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to any company, any corporation or any individual in direct or indirect competition with the Respondent; c. The Appellant shall take out insurance policies that are required and acceptable to the Respondent; d. The Contract shall continue until and unless it is terminated with or without cause by either party giving 30 days' notice in writing. 3. From 23rd January 2017 the Appellant diligently performed his part of the Contract until 4th January 2022, when the Respondent without justifiable cause and in breach of Clause 3 of the Contract terminated the Appellant's services without serving the Appellant a written notice or any reason why the Respondent terminated the contract. 4. The Appellant set out particulars of breach of Contract by the Respondent as follows: a. Failing to assign the Appellant consignment for transport and delivery; b. Failing to give reasons for the failure to assign the Appellant services; c. Failing to give the Appellant a written notice of termination. d. Keeping the Appellant’s motor vehicles grounded without work; e. Denying the Appellant to source for business elsewhere and yet they were not giving him any assignments; f. Breaching the contract. 5. That by reason of the foregoing the Appellant remained out of business for a period of 30 days until 15th February, 2022 when he issued a demand notice to the Respondent. On the same day the Respondent issued the Appellant with a written notice terminating the agreement without giving any justifiable reason for the termination. 6. That the Appellant for 35 days was out of business and could not source for business from elsewhere as he was tied to the transport contract of service. The Appellant during that period lost business and income and has suffered damage and loss. 7. That on average the Appellant was making an income of Kshs.360,000 per week. From 4th January,2022 to 15th March, 2022 the Plaintiff was not working for 9 weeks and he lost income of Kshs.3,240,000.00 and he claims damages for loss of income and breach of contract. Respondent’s case 8. The Respondent denied the Appellant’s claim vide the Statement of Defence dated 3rd October 2022. The Respondent averred that it did not terminate the services of the Appellant as alleged, but instead that the contract between the parties was a pre-qualification contract and or framework agreement by which the Respondent had pre-qualified the Appellant among other service providers. The Contract placed no obligation on the Respondent to order services from the Appellant but only added the Appellant to its panel of transport service providers and that the Respondent was only to engage the Appellant as and when their services were needed. 9. The Respondent denied the particulars of breach of contract as particularized in the plaint and reiterated that it was not bound to assign the Appellant consignment for transport and that the Appellant’s services were to be offered from time to time according to the business needs of the Respondent in line with clause 2 of the Parties’ contract. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14743/eng@2025-02-03 2

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10. The Respondent further denied that the Appellant was out of business for 30 days until the 15th of February 2022 and that even if the same were the case, the Respondent averred that no cause of action lied against the Respondent as a result thereof. 11. The Respondent maintained that it only terminated its Contract with the Appellant on the 15th of February 2022 in line and in strict adherence with clause 3 of the Parties’ contract. 12. The Respondent denied that any demand/notice to sue had ever been served upon them. 13. The Respondent prayed that the Appellant’s suit be dismissed with costs. 14. The case proceeded for hearing with each Party calling one witness who adopted their respective witness statements filed and produced as exhibits documents listed by each Party. Upon considering the Parties’ pleadings, evidence and submissions, the trial court found that the Appellant had failed to prove his case on a balance of probability that the Respondent breached the contract and accordingly dismissed the Appellant’s suit with costs to the Respondent. 15. Being dissatisfied with the said judgment, the Appellant lodged the appeal herein vide a Memorandum of appeal dated 14/6/2023 raising 6 grounds of appeal as follows: 1. That the Honourable Magistrate erred in law and fact in finding that the Plaintiff had failed to prove that the Defendant had breached the Contract. 2. That the Honourable Magistrate erred in law and fact in finding that the agreement between the Plaintiff and the Defendant was to offer services to the Defendant from time to time. 3. That the Honourable Magistrate erred in law and fact in finding that agreement between the Plaintiff and the Defendant did not preclude the Plaintiff from sourcing business for other parties other than the Defendant and its competitors. 4. That the Honourable Magistrate erred in law and fact in failing to consider the evidence adduced by the Plaintiff that the Defendant terminated the service agreement without notice and without a justifiable reason. 5. That the Honourable Magistrate erred in law and fact by failing to award general damages for breach of contract. 6. That the Honourable magistrate erred in law and in fact by delivering a judgment that was against the evidence and submissions of the Defendant. 16. The Appellant sought to set aside the judgment and decree in Mavoko CMCC No. E508 of 2022 and have his suit against the Respondent allowed with costs. 17. The appeal was canvassed through written submissions. The Appellant filed submissions dated 15/05/2024 whilst the Respondent filed theirs dated 07/06/2024. Analysis And Determination 18. This being a first appeal, this court is reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another Limited v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post (1968) EA 123. (1958) EA page 424. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14743/eng@2025-02-03 3

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19. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that:A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. 20. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion. 21. In view of the above, I have perused the Record of Appeal and considered the evidence adduced before the trial court together with judgment and the Parties’ counsel rival submissions led herein and it is my considered view that the single issue for determination in the appeal is whether the Appellant who was the Plaintiff in the trial court proved his claim against the Respondent on a balance of probability. 22. The legal burden of proof in a civil case was discussed in the case of Evans Nyakwana v Cleophas Bwana Ongaro (2015) eKLR where the court stated as follows: “ As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden … is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.” 23. The question then is what amounts to proof on a balance of probability? Kimaru, J in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 stated that: “ In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14743/eng@2025-02-03 4

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24. Further in the case of Palace Investment Ltd v Geofrey Kariuki Mwenda & Another (2015) eKLR, the judges of Court of Appeal observed as follows: “ Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say: “ 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; the burden is discharged, but if the probability is equal, it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 25. The burden of proof at all times lies with the Plaintiff/Claimant to prove the case and not the Defendant/Respondent. In the instant case, the trial Magistrate in his judgment found that the Appellant had not proved his case on a balance of probability as the court was not able to ascertain the breach of the subject contract. 26. It is not in dispute that the Parties entered into a Transport/Road Carriage Contract dated the 23rd January 2017 (“the Contract”) which I have had the opportunity to read through. Based on grounds 2,3 and 4 raised in the Memorandum of Appeal, I will first determine whether the said Contract was for offering of services by the Appellant to the Respondent from time to time as was found by the trial court and if that was an error on the part of trial court. 27. Clause 2 provides for performance of the Contract and Sub-clause 2(a) provides as follows: “ The carrier shall collect, transport and deliver all consignments as may from time to time be instructed by the Company” 28. Clearly, the Contract provides for how the Appellant was to offer services which was as may from time to time to be instructed by the Respondent. It therefore follows that the trial Magistrate was correct in so finding and cannot be faulted for so finding. 29. Second, I will determine whether the Contract did not preclude the Appellant from sourcing business from other parties other than the Respondent and its competitors as was found by the trial court. Clause 18 of the Contract relates to Restrictions and provides that: “ During the term of this Agreement, the Carrier shall not directly or indirectly through its staff, employees, agents or otherwise, and will not permit any of its agents to solicit, initiate or encourage any offers or proposals relating to the provision of the services in this Agreement to any company, any corporation or any individual in direct or indirect competition with the company”. 30. What I gather from the above Clause is that, the Appellant was only restricted from soliciting, initiating or encouraging any offers or proposals relating to the provision of the services in the subject Contract. From the foregoing, nothing stopped the Appellant from entering into other different and or independent transport/carriage services contracts with other companies, corporations or individuals not in direct or indirect competition with the Respondent. In my view, the trial court understood the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14743/eng@2025-02-03 5

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Clause very well and I agree with his finding that the clause only precluded the Appellant from sourcing other business other that from the Respondent’s competitors only. 31. Third, I will determine whether the trial court erred in failing to consider that the Respondent terminated the service contract without notice and without a justifiable reason. I notice that this issue was not addressed in the trial court’s judgment. The Appellant stated that the Respondent breached Clause 3 of the contract by terminating the Appellant’s services without serving him with a written notice or reasons for the termination. That the Appellant remained out of business for a period of 30 days until 15th January 2022 when the Respondent issued the Appellant a written notice terminating the agreement. 32. Clause 3 of the Contract provides for effective date and termination; the contract was effective from 23/01/2017 and was to continue until and unless was terminated with or without cause by either party giving 30 days’ notice in writing. A perusal of the record reveals that the Appellant had for some time not been instructed to transport any consignment by the Respondent which prompted the Appellant to instruct their advocates who wrote a demand letter dated 15/2/2022 alleging breach of the Contract herein. The Respondent replied to the said demand letter vide their letter dated 15/2/2022 clarifying the allegation and notifying the Appellant’s advocates that either party to the contract would terminate the contract without cause by issuing a 30 days’ notice pursuant to Clause 3 of the Contract. Thereafter the Respondent issued the Appellant with a 30 days’ written notice of termination of the contract. The Respondent maintains that the contract herein was pre-qualified wherein the Respondent had prequalified the Appellant among other service providers to offer road carriage services. It was an express term of the contract that the Respondent would only order the services of the Appellant from time to time as and when their services were needed based on business needs in line with clause 2 (a) of the Parties contract. That the Parties contract placed no obligation on the Respond to order services of the Appellant or assign the Appellant consignments for transport nor did it require the Respondent to give reasons for not ordering the Appellant services, instead the contract only added the Appellant to the Respondent’s part of transport services. In the Respondent’s reply letter to the demand letter, they contended that the Appellant had acted in bad faith because the parties had been engaged in discussions on the contract and the Appellant’s services for the period no services were ordered. 33 This court observes that termination of the contract between the Parties could only be terminated by either Party giving a 30 days’ written notice without which the contract would be deemed to be subsisting. This court thus finds that the Contract was properly terminated and the Respondent cannot be said to have terminated the Contract without notice. The Appellant’s allegation on the nonissuance of the termination notice by the Respondent was therefore misapprehended and misplaced. 34. Finally, this court will determine whether the trial magistrate erred in failing to award general damages. It is clear that amongst the prayers sought by the Appellant is that of damages for loss of business at a rate of Kshs.360,000/- per week being Kshs.3,240,000.00. In cross examination (at page 92 of the Record of Appeal) the Appellant stated as follows: “ I can ask the Auditor to do an audit of loss. I don’t have one in court”. 35. The Appellant failed to strictly prove the damages for loss of income of Kshs.3,240,000.00 sought in the Plaint. 36. It is this court’s view that damages could only have been awarded if the court found that the contract had indeed been breached as was alleged by the Appellant and if thereafter the Appellant had strictly proved the alleged loss. The court having found that there was no breach of contract, it followed that the Appellant was not entitled to any damages. In addition, it is trite law that loss of income is a special https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14743/eng@2025-02-03 6

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damage which must be specifically pleaded and strictly proved. (See Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] eKLR) and David Murithi Githaiga v CFC Stanbic Bank Ltd (2019) eKLR. In the case of Nyamogo & Nyamogo Advocates –v- Barclays Bank of Kenya CA 69 of 2005 the Court of Appeal held that loss of business must be specifically pleaded and proven. 37. Accordingly, this court having found that the Appellant failed to prove breach of contract on the part of the Respondent it follows that this court agrees with the finding of the trial court that Appellant who was the Plaintiff in the trial court failed to prove his claim against the Respondent on a balance of probability and the appeal must fail. The appeal is dismissed with costs. 38. It is hereby so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 3RD DAY OF FEBUARY 2025. NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 3RD DAY OF FEBRUARY 2025. In the presence of : ………............................... for Appellant ……….............................. for Respondent ……………........................ Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14743/eng@2025-02-03 7

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