Cleopas Mutinda Masaku v Dib Bank of Kenya

3. 4. That the Learned Trial Adjudicator, erred in law and fact by holding that the Claimant and/or the Appellant needed to adduce a Bank Statement to substantiate his proof of payment, other than relying on Transactional Slip; 5. That the Learned Trial Adjudicator erred in law and fact by referring to Richard Mwau as a third party, yet according to the agency law, an auctioneer is an agent of a principal, thereby arriving at an erroneous Judgment; 6. That the Learned Trial Adjudicator, erred in law and fact by holding that payments as paid by the Respondent, to a "third party" to be justifiable to the detriment of the person who actually paid, being the Claimant and/or Appellant himself; 7. That the Learned Trial Adjudicator, erred in law and fact by considering a fact that was not in dispute bordering on whether the Claimant paid Kenya Shillings Eight Hundred Thousand only (Kshs.800,000/=) as the Respondent did not challenge receiving the money, hence the issue of refund to the alleged third party; 8. That the Learned Trial Adjudicator, erred in law and fact by finding that a refilled by the Respondent to a party other than that which made payments was binding; 9. That the Learned Trial Adjudicator erred in law and fact by holding that the Auctioneer invoiced a third party, yet it is clear as day that the Auctioneer invoiced the Claimant who eventually made payments on the basis of the Invoice; 10. That the Learned Trial Adjudicator, erred in law and fact by delivering a Judgement through Judiciary's Case Tracking System and denied the Claimant/Appellant Thirty (30) days Stay of Execution yet if the Judgement was delivered virtually, the same would have been pleaded as a matter of right; and 11. Last but not least, the Learned Trial Adjudicator erred in law and fact by delivering a Judgement one day earlier contrary to the Judgement date set in Court by consent of parties, yet the Judgement was delivered on October 2024 through the Judiciary's Case Tracking System, bearing the date of 10th October 2024. The Appellant prays that: a. This Honourable Court be pleased to set aside the Judgment of the Trial Court in Claims Case NO. E6096 of 2024 that was delivered on 9th October 2024, and dated 10th October 2024. b. This Appeal be allowed c. The Cost of this Appeal be awarded to the Appellant. The Appellants Case; 4. It is the Appellant’s case that it entered into an agreement with the Respondent for the purchase of a salvage motor vehicle. 5. It is further the Appellant’s case that he deposited the sum of Kshs. 800,000 into Respondent’s bank account as evinced by the deposit slip. 6. It is further his case that the Respondent refused to hand over or deliver the salvage motor vehicle despite the fact that there was a deposit slip to prove that he had made the payment as consideration to the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19314/eng@2025-12-16 2

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7. Aggrieved by the turn of events, the Respondent moved to the small claims court seeking judgment to be entered in his favour for the sum of Kshs. 800,000 plus costs. 8. Upon hearing the case, the trial court dismissed the suit, making a finding that the Appellant did not prove his case given that there was a transaction between the Respondent and a third party. 9. The Appellant's submits that on 23rd October 2023, having agreed with the Respondent on the sale of the salvage motor vehicle mentioned herein, he personally deposited the agreed purchase price of Kshs.800,000/= into the Respondent's DIB Bank Account Number 27203005 as directed by the Auctioneers evidenced by the transaction slip. 10. This has not been denied or challenged by the Respondent and it is as clear as day and night that the Transaction Slip bears the amount of the duly effected payment and stamped by the Bank and as such it cannot amount to an intention of payment according to him. 11. It is its case that a transaction slip is a form, a notice or paper that documents the completion of a payment transaction and serves as a proof that the bank acknowledged receiving funds from the customer, and further, the bank stamped the said transaction slip and as such the Learned Trial Adjudicator grossly erred by misconstruing it as an intention of payment. 12. He submits that The Respondent did not adduce any evidence, refuting receipt of the said payments or even a claim of forgery, misrepresentation against the Respondent as they had previously transacted successfully through the same mode for purchase of another salvage. 13. It argues that this court should further bear in mind that the Respondent has never challenged or refuted receiving the said amount of Kshs.800, 000/= from the Appellant and as such this court should find that the learned Trial Adjudicator erred in her finding, thereby arriving at an erroneous conclusion to the detriment of the aggrieved Claimant. 14. He submits that the invoice clearly details the amount paid for the said Motor Vehicle Registration Number KCV 023R and that the invoice further indicates that the Claimant and or the Appellant herein was required to deposit the purchase price to the Respondent's bank account being DIB Bank Kenya Limited, Account No. 27030005 and Account Name Financing Facility Redemption. 15. It is his case that the above details are exactly the same details that the Respondent herein, in its email correspondence dated 19th October 2023, addressed Garam Investment Auctioneers and gave the account details through which the Appellant herein made payments on 23 rd November 2023. 16. With the above unchallenged and glaring evidence according to him, it is clear that the invoice was issued to the Claimant and or Appellant and as such, for the Learned Trial Adjudicator to hold that the invoice was issued to a third party was a monumental erring in not only the law but also the facts. 17. His evidential documents being the Auctioneer's Invoice and a Bank Slip in support of his case and that the evidence clearly showed how the Appellant deposited Kshs.800,000/= into the Respondent's bank account, a fact that was not controverted by any evidence cogent or otherwise. 18. In referring to and consequently finding that Richard Mwau was a third party was erroneous ab initio as the said individual was never a party to the suit since inception and therefore no witness statement and sworn affidavit from him and Mwau was never present to corroborate the Respondent's assertion. 19. He invites this court to take note that the Respondent never adduced a single documentary evidence to show that it had contracted him nor did it show any receipt of any payments from Richard Mwau, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19314/eng@2025-12-16 3

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alleged purchaser, which is a clear indication that Respondent was determined to deny the Appellant of his hard-earned money through a proxy, as it is not clear whether such a person exists. 20. He argues that no third-party proceedings were filed in the matter at the lower court and it was incumbent upon the Respondent to enjoin the said individual, if at all he exists, and by that failure, the Respondent should have sought recourse from the alleged third party. 21. It is trite law that a court of law can only determine a case or issues between the parties who are before it and not those parties who should have been or are yet to appear or be made parties to proceedings before it. 22. The Appellant believes that he proved his case, on a balance of probability, that he had an oral contract with the Respondent, with whom he had earlier purchased a motor vehicle under similar terms, and that an invoice containing the Respondent's bank account details and proceeded to deposit the agreed purchase price as evidenced by the Auctioneer's invoice and the Bank Transaction Slip. 23. The Respondent evaded providing any evidence and hence no proof in its pleadings and such this Honourable Court should confirm that the Learned Adjudicator erred. 24. Reliance is placed in William Kabogo Gitan vs. George Thuo & 2 Others [2010] ICLR 526 as follows: “ 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.” 25. He argues that it is uncontroverted Appellant paid the Respondent Kshs.800,000/= being the purchase price of the motor vehicle Registration number KCV 023R as evidenced by a stamped bank transaction slip, a fact that the Respondent has not challenged or refuted. 26. The Appellant argues that on his side indicated and proved with cogent evidence that he had made payments to the Respondent as there was existed a contract and as such the refund was to be duly made to the Appellant and not the fictitious third party. 27. It is its case that the refund was to be made to the party that made the payments, being the Appellant herein, as he had a binding contract and not the alleged party, 28. On another front he is aggrieved that the parties herein had consented to the date of judgement being 10th October 2024. However, it is was to the utter shock of the Appellant as the same was delivered on an earlier date without any reasons being provided or prior notice and to add salt to the wound, the judgement was postdated to 10th October 2024, not the exact date that the judgement was actually delivered. 29. The Appellant argues that it suffered an injustice as the judgement was delivered through the Judiciary's Case Tracking system and no option was granted to him of 30 days of stay of execution which is his fundamental right that would have been otherwise granted were the judgement to be given physically or virtually. The Appellant implores that this court finds that the learned adjudicator erred in her above findings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19314/eng@2025-12-16 4

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The Respondents Case: 30. The Respondent reiterates that the Appellant’s deposit slip lacked clear details of the payer, the originating account, or the purpose of the payment. 31. It submits that The Learned Adjudicator correctly held that a bank slip indicates an intention to transfer funds, it does not confirm the completion of the transaction, contrasting this with a bank statement, which provides a comprehensive and verified record. 32. It relies on the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 Others [2014] eKLR, where the Supreme Court emphasized the burden of proof, stating: “ The person who makes such allegations must lead evidence to prove the fact. She or he bears the initial legal burden of proof, which she or he must discharge.” 33. The Appellant’s reliance on a vague, handwritten deposit slip falls woefully short of this threshold. 34. A bank statement, as a system-generated record, would have conclusively linked the Appellant to the payment, an obligation he failed to meet according to the Respondent. 35. The Appellant’s assertion that the Respondent did not deny receiving Kshs. 800,000/- is a creative distortion. 36. The Respondent’s position is that it received the funds from Mr. Richard Mwau, not the Appellant, and the same was refunded him accordingly. 37. The Adjudicator rightly found that the Respondent produced a bank slip and an invoice from the auctioneer indicating that the Third Party was invoiced for the vehicle it submits. 38. The Appellant’s reliance on a proforma invoice is unpersuasive. A proforma invoice is a preliminary document, not a binding contract, and does not override the auctioneer’s subsequent dealings with Mr. Mwau. 39. In Kenindia Assurance Company Limited v New Nyanza Wholesalers Limited [2017] eKLR, the court held: “ In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration.” 40. The Appellant has failed to prove any such elements linking him to the Respondent. 41. The Appellant’s claim that the auctioneer acted as the Respondent’s agent does not automatically make him a party to the transaction. 42. The evidence points solely to Mr. Mwau, and the Appellant’s assertions are speculative at best. 43. It is the Respondent’s case that the Appellant failed to call witnesses from M/s Garam Auctioneers to authenticate his documents, a fatal omission that cannot now be remedied by appellate rhetoric. 44. The Respondent established that Mr. Mwau was the purchaser, as confirmed by his bid, payment, and refund request. 45. The Learned Adjudicator’s reference to him as a Third Party was in the context of his relationship to the Appellant, not the suit itself. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19314/eng@2025-12-16 5

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46. The Appellant’s claim that Mr. Mwau was never a party to the suit is irrelevant; he was the contractual counterparty to the Respondent, not a litigant. 47. It is the Respondents case that in the case of Bharminder Singh Osahan v Helicopters International Limited [2021] eKLR, Judge M.W. Muigai relied on the case of Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847 wherein Lord Haldane affirmed that: “ In the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it.” 48. The Appellant, according to the Respondent is a stranger to the contract, and he has no legal basis to demand a refund. The Respondent’s refund to Mr. Mwau, the contractual party, was lawful and binding. 49. Finally, it submits that the parties consented to judgment on 10th October 2024. The judgment, posted to the CTS on 9th October 2024 and postdated to 10th October 2024, caused no prejudice. Analysis and determination; Issues for determination: i. Whether the trial court properly evaluated the evidence and correctly found that the Respondent had discharged its burden of proof. ii. Whether the Appeal and reliefs sought by the Appellant are merited. 50. The Appellant was under a duty to prove that there was a contract between it and the Respondent. In Kenindia Assurance Company Limited v New Nyanza Wholesalers Limited [2017] eKLR, the court held: “ In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration.” 51. The Respondent’s confirmed that it received the funds from Mr. Richard Mwau, not the Appellant, and refunded them accordingly. 52. It is this court’s finding that a contract affects only the parties privy to the same. In so holding I am guided by the Case of Mark Otanga Otiendo -vs- Dennis Oduor Aduol (2021) eKLR where R.E Aburili, J considered the application of the doctrine of privity of contract and made reference to various Judicial decisions namely Savings & Lean (k) Ltd -vs- Kanjenje Karungaita & Another (2015) eKLR; Agricultural Finance Corporation -vs- Lengetia Ltd (1985) KLR 765; Kenya National Capital Corporation Ltd -vs- Albert Mario Cordeiro & Another, CA No. 274 of 2003 and William Muthee Muthomi -vs- Bank of Baroda, CA No. 91 of 2004 all Court of Appeal cases where the Court reiterated that; “a contract affects only parties to it and that it cannot be enforced by or against a non-party.” 53. In the Case of Agricultural Finance Corporation -vs- Lengelia Ltd (supra) Hancox, JA quoting with approval from Halsbury Laws of England, 3'' Edition Volume 8, Paragraph 110, reiterated that: “ As a general rule a contract affects only parties to it, it cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such a near relationship to the party from whom https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19314/eng@2025-12-16 6

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the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue upon the contract.” 54. In the instant suit the Appellant did not tender any evidence to prove that it had a contractual relationship with the Respondent. As such it had no legal basis of suing the Respondent. 55. Clearly there was proof that there was an offer, an acceptance, a consideration and no meeting of the minds or consensus as idem to prove the existence of a contract between the parties in this suit. 56. The Adjudicator rightly found that the Respondent produced a bank slip and an invoice from the auctioneer indicating that the Third Party was invoiced for the vehicle. 57. On the issue of the judgment uploading date, it is this court’s finding that the judgment, that was posted to the CTS on 9th October 2024 and postdated to 10th October 2024, caused no prejudice to the Appellant. 58. Article 159 of the Constitutional is invoked to cure such an anomaly. In any event Section 99 of the Civil Procedure Act creates the slip rule which helps the court to amend and cure such an anomaly which this court hereby invokes. 59. The Appellant has not showed that it suffered any prejudice by the fact that the judgement was posted a day before the actual date of delivery. He still had the time and the opportunity to challenge that through an Appeal, which he actually did by through the Appeal that is the subject of the judgment herein. 60. In determining whether the Appeal should succeed, I am further guided by the Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KLR where it was held as follows: “ (49) Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “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.” 61. In applying the above principles to the Appeal before this court, the court finds that the Appellant did not prove his case. 62. The adjudicator made the correct findings in the judgment and the court finds no reasons to interfere with it. Determination; 63. The Appeal lacks merit. Costs; 64. According to The Halsbury’s Laws of England, 4th ed Re-Issue (2010), Vol. 10, para. 16: “ The court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the court, a party 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 award them. This discretion must be https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19314/eng@2025-12-16 7

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exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice” [emphasis supplied]. 65. In Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR [13] it was held, to the same intent Mr. Justice (Rtd.) Kuloba thus writes in his work, Judicial Hints on Civil Procedure, 2nd ed. (Nairobi: Law Africa, 2011), p. 94: “ Costs are [awarded at] the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise: Chamilabs v. LaljiBhimji and Shamji Jinabhai Patel, High Court of Kenya, Civil Case No. 1062 of 1973.” 66. In the instant Appeal the Appellant shall shoulder the costs. Order; The Appeal is dismissed with costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16 TH DAY OF DECEMBER, 2025. ………… .………………………….. J. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19314/eng@2025-12-16 8

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