1. The Appellant had filed a suit vide a Plaint dated 21st October 2021 whereas the Respondent responded with an Defence dated 19th July 2022.
2. The prayers sought in the plaint are as follows:
a) General Damages.
b) Kshs. 1,213,500/-
c) Interest in (a) and (b) above at court rates
d) Costs.
3. A judgment was delivered on 16th of November 2023 dismissing the appellants suit in the trial court.
4. Being dissatisfied with the said judgment, the appellant has through a Memorandum of Appeal dated 29th November 2023 lodged an appeal challenging the entire judgment.
5. The Appellant prays that; -
a. The Appeal herein be allowed.
b. The Judgement of 16th of November 2023 be set aside wholly.
c. Costs of this appeal be awarded to the Appellant.
6. It advances the following grounds of Appeal to justify the grant of the said orders;
1. The Learned Trial Magistrate erred in law and in fact in failing to find and hold that the Appellant had made out a proper case for breach of contract.
2. The Learned Trial Magistrate erred in law and in fact in failing to find and hold that there was a valid contract between the Appellant and Respondent.
3. The Learned Trial Magistrate erred in law and in fact in failing to find and hold that the Appellant and Respondent did have representatives to enter into a valid contractual agreement.
4. The Learned Trial Magistrate erred in law and in fact by misdirecting himself in failing to acknowledge that the Appellant had provided uncontroverted evidence of receiving payment from the Respondent.
5. The Learned Trial Magistrate erred in law and fact in failing to consider the Appellant’s enrollment of students through the Respondent’s Child Protection Development Centre.
6. The Learned Trial Magistrate erred in law by not taking into consideration the common law principle of promissory estoppel created and flowing from one party to another.
7. The Learned Trial Magistrate erred in law and in fact by failing to weigh all the evidence placed before him and in failing to evaluate evidence in its totality before dismissing the suit with costs.
8. The Learned Trial Magistrate erred in law and in fact by granting the order of costs to the Respondent as this was not a mere academic exercise but rather a loss that has been occasioned to the Appellant on all fronts.
9. The Learned Trial Magistrate erred in law and fact by failing to balance the interests of the Appellant with the interests of the Respondent in dismissing the suit.
The appellant’s case;
7. It is its case that The Appellant’s was seeking unpaid school fees for students who were enrolled as a result of the agreement with and conduct of the Respondent.
8. It submits that The Appellant and Respondent began a mutually beneficial relationship in 2015 where the Respondent enrolled participants in its outreach program to the Appellant.
9. The Respondent dutifully paid school fee for all the participants enrolled with the Appellant which the appellant ignored.
10. It submits that the Trial Magistrate failed to consider the various evidence the Appellant submitted to the Court and instead issued a Judgement that is devoid of proper appreciation of the facts and law.
11. It argues that The trial Magistrate erred in law and in fact by failing to find that there is a valid contract between the Appellant and Respondent according to the appellant.
12. It is his case that The Learned Magistrate in his finding stated that there exists no contract between the parties because:
“ The Plaintiff claims fees arrears from the Defendant but does not demonstrate how the amounts were reached. The Plaintiff does not disclose the number of students since 2015 and how the alleged arrears of Kshs. 182,000 are arrived at. Further, the Plaintiff stated he enrolled 27 students in 2019 but does not state how much each student was required and when agreement to pay fees with the Defendant was made.”
13. It submits that trial Magistrate did not consider the appellant’s list and bundle of documents completely.
14. The Appellant refers to the Plaintiff’s List & Bundle of Documents the students who were enrolled in 2018 and 2019, the courses they were taking and the school fees to be paid by the Respondent.
15. The Appellant was not claiming for fee from 2015 and hence had no reason to provide the list of students for that year.
16. The Appellant submits that the Learned Magistrate completely ignored the evidence of payment extensively provided by the Appellant showing that indeed there was a relationship between the parties.
17. Reliance is placed in The Black’s Law Dictionary defines a contract as follows: -
“An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.”
18. The learned Judge in Caleb Onyango Adongo v Bernard Ouma Ogur [2020] eKLR relied on the case of RTS Flexible Systems Ltd vs. Molkerel Alois Muller GmbH& Co, KG (UK Production) (2010) UKSC14, [45] where 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.”
19. It submits that trial Magistrate ignored the fact that The Respondent’s conduct through payment as provided in the Bank statements and long relationship from 2015 is proof that there was a valid contract and a meeting of minds between the parties.
20. Reliance is placed in Rose and Frank Co. vs. J R Crompton & Bros Ltd (1923) 2 KB it was held that: “To create a contract there must be a common intention of the parties to enter into legal obligations, mutually communicated expressly or impliedly.”
21. Reliance is also placed in 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”
22. In Abdulkadir Shariff Abdirahim & Another vs. AwoSharriff 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.”
23. The Learned Magistrate failed to appreciate that an implied contract was formed and was in force and its existence.
24. It also submits that the Learned Magistrate erred in law and in fact by finding that the doctrine of promissory estoppel is not applicable and the learned Magistrate did not consider the evidence by the Appellant which went uncontroverted.
25. It is concerned that the Learned Magistrate failed to consider the obvious payments made to the Appellant by the Respondent and the evidence of PW1 without any justification in the judgment.
26. No evidence according to the Appellant was tendered by the Respondent to show that they specifically did not commission PW1 to find a school for their participants.
27. It submits that the Learned Magistrate further went ahead to find that the Appellant was liable to follow the policies of the Respondent.
28. No evidence was ever tendered by the Respondent to show that they ever communicated such policy to the Appellant.
29. According to Halsbury’s Laws of England 3rd Ed. Vol.15at paragraph 344, “When a party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the other who gave the promise or assurance cannot afterward be allowed to revert to their previous legal relations as if no such promise or assurance has been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced.”
30. In the case of High Court Civil Suit No. 20 Of 2020 Carol Construction Engineers Limited & another v National Bank of Kenya [2020] eKLR Justice Joel Ngugi in his determination gave the elements to determine promissory estoppel:
“From a scan of our decisional law, one must show the following five elements in order to establish estoppel by representation or promissory estoppel:
a. Representation: There must be a representation by the representor in words or by acts or conduct;
b. Reasonableness: The person relying must satisfy the Court that it was reasonable for them to rely on the representation;
c. Reliance: the victim must demonstrate that he was induced by the representation and in such reliance acted on it;
d. Detriment: the victim must show that in acting in reliance of the representation he suffered some detriment or changed his position; and
e. Unconscionability: the victim must demonstrate that it would be unconscionable to permit the representor to resile from the representation.
31. It submits that the Respondent made a representation by words and conduct by sending their representative who was the PW-1, that they would cater for the fee of all the students who came from their rehabilitation centre.
32. The appellant submits that the fact that the Respondent indeed paid the fee during the first years of the engagement shows that the Appellant was reasonable to rely on the representation of the Respondent and equally due to the said payment they relied on their representation with no cause for concern.
33. It submits that as was testified by PW2, the fee is always payable at the start of the term but because of the fact that the Respondent had paid at an agreed upon time, then the Appellant allowed for the students to be admitted. Had the Appellant known the Respondent would renege on the agreement they would never had admitted the students.
34. It submits that the doctrine of promissory estoppel in this matter is applicable.
35. It is the Appellant’s further submission that they rightfully deserve to be remunerated the amount of Ksh. 1,213,500/- owed for supply of training services to the Respondent’s students. This is due to the fact that the Appellant has proved to the required threshold that there was a valid contract entered into with the Respondent.
36. In the case of Kirugi & Anor. v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal stated that the burden was always on the Plaintiff to prove his case on the balance of probabilities, and that such burden was not lessened even if the case was heard by way of formal proof.
37. The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus:
“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 appropriate standard, he will lose.”
38. Sections 107,108 and 109 of the Evidence Act Cap 80 Laws of Kenya are clear that:
107(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 acts 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.
108 The burden of proof in a suit or proceeding lies in that person who would fail if no evidence at all were given an either side. Section 109 the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
The Respondent’s case;
39. It submits that the basics of a contract are well known and are as stated in William Muthee Muthami -vs- Bank of Baroda (2014) EKLR. The Court of Appeal observed that: -
"In the law of contract. The aggrieved party to an agreement must in addition, prove that there was offer, acceptance and consideration. It is only when those elements are available that an innocent party can bring a claim against the party in breach."
40. It also Places reliance on the case of Attorney General in Kabuto Contractors Limited Civil Appeal Number 638 of 2019) (2023) where the court observed that for a valid contract to exist the following requirements have to be met:
a) The terms of the contract must be valid and legally enforceable.
b) It must contain the necessary elements found in a contract which are offer, acceptance, considerations and mutuality.
c) Oral agreement must not violate laws and regulations.
41. In Civil Appeal No. 14 of 2019; Caleb Onyango —vs- Bernard Ouma Ogur, the court observed:
..... ...the foregone reveal several legal imperatives. They include that a contract may be in writing or implied, that whether a contract is in writing or is implied the elements of offer, acceptance and consideration must be proved, in implying a contract, the conduct of the parties, remains paramount, that an object approaching contract interpretation is to be adopted, among others."
42. The appellant maintains that there was an implied contract between the parties which could be informed from the conduct of the parties and the documents' filed in court.
43. In this case, there was no written contract. Therefore, this court is enjoined to ascertain whether the pleadings, the evidence and the general conduct of parties reveal any contract."
44. Reliance is placed in Transactional Computer Technology (Kenya)Ltd —vs- Principal Secretary, the National Treasury & Planning & 2 others (Civil Suit E321 of 2022) (2024) KEHX 2472; the court observed:
"For a contract to be implied in fact, the following conditions typically need to be met:
Offer and Acceptance: Actions of the parties must show that an offer was made by one party and accepted by another.
ii. Consideration: There must be a benefit to the promisor or a detriment to the promise, which was bargained for.
iii. Intention to create legal relations:
The parties must intend their actions to result in a legal obligation.
iv. Certainty: The key terms of the contract must be specifically certain.
45. In its pleadings, the Appellant claims that the parties entered into a collaborative agreement in the year 2015, and that in 2019, the outstanding arrears and that the respondent enrolled new students with a current outstanding arrears at Kshs. 1,027,500 /=.
46. The respondent submits that Appellant did not produce admission letters or fee structures for the 27 students, outlining how much each was supposed to pay.
47. There is no evidence of how the figures claimed have been arrived at according to the Respondent.
48. Furthermore according to the Respondent, no list of students or proof of class attendance in 2015 or 2019 was produced.
49. It submits that there was no offer, acceptance or consideration and therefore no valid contract.
50. The respondent being a body corporate cannot enter into a contract on its own unless represented by an authorized agent of the organization according to the Respondent.
51. The respondent denied entering into any agreement with the Appellant or referring the 27 students for training with a promise to pay for their training.
52. On the issue whether the doctrine of promissory estoppel is applicable,reliance is placed in the case of Sarah Njeri Mwobi —vs- John Kimani NjorogeCivil Appeal No.314 of 2009, the court stated that: -
The doctrine of estoppel operates as a principle of law which precludes a person from asserting something contrary to what is implied by a previous action or statement from that person.
According to Denning L.J: - "That principle (stated in the High tress case (1947) HB 130) does not create new causes of action where non-existed before. It only prevents a party from insisting upon his strict legal rights, when it would be in just to allow him to enforce them, having regard to the dealings which have taken place between the parties."
53. According to the respondent, there was no representation made by the respondent to the appellant in words or conduct about payment of fees for the alleged 27 students.
54. It submits that the record of appeal has omitted the respondent's list of documents filed at the lower court, which contains the respondent's finance manual.
Clause 5 of the said manual states as follows: -
Commitment to expenditure exists when there is a duly signed
LPO/Contract
Further, clause 5.1 states as follows: -
All invoices/ statements from creditors must be accompanied with supporting and approved documents (purchase requisition, LPO, delivery and Goods received notes).
55. It is submitted that in the absence of a written contract, the Appellant was required to prove that there was an LPO, memorandum of understanding or official communication from the appellant referring the 27 student for training and promising to pay, on which the appellant placed reliance.
56. It is its case that the Appellant did not produce evidence as a result of which it submits that the doctrine of promissory estoppel does not apply in this case.
57. It submits that he who alleges must prove its case under Sections 107 and 108 of the Evidence Act and the appellant did not prove the existence of a valid contract between the parties-written or oral.
Analysis and determination;
58. Following are the issues for determination;
1) Whether the court has jurisdiction.
2) Whether the appeal has merit.
3) Who shall bear costs.
Whether the court has jurisdiction.
59. The Supreme Court in the case of Nasra Ibrahim Ibren ...VS... Independent Electoral and Boundaries Commission & 2 Others, Supreme Court Petition No. 19 of 2018 is relevant. In this case, the court stressed the fact that jurisdiction is everything and that a court may even raise a jurisdictional issue suo motu. It said:-
"A jurisdictional issue is fundamental and can even be raised by the court suo motu as was persuasively and aptly stated by Odunga J in Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others Ex Parte Petronila Were (2014) eKLR. The learned Judge drawing from the Court of Appeal precedent in Owners and Masters of The Motor Vessel "Joey" vs.Owners and Masters of The Motor Tugs "Barbara" and "Steve B" [2008] 1 EA 367 stated thus:
«25. What I understand the Court to have been saying is that it is not mandatory that an issue of jurisdiction must be raised by the parties. The Court on its own motion can take up the issue and make a determination thereon without the same being pleaded..."
60. The court has looked at the record of appeal and established that the appellant didn’t file all the documents that the Respondent had relied on in the trial court and notes that the parties submissions were also left out.
61. The trial magistrate recorded the following in the proceedings of 30.1.23;
“Adult Male Sworn and States in English my name is John Kutua. I was AMREF Health Africa having referred as AMREF Kenya as Acting Programme Director. I signed a witness statement dated 12/1/2022 and adopt the same as evidence in chief. I have a defence filed in this matter. I rely on the same. Further I rely on the documents on the bundle of documents dated 2/9/2022 and wish to produce all the documents attached defence exhibit number 1.”
62. The said bundle of documents were left out of the Record of Appeal.
63. From the Judgment, the trial court seems to have considered the said list because the court made reference to them as follows;
“The Defendant has raised invoices not accompanied by local purchase orders (LPO) or memorandum of understanding as required in the Defendant payment policies”.
64. Order 42Rule 13(4) of the Civil Procedure Rules provides as follows: Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say-
a.the memorandum of appeal;
b.the pleadings;
c.the notes of the trial magistrate made at the hearing;
d.the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;
e.all affidavits, maps and other documents whatsoever put in evidence before the magistrate;
f.the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:
Provided that—
(ii)the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).
65. The absence of a written contract, the Appellant was required to prove that there was an LPO, memorandum of understanding or official communication from the appellant referring the 27 student for training and promising to pay, on which the appellant placed reliance.
66. The importance of these documents cannot be gain said in a case where there was no written contract.
67. In the opinion of this court, these documents would have helped the court relook at and re evaluate the evidence that was presented by the Respondent during the trial.
68. This court is disadvantaged and cannot make a conclusive determination of this appeal on the basis of an incomplete record of appeal.
69. The court is left ill equipped and unable to do a logical reassessment and analysis of evidence as expected in line with the principles as enunciated in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. principles in the circumstances and I so hold.
70. This Court did not dispense with the production of the missing critical documents and The Appellant did not seek leave to file a supplementary record of Appeal to cure the gap or the lapse even after the concern was raised by the Respondent.
71. In failing to include the aforementioned documents as part of the record, the court has been rendered jurisdictionless and I so hold.
72. In so finding, the court is guided by the findings in the case of Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others [2019] eKLR, where the Supreme Court considered an application for striking out the record of appeal which did not contain the record of proceedings before the Court of Appeal and stated:
(22)Under Rule 33(4), the contents of a Record of Appeal (from a court or tribunal in its appellate jurisdiction) contains the following documents from the first appellate court: the certificate, if any, certifying that the matter is of general public importance; the memorandum of appeal; the record of proceedings; and the certified decree or order. This Court has timely reiterated that under Rule 33(6) a document omitted may be filed in a Supplementary Record without leave of the Court with fifteen days of filing of the Record of Appeal; and subsequently with leave of the Court, the same document may be filed.
(23)It therefore emerges that failure to include the ‘record of proceedings of the court of Appeal” in the Record of Appeal does not automatically render the appeal filed before this Court fatal. For if the law contemplates that such an omitted document may be filed later, the same law cannot be said to render a Record of Appeal with that omission outrightly fatal. However we hasten to add that where a required document lacks in the Record of Appeal, devoid of a sufficient explanation for the omission, is a ground for the striking out of that Record of Appeal.
73. Where this is not done and no sufficient explanation for the omission has been provided, such record of appeal may be struck out.
74. In my considered view, the Appellant cannot seek refuge under Article 159 of the Constitution in a bid to cure the lapse.
75. In the case of Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others [2015] eKLR the Supreme Court considering the incompleteness of a record of appeal stated and held that without a record of appeal a Court cannot determine the appeal cause before it. Thus, if the requisite bundle of documents is omitted, the appeal is incompetent and defective, for failing the requirements of the law. A Court cannot exercise its adjudicatory powers conferred by law, or the Constitution, where an appeal is incompetent. An incompetent appeal divests a Court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues.
76. The appeal is incompetent taking away the court’s jurisdiction.
77. The 2nd issue falls by the wayside in the circumstances.
Costs;
78. In determining the issue of costs this court is guided by the principles as enunciated in the cases of Joseph Oduor Anode v Kenya Red Cross Society, Nairobi High Court Civil Suit No 66 of 2009; [2012] eKLR; and Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR); and Kuloba, R., (Ed) (2011) Judicial Hints on Civil Procedure Nairobi: Law Africa 2nd Edn p 94.
6. Mackay, JPH., (Baron of Clashfern) (Ed) (1991) Halsbury’s Laws of England
London: LexisNexis Butterworths 4th Edn Re-Issue Vol 10 para 16 is instructive on the Court’s discretion on costs in general, where it was stated that “ the Court has discretion as to whether costs are payable by one party to another, the amount of thosecosts and when they are to be paid. Where costs are in the discretion of the court, aparty has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially, it must not be exercised arbitrarily but in accordance with reason and justice. If the court decides to make an order about costs the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different.
79. The Appellant shall shoulder costs.
Order:
The appeal is struck out with costs.
2. The prayers sought in the plaint are as follows:
a) General Damages.
b) Kshs. 1,213,500/-
c) Interest in (a) and (b) above at court rates
d) Costs.
3. A judgment was delivered on 16th of November 2023 dismissing the appellants suit in the trial court.
4. Being dissatisfied with the said judgment, the appellant has through a Memorandum of Appeal dated 29th November 2023 lodged an appeal challenging the entire judgment.
5. The Appellant prays that; -
a. The Appeal herein be allowed.
b. The Judgement of 16th of November 2023 be set aside wholly.
c. Costs of this appeal be awarded to the Appellant.
6. It advances the following grounds of Appeal to justify the grant of the said orders;
1. The Learned Trial Magistrate erred in law and in fact in failing to find and hold that the Appellant had made out a proper case for breach of contract.
2. The Learned Trial Magistrate erred in law and in fact in failing to find and hold that there was a valid contract between the Appellant and Respondent.
3. The Learned Trial Magistrate erred in law and in fact in failing to find and hold that the Appellant and Respondent did have representatives to enter into a valid contractual agreement.
4. The Learned Trial Magistrate erred in law and in fact by misdirecting himself in failing to acknowledge that the Appellant had provided uncontroverted evidence of receiving payment from the Respondent.
5. The Learned Trial Magistrate erred in law and fact in failing to consider the Appellant’s enrollment of students through the Respondent’s Child Protection Development Centre.
6. The Learned Trial Magistrate erred in law by not taking into consideration the common law principle of promissory estoppel created and flowing from one party to another.
7. The Learned Trial Magistrate erred in law and in fact by failing to weigh all the evidence placed before him and in failing to evaluate evidence in its totality before dismissing the suit with costs.
8. The Learned Trial Magistrate erred in law and in fact by granting the order of costs to the Respondent as this was not a mere academic exercise but rather a loss that has been occasioned to the Appellant on all fronts.
9. The Learned Trial Magistrate erred in law and fact by failing to balance the interests of the Appellant with the interests of the Respondent in dismissing the suit.
The appellant’s case;
7. It is its case that The Appellant’s was seeking unpaid school fees for students who were enrolled as a result of the agreement with and conduct of the Respondent.
8. It submits that The Appellant and Respondent began a mutually beneficial relationship in 2015 where the Respondent enrolled participants in its outreach program to the Appellant.
9. The Respondent dutifully paid school fee for all the participants enrolled with the Appellant which the appellant ignored.
10. It submits that the Trial Magistrate failed to consider the various evidence the Appellant submitted to the Court and instead issued a Judgement that is devoid of proper appreciation of the facts and law.
11. It argues that The trial Magistrate erred in law and in fact by failing to find that there is a valid contract between the Appellant and Respondent according to the appellant.
12. It is his case that The Learned Magistrate in his finding stated that there exists no contract between the parties because:
“ The Plaintiff claims fees arrears from the Defendant but does not demonstrate how the amounts were reached. The Plaintiff does not disclose the number of students since 2015 and how the alleged arrears of Kshs. 182,000 are arrived at. Further, the Plaintiff stated he enrolled 27 students in 2019 but does not state how much each student was required and when agreement to pay fees with the Defendant was made.”
13. It submits that trial Magistrate did not consider the appellant’s list and bundle of documents completely.
14. The Appellant refers to the Plaintiff’s List & Bundle of Documents the students who were enrolled in 2018 and 2019, the courses they were taking and the school fees to be paid by the Respondent.
15. The Appellant was not claiming for fee from 2015 and hence had no reason to provide the list of students for that year.
16. The Appellant submits that the Learned Magistrate completely ignored the evidence of payment extensively provided by the Appellant showing that indeed there was a relationship between the parties.
17. Reliance is placed in The Black’s Law Dictionary defines a contract as follows: -
“An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.”
18. The learned Judge in Caleb Onyango Adongo v Bernard Ouma Ogur [2020] eKLR relied on the case of RTS Flexible Systems Ltd vs. Molkerel Alois Muller GmbH& Co, KG (UK Production) (2010) UKSC14, [45] where 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.”
19. It submits that trial Magistrate ignored the fact that The Respondent’s conduct through payment as provided in the Bank statements and long relationship from 2015 is proof that there was a valid contract and a meeting of minds between the parties.
20. Reliance is placed in Rose and Frank Co. vs. J R Crompton & Bros Ltd (1923) 2 KB it was held that: “To create a contract there must be a common intention of the parties to enter into legal obligations, mutually communicated expressly or impliedly.”
21. Reliance is also placed in 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”
22. In Abdulkadir Shariff Abdirahim & Another vs. AwoSharriff 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.”
23. The Learned Magistrate failed to appreciate that an implied contract was formed and was in force and its existence.
24. It also submits that the Learned Magistrate erred in law and in fact by finding that the doctrine of promissory estoppel is not applicable and the learned Magistrate did not consider the evidence by the Appellant which went uncontroverted.
25. It is concerned that the Learned Magistrate failed to consider the obvious payments made to the Appellant by the Respondent and the evidence of PW1 without any justification in the judgment.
26. No evidence according to the Appellant was tendered by the Respondent to show that they specifically did not commission PW1 to find a school for their participants.
27. It submits that the Learned Magistrate further went ahead to find that the Appellant was liable to follow the policies of the Respondent.
28. No evidence was ever tendered by the Respondent to show that they ever communicated such policy to the Appellant.
29. According to Halsbury’s Laws of England 3rd Ed. Vol.15at paragraph 344, “When a party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the other who gave the promise or assurance cannot afterward be allowed to revert to their previous legal relations as if no such promise or assurance has been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced.”
30. In the case of High Court Civil Suit No. 20 Of 2020 Carol Construction Engineers Limited & another v National Bank of Kenya [2020] eKLR Justice Joel Ngugi in his determination gave the elements to determine promissory estoppel:
“From a scan of our decisional law, one must show the following five elements in order to establish estoppel by representation or promissory estoppel:
a. Representation: There must be a representation by the representor in words or by acts or conduct;
b. Reasonableness: The person relying must satisfy the Court that it was reasonable for them to rely on the representation;
c. Reliance: the victim must demonstrate that he was induced by the representation and in such reliance acted on it;
d. Detriment: the victim must show that in acting in reliance of the representation he suffered some detriment or changed his position; and
e. Unconscionability: the victim must demonstrate that it would be unconscionable to permit the representor to resile from the representation.
31. It submits that the Respondent made a representation by words and conduct by sending their representative who was the PW-1, that they would cater for the fee of all the students who came from their rehabilitation centre.
32. The appellant submits that the fact that the Respondent indeed paid the fee during the first years of the engagement shows that the Appellant was reasonable to rely on the representation of the Respondent and equally due to the said payment they relied on their representation with no cause for concern.
33. It submits that as was testified by PW2, the fee is always payable at the start of the term but because of the fact that the Respondent had paid at an agreed upon time, then the Appellant allowed for the students to be admitted. Had the Appellant known the Respondent would renege on the agreement they would never had admitted the students.
34. It submits that the doctrine of promissory estoppel in this matter is applicable.
35. It is the Appellant’s further submission that they rightfully deserve to be remunerated the amount of Ksh. 1,213,500/- owed for supply of training services to the Respondent’s students. This is due to the fact that the Appellant has proved to the required threshold that there was a valid contract entered into with the Respondent.
36. In the case of Kirugi & Anor. v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal stated that the burden was always on the Plaintiff to prove his case on the balance of probabilities, and that such burden was not lessened even if the case was heard by way of formal proof.
37. The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus:
“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 appropriate standard, he will lose.”
38. Sections 107,108 and 109 of the Evidence Act Cap 80 Laws of Kenya are clear that:
107(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 acts 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.
108 The burden of proof in a suit or proceeding lies in that person who would fail if no evidence at all were given an either side. Section 109 the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
The Respondent’s case;
39. It submits that the basics of a contract are well known and are as stated in William Muthee Muthami -vs- Bank of Baroda (2014) EKLR. The Court of Appeal observed that: -
"In the law of contract. The aggrieved party to an agreement must in addition, prove that there was offer, acceptance and consideration. It is only when those elements are available that an innocent party can bring a claim against the party in breach."
40. It also Places reliance on the case of Attorney General in Kabuto Contractors Limited Civil Appeal Number 638 of 2019) (2023) where the court observed that for a valid contract to exist the following requirements have to be met:
a) The terms of the contract must be valid and legally enforceable.
b) It must contain the necessary elements found in a contract which are offer, acceptance, considerations and mutuality.
c) Oral agreement must not violate laws and regulations.
41. In Civil Appeal No. 14 of 2019; Caleb Onyango —vs- Bernard Ouma Ogur, the court observed:
..... ...the foregone reveal several legal imperatives. They include that a contract may be in writing or implied, that whether a contract is in writing or is implied the elements of offer, acceptance and consideration must be proved, in implying a contract, the conduct of the parties, remains paramount, that an object approaching contract interpretation is to be adopted, among others."
42. The appellant maintains that there was an implied contract between the parties which could be informed from the conduct of the parties and the documents' filed in court.
43. In this case, there was no written contract. Therefore, this court is enjoined to ascertain whether the pleadings, the evidence and the general conduct of parties reveal any contract."
44. Reliance is placed in Transactional Computer Technology (Kenya)Ltd —vs- Principal Secretary, the National Treasury & Planning & 2 others (Civil Suit E321 of 2022) (2024) KEHX 2472; the court observed:
"For a contract to be implied in fact, the following conditions typically need to be met:
Offer and Acceptance: Actions of the parties must show that an offer was made by one party and accepted by another.
ii. Consideration: There must be a benefit to the promisor or a detriment to the promise, which was bargained for.
iii. Intention to create legal relations:
The parties must intend their actions to result in a legal obligation.
iv. Certainty: The key terms of the contract must be specifically certain.
45. In its pleadings, the Appellant claims that the parties entered into a collaborative agreement in the year 2015, and that in 2019, the outstanding arrears and that the respondent enrolled new students with a current outstanding arrears at Kshs. 1,027,500 /=.
46. The respondent submits that Appellant did not produce admission letters or fee structures for the 27 students, outlining how much each was supposed to pay.
47. There is no evidence of how the figures claimed have been arrived at according to the Respondent.
48. Furthermore according to the Respondent, no list of students or proof of class attendance in 2015 or 2019 was produced.
49. It submits that there was no offer, acceptance or consideration and therefore no valid contract.
50. The respondent being a body corporate cannot enter into a contract on its own unless represented by an authorized agent of the organization according to the Respondent.
51. The respondent denied entering into any agreement with the Appellant or referring the 27 students for training with a promise to pay for their training.
52. On the issue whether the doctrine of promissory estoppel is applicable,reliance is placed in the case of Sarah Njeri Mwobi —vs- John Kimani NjorogeCivil Appeal No.314 of 2009, the court stated that: -
The doctrine of estoppel operates as a principle of law which precludes a person from asserting something contrary to what is implied by a previous action or statement from that person.
According to Denning L.J: - "That principle (stated in the High tress case (1947) HB 130) does not create new causes of action where non-existed before. It only prevents a party from insisting upon his strict legal rights, when it would be in just to allow him to enforce them, having regard to the dealings which have taken place between the parties."
53. According to the respondent, there was no representation made by the respondent to the appellant in words or conduct about payment of fees for the alleged 27 students.
54. It submits that the record of appeal has omitted the respondent's list of documents filed at the lower court, which contains the respondent's finance manual.
Clause 5 of the said manual states as follows: -
Commitment to expenditure exists when there is a duly signed
LPO/Contract
Further, clause 5.1 states as follows: -
All invoices/ statements from creditors must be accompanied with supporting and approved documents (purchase requisition, LPO, delivery and Goods received notes).
55. It is submitted that in the absence of a written contract, the Appellant was required to prove that there was an LPO, memorandum of understanding or official communication from the appellant referring the 27 student for training and promising to pay, on which the appellant placed reliance.
56. It is its case that the Appellant did not produce evidence as a result of which it submits that the doctrine of promissory estoppel does not apply in this case.
57. It submits that he who alleges must prove its case under Sections 107 and 108 of the Evidence Act and the appellant did not prove the existence of a valid contract between the parties-written or oral.
Analysis and determination;
58. Following are the issues for determination;
1) Whether the court has jurisdiction.
2) Whether the appeal has merit.
3) Who shall bear costs.
Whether the court has jurisdiction.
59. The Supreme Court in the case of Nasra Ibrahim Ibren ...VS... Independent Electoral and Boundaries Commission & 2 Others, Supreme Court Petition No. 19 of 2018 is relevant. In this case, the court stressed the fact that jurisdiction is everything and that a court may even raise a jurisdictional issue suo motu. It said:-
"A jurisdictional issue is fundamental and can even be raised by the court suo motu as was persuasively and aptly stated by Odunga J in Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others Ex Parte Petronila Were (2014) eKLR. The learned Judge drawing from the Court of Appeal precedent in Owners and Masters of The Motor Vessel "Joey" vs.Owners and Masters of The Motor Tugs "Barbara" and "Steve B" [2008] 1 EA 367 stated thus:
«25. What I understand the Court to have been saying is that it is not mandatory that an issue of jurisdiction must be raised by the parties. The Court on its own motion can take up the issue and make a determination thereon without the same being pleaded..."
60. The court has looked at the record of appeal and established that the appellant didn’t file all the documents that the Respondent had relied on in the trial court and notes that the parties submissions were also left out.
61. The trial magistrate recorded the following in the proceedings of 30.1.23;
“Adult Male Sworn and States in English my name is John Kutua. I was AMREF Health Africa having referred as AMREF Kenya as Acting Programme Director. I signed a witness statement dated 12/1/2022 and adopt the same as evidence in chief. I have a defence filed in this matter. I rely on the same. Further I rely on the documents on the bundle of documents dated 2/9/2022 and wish to produce all the documents attached defence exhibit number 1.”
62. The said bundle of documents were left out of the Record of Appeal.
63. From the Judgment, the trial court seems to have considered the said list because the court made reference to them as follows;
“The Defendant has raised invoices not accompanied by local purchase orders (LPO) or memorandum of understanding as required in the Defendant payment policies”.
64. Order 42Rule 13(4) of the Civil Procedure Rules provides as follows: Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say-
a.the memorandum of appeal;
b.the pleadings;
c.the notes of the trial magistrate made at the hearing;
d.the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;
e.all affidavits, maps and other documents whatsoever put in evidence before the magistrate;
f.the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:
Provided that—
(ii)the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).
65. The absence of a written contract, the Appellant was required to prove that there was an LPO, memorandum of understanding or official communication from the appellant referring the 27 student for training and promising to pay, on which the appellant placed reliance.
66. The importance of these documents cannot be gain said in a case where there was no written contract.
67. In the opinion of this court, these documents would have helped the court relook at and re evaluate the evidence that was presented by the Respondent during the trial.
68. This court is disadvantaged and cannot make a conclusive determination of this appeal on the basis of an incomplete record of appeal.
69. The court is left ill equipped and unable to do a logical reassessment and analysis of evidence as expected in line with the principles as enunciated in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. principles in the circumstances and I so hold.
70. This Court did not dispense with the production of the missing critical documents and The Appellant did not seek leave to file a supplementary record of Appeal to cure the gap or the lapse even after the concern was raised by the Respondent.
71. In failing to include the aforementioned documents as part of the record, the court has been rendered jurisdictionless and I so hold.
72. In so finding, the court is guided by the findings in the case of Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others [2019] eKLR, where the Supreme Court considered an application for striking out the record of appeal which did not contain the record of proceedings before the Court of Appeal and stated:
(22)Under Rule 33(4), the contents of a Record of Appeal (from a court or tribunal in its appellate jurisdiction) contains the following documents from the first appellate court: the certificate, if any, certifying that the matter is of general public importance; the memorandum of appeal; the record of proceedings; and the certified decree or order. This Court has timely reiterated that under Rule 33(6) a document omitted may be filed in a Supplementary Record without leave of the Court with fifteen days of filing of the Record of Appeal; and subsequently with leave of the Court, the same document may be filed.
(23)It therefore emerges that failure to include the ‘record of proceedings of the court of Appeal” in the Record of Appeal does not automatically render the appeal filed before this Court fatal. For if the law contemplates that such an omitted document may be filed later, the same law cannot be said to render a Record of Appeal with that omission outrightly fatal. However we hasten to add that where a required document lacks in the Record of Appeal, devoid of a sufficient explanation for the omission, is a ground for the striking out of that Record of Appeal.
73. Where this is not done and no sufficient explanation for the omission has been provided, such record of appeal may be struck out.
74. In my considered view, the Appellant cannot seek refuge under Article 159 of the Constitution in a bid to cure the lapse.
75. In the case of Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others [2015] eKLR the Supreme Court considering the incompleteness of a record of appeal stated and held that without a record of appeal a Court cannot determine the appeal cause before it. Thus, if the requisite bundle of documents is omitted, the appeal is incompetent and defective, for failing the requirements of the law. A Court cannot exercise its adjudicatory powers conferred by law, or the Constitution, where an appeal is incompetent. An incompetent appeal divests a Court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues.
76. The appeal is incompetent taking away the court’s jurisdiction.
77. The 2nd issue falls by the wayside in the circumstances.
Costs;
78. In determining the issue of costs this court is guided by the principles as enunciated in the cases of Joseph Oduor Anode v Kenya Red Cross Society, Nairobi High Court Civil Suit No 66 of 2009; [2012] eKLR; and Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR); and Kuloba, R., (Ed) (2011) Judicial Hints on Civil Procedure Nairobi: Law Africa 2nd Edn p 94.
6. Mackay, JPH., (Baron of Clashfern) (Ed) (1991) Halsbury’s Laws of England
London: LexisNexis Butterworths 4th Edn Re-Issue Vol 10 para 16 is instructive on the Court’s discretion on costs in general, where it was stated that “ the Court has discretion as to whether costs are payable by one party to another, the amount of thosecosts and when they are to be paid. Where costs are in the discretion of the court, aparty has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially, it must not be exercised arbitrarily but in accordance with reason and justice. If the court decides to make an order about costs the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different.
79. The Appellant shall shoulder costs.
Order:
The appeal is struck out with costs.