Joseph Gicheru Muchiri v Chairman Kiangima Trading Centre & 2 others [2015] KECA 807 (KLR)

The court cautioned itself that, sitting as a second appellate court, it must resist the temptation of delving into matters of fact. Citing Kenya Breweries Ltd v Godfrey Odoyo, it held the restriction yields only where the lower courts considered matters they should not have, failed to consider matters they should have, or where the entire decision is perverse. The court then examined whether the lower courts had made such errors and found none.

DW2, a committee member present at the annual general meeting, testified that the regulations were enacted in 1997, a position confirmed by DW5, the committee secretary between 1997 and 1999. The regulations on record indicate they were unanimously passed on 25th November 1997. The appellant's contention that they were fraudulently backdated was not supported by any evidence, so the Court concurred with the two lower courts.

The appellant never denied the testimony that he went to the centre armed with a metal rod, threatened and insulted the clerk, and that his son took the weighing scale. Regulation 5(h) permits suspension of a grower who persistently misbehaves. The appellant was given an opportunity to apologize at the 19th January 1999 meeting, refused, and was banned in accordance with the regulations, rendering the ban legal.

The burden of proof of damages lay with the appellant. Since the ban was lawful, no damages could arise from it. Special damages pleaded (Kshs. 8,648 for fertilizer and Kshs. 23,000 for rehabilitation) were never proved. The appellant's attempt, in submissions on appeal, to raise the claim to Kshs. 552,040.60 was impermissible as that figure was never pleaded in the Plaint nor proved to the required standard.