (See: Selle & Another v Associated Motor Boat Co. Ltd & Another (1968 (E.A. 123).
19. I have considered and analyzed the pleadings and the evidence adduced before the trial court by the parties to this appeal. I have also reviewed the submissions by the parties in support of their respective positions in this appeal and it is my view that the main issue for determination is whether, in the circumstances of the case, the trial magistrate erred in law and fact in dismissing granting permanent injunction in favour of the Respondent as against the Appellant.
20. As indicated above, the first issue taken up by the Appellant in this appeal is that of locus standi. According to the Appellant, Respondent lacked locus due to the fact that no resolution by the Respondent company was furnished to the trial court prior to the filing of the suit. Further it was the Appellant’s argument that Mr. Nephat Njiru M’kuma who swore the verifying affidavit in support of the plaint did not produce any documentation to show that he had authority from the company to do so. In the premises, the Appellant urged this court to dismiss the suit by the Respondent for want of locus.
21. I have considered the material on record and find myself unable to uphold this ground of appeal. While filing of a board of directors’ resolution is advisable and indeed necessary, particularly to protect companies or such other corporate bodies from unsanctioned proceedings, failure to file such resolution is not meant to be relied on by third parties to strike out proceeding/suits commenced by such corporate entities. See the decision in the case of Leo Investments Ltd v Trident Insurance Company Ltd (2014) eKLR where Odunga, J was in agreement with the decision of Kimaru J in the case of Republic vs. Registrar General and 13 Others Misc. Application No. 67 of 2005 [2005] eKLR where the court stated: -
“ …such a resolution by the Board of Directors of a company may be filed at any time before the suit is fixed for hearing as there is no requirement that the same be filed at the same time as the suit. Its absence is, therefore, not fatal to the suit.”
22. Again, in Spire Bank Limited v Land Registrar & 2 others [2019] eKLR the Court of Appeal, dealing with the same issue stated as follows: -
“…It is essential to appreciate that the intention behind order 4 rule 1 (4) was to safeguard the corporate entity by ensuring that only an authorized officer could institute proceedings on its behalf. This was to address the mischief of unauthorized persons instituting proceedings on behalf of corporations, and obtaining fraudulent or unwarranted orders from the court. The company’s seal that is affixed under the hand of the directors ensured that they were aware of, and had authorized such proceedings together with the persons enlisted to conduct them. And where evidence was produced to demonstrate that a person was unauthorized, the burden shifted to such officer to demonstrate that they were authorized under the company seal. With this in mind, we dare say that the provision was not intended to be utilized as a procedural technicality to strike out suits, particularly where no evidence was produced to demonstrate that the officer was unauthorized.” [emphasis added)
23. In any event, I note from the Supplementary record of appeal filed by the Respondent on 5th April 2024 that there was a Board Resolution dated 16th March 2020 by the Respondent SACCO authorizing the commencement of the proceedings against the Appellant and that Nephat Njiru M’Kuma was authorized to execute all documents on behalf of the Respondent and also to appear in court on its behalf. It is interesting to note that this document was for some reason left out by the Appellant while filing its Record of Appeal.
24. On the question whether the trial court erred in finding that the Respondent proved its case on a balance of probability, it is critical to note that the legal basis for the legal burden of proof is provided in Section 107 of the Evidence Act, Cap. 80 of the Laws of Kenya. The said section of the law states as follows: -
“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
25. The Court of Appeal in Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, held that: -
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
26. This standard of proof is well enunciated in the case of Miller vs Minister of pensions [1947] cited with approval in D.T. Dobie Company (K) Limited vs Wanyonyi Wafula Chabukati [2014] eKLR where the court stated: -
That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, thus proof on a balance or prepodence of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally unconvincing the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
27. I have reviewed the evidence on record and note that Mr. Stanley Kabuthi who testified for the Respondent as DW1, explained to court that by letter dated 8th September 2004, he applied and secured the dropping and picking slot on behalf of the Respondent as the Respondent was still in the process of being registered. He told court that he was then acting as the Respondent’s secretary pending its formal registration.
28. On the other hand, I note that Appellant did not adduce any evidence at trial that they had been allocated the subject picking and dropping slots along Accra Road. Apart submitting that the Respondent SACCO was registered after Mr. Stanely Kabuthi’s letter of 8th September 2004 which led to the allotment of the subject picking and dropping slots to the Respondent, no substantive evidence was adduced by the Appellant to impeach the Respondent’s claim.
29. Further, the Respondent did not lead any evidence that the allotment to the Respondents of the picking and dropping slots in question had been cancelled. To the extent that the allotment had not been cancelled, the same in my view still remained valid and the Respondent was therefore perfectly in law entitled to claim the same.
30. I have considered the Respondent’s evidence and submissions in the trial court and come to the conclusion that it proved his case on the balance of probabilities. The Appellant in this appeal has failed to established any of the ground enumerated in his memorandum of appeal.
31. Accordingly, I find no merit in this appeal and the same is hereby dismissed with costs.
32. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 19 TH DAY OF SEPTEMBER 2024
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Miss Wanjala………...for Appellant
…Nyakweba………...for Respondent.