1. The Respondent’s case is that on 18.07.2020 the Appellant purchased a Printer model Toshiba e-studio 3508 LP, at the price of Kshs. 495,000.00 from the Respondent.
2. The Appellant it argues acknowledged receipt of the printer and the debt arising therefrom.
3. The Appellant then invoiced the amounts but failed, defaulted, refused, and or neglected to settle the said outstanding sum.
4. The printer which was valued at Kshs.495,000.00 was received and acknowledged by the Appellant according to the Respondent.
5. According to the Respondent,The appellant signed a delivery note and issued a cheque for Kshs.450,000 that was dishonoured upon presentation to the bank.
6. That prompted the Respondent to file a suit, in the Small Claims Court.
7. At the hearing, Respondent relied on the delivery note No. 4252 dated 8.07.2020 and the Invoice Ref. No. 17806 which indicated price of the printer as being Kshs. 495,900.00 and the Cheque No. 00531 dated17.09.2020 that was never processed due to lack of funds in the Respondent's Account.
8. After the hearing the parties the court found that the Respondent had made out a case for the grant of the order sought. Judgment was consequently entered the favor of the Respondent.
9. The Appellant herein being dissatisfied with the aforesaid judgement filed the Memorandum of Appeal dated 24.8.22 wherein it prays for the following orders;
1. )This appeal be allowed with costs in favour of the Appellant
2. )The Respondent's suit in the lower court being small claims case no.
E3490/ 2022 (Nairobi) be dismissed with costs to the appellant.
10. The appellant’s Defence during the hearing was predicated on the legal argument that there was no valid contract existed between the parties capable of enforcement by a court of law.
11. At the trial level,The appellant had also advanced an argument that there was no Offer and Acceptance and thus no contract.
12. It is its argument that an offer and acceptance must be 'consensus ad idem' meaning that both parties must agree on the same thing in the same sense or there must be uniformity of minds with an intention to create a legal relationship none according to the appellant existed.
13. It also argued that an agreement should be entered between parties who are competent enough to contract for there to be a contract.
14. Finally it argued that the agreement must be supported by consideration that is real and lawful.
Analysis and determination;
15. Being a first, appeal, this court can review, re-look at and analyze the evidence and the case that was before the trial court, and arrive at its own finding.
16. This must however, be within the framework of the principles set out in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
17. The court reminds itself that according to the Small Claims Court Act, this court’s jurisdiction is limited to points of law only.
18. In charles MwirigiMiriti -vs- Thananga Tea Growers Ltd & Anor (2014)eKLR at page 3 (highlighted), the court of Appeal held thus;
a. "It is trite law that there are three essential elements for a valid contract that is an offer, acceptance and consideration."
19. The court is satisfied that from the pleadings in lower court, there was no apparent offer and acceptance for there to be a crystallized agreement. The delivery notes are not stamped by Wincomp to prove receipt of the goods and the tax invoice is prepared by Mustek.
20. The Respondent submitted in the lower court that Wincomp issued a cheque in purported settlement of the claim.
21. The said cheque was issued by a company in the name of New Toner Cartridges Ltd a stranger to the contract. The cheque is not in Wincomp's name and no explanation was given to connect it to Wincomp.
22. The court has looked at the judgment and formed the informed opinion that the trial magistrate fell into error in law in that the trial court did not consider nor analyse the critical legal issues around what amounts to a contract.
Costs:
23. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion, is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, bepatent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so.In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied].
24. In the instant appeal of the since the appeal is successful,Respondent shall shoulder the costs of the appeal and I so hold.
Determination;
25. The trial court failed to evaluate the evidence that was placed before it. The judgement is flawed in the circumstances. The appeal has merit.
Order;
1. This appeal be allowed with costs in favour of the Appellant.
2. The Respondent's suit in the lower court being small claims case no. E3490/ 2022 (Nairobi) is dismissed with costs to the appellant.
3. Costs in the Small Claims Court and this Court to the Appellant.
2. The Appellant it argues acknowledged receipt of the printer and the debt arising therefrom.
3. The Appellant then invoiced the amounts but failed, defaulted, refused, and or neglected to settle the said outstanding sum.
4. The printer which was valued at Kshs.495,000.00 was received and acknowledged by the Appellant according to the Respondent.
5. According to the Respondent,The appellant signed a delivery note and issued a cheque for Kshs.450,000 that was dishonoured upon presentation to the bank.
6. That prompted the Respondent to file a suit, in the Small Claims Court.
7. At the hearing, Respondent relied on the delivery note No. 4252 dated 8.07.2020 and the Invoice Ref. No. 17806 which indicated price of the printer as being Kshs. 495,900.00 and the Cheque No. 00531 dated17.09.2020 that was never processed due to lack of funds in the Respondent's Account.
8. After the hearing the parties the court found that the Respondent had made out a case for the grant of the order sought. Judgment was consequently entered the favor of the Respondent.
9. The Appellant herein being dissatisfied with the aforesaid judgement filed the Memorandum of Appeal dated 24.8.22 wherein it prays for the following orders;
1. )This appeal be allowed with costs in favour of the Appellant
2. )The Respondent's suit in the lower court being small claims case no.
E3490/ 2022 (Nairobi) be dismissed with costs to the appellant.
10. The appellant’s Defence during the hearing was predicated on the legal argument that there was no valid contract existed between the parties capable of enforcement by a court of law.
11. At the trial level,The appellant had also advanced an argument that there was no Offer and Acceptance and thus no contract.
12. It is its argument that an offer and acceptance must be 'consensus ad idem' meaning that both parties must agree on the same thing in the same sense or there must be uniformity of minds with an intention to create a legal relationship none according to the appellant existed.
13. It also argued that an agreement should be entered between parties who are competent enough to contract for there to be a contract.
14. Finally it argued that the agreement must be supported by consideration that is real and lawful.
Analysis and determination;
15. Being a first, appeal, this court can review, re-look at and analyze the evidence and the case that was before the trial court, and arrive at its own finding.
16. This must however, be within the framework of the principles set out in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
17. The court reminds itself that according to the Small Claims Court Act, this court’s jurisdiction is limited to points of law only.
18. In charles MwirigiMiriti -vs- Thananga Tea Growers Ltd & Anor (2014)eKLR at page 3 (highlighted), the court of Appeal held thus;
a. "It is trite law that there are three essential elements for a valid contract that is an offer, acceptance and consideration."
19. The court is satisfied that from the pleadings in lower court, there was no apparent offer and acceptance for there to be a crystallized agreement. The delivery notes are not stamped by Wincomp to prove receipt of the goods and the tax invoice is prepared by Mustek.
20. The Respondent submitted in the lower court that Wincomp issued a cheque in purported settlement of the claim.
21. The said cheque was issued by a company in the name of New Toner Cartridges Ltd a stranger to the contract. The cheque is not in Wincomp's name and no explanation was given to connect it to Wincomp.
22. The court has looked at the judgment and formed the informed opinion that the trial magistrate fell into error in law in that the trial court did not consider nor analyse the critical legal issues around what amounts to a contract.
Costs:
23. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion, is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, bepatent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so.In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied].
24. In the instant appeal of the since the appeal is successful,Respondent shall shoulder the costs of the appeal and I so hold.
Determination;
25. The trial court failed to evaluate the evidence that was placed before it. The judgement is flawed in the circumstances. The appeal has merit.
Order;
1. This appeal be allowed with costs in favour of the Appellant.
2. The Respondent's suit in the lower court being small claims case no. E3490/ 2022 (Nairobi) is dismissed with costs to the appellant.
3. Costs in the Small Claims Court and this Court to the Appellant.