Mike Mwadime v Jane Grace Wanja

3. The Appellant/ Respondent filed a Statement of Admission and Clarification dated 17/10/2024, in response to the Statement of Claim. The Respondent/Appellant admitted receiving the Kshs. 750,000/= from the Claimant/ Respondent for the delivery of the Red Macaw Birds. 4. He brought in the birds to Mombasa ready for delivery but the birds contracted severe flu and died. The death was an act of God and the Clamant/ Respondent was duly notified. It was proposed that a further Kshs. 800,000/=deposited to that other set of birds can be delivered in 30 days, but it appears that the said proposal was not accepted. 5. The Respondent/ Appellant being unable to refund the money proposed that he repays the same in monthly instalments of Kshs. 10,000/=, and pleaded with the Claimant/ Respondent to understand his position and allow him to once again supply a replacement of the dead birds. 6. The parties were granted time to negotiate with a view of recording a consent, in default, matter to proceed for hearing. The parties did not settle. At the hearing date, the parties by consent proceeded by way of documents. The trial court after considering the pleadings on record, the defence that the birds died as an act of God and that the business transaction was void ab initio was dismissed. Judgment was entered in favour of the Claimant/ Respondent for Kshs. 750,000/=. Each party was to bear its own costs. Page 2 of 7 F. Wangari, J.

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7. Being dissatisfied, the Appellant appealed against the judgment of the court through the Memorandum of Appeal dated 29/11/2024 on grounds that the learned Adjudicator erred in both law and fact for failing to consider that he parties engaged in wildlife trade without permit, failing to find that a special license was required to conduct the wildlife trade, and that he court aided the Claimant to receive money paid out of illegal business. 8. The trial court was also faulted for failing to consider the Submissions by the Respondent / Appellant on the illegality of the business, and failing to hold that the sale of exotic birds is prohibited under CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora), due to poaching and illicit trade which is what the parties were doing. It was prayed that the appeal be allowed and judgment of the trial court be set aside. He also prayed for costs of the appeal. 9. The appeal was canvassed by way of written submissions. The Appellant in their submissions dated 18/03/2025 cited Section 99 of the Wildlife Conservation and Management Act, 2013 prohibits any dealings with wildlife species into and from Kenya without permit issued under the Act. The Appellant also relied on Article 2 (5) and (6) of the Constitution of Kenya, and various authorities as per the submissions in support of his case that the trade was an illegality and the court cannot sanction such a transaction. Page 3 of 7 F. Wangari, J.

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10. The Respondent in her submissions dated 13/06/202 submitted that the Appellant had admitted owing the Respondent the amount as claimed. The Appellant cannot introduce new evidence by way of written submissions. Having failed to raise the issue of validity of contract, he cannot be allowed to have a second bite of the cherry. Analysis 11. Having perused through the pleadings on record, the issues for determination are; a. Whether the appeal has merits b. Who bears the costs 12. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: “… Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …” 20. It is not disputed that the Appellant admitted owing the Respondent Kshs. 750,000/= as claimed. This is done through the letter dated 08/10/2024 and the Statement of Admission and Clarification dated 17/10/2024. The Appellant Page 4 of 7 F. Wangari, J.

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sought for time to settle with the Respondent, but the negotiations were not successful. 21. Judgment was entered based on the admission by the Appellant, and the evidence introduced at the submissions stage. The trial court stated that the Appellant had no business taking the Respondent’s money. I do agree with the finding of the court only to the extent of admission by the Appellant. 22. I however find fault in the determination on the evidence introduced at the submissions stage. It is a well established principle that submissions do not constitute evidence. Submissions is based on the evidence formally tendered in court, and any new evidence adduced at the submissions stage ought to be disregarded. 23. In the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR where it was held as follows: “Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute Page 5 of 7 F. Wangari, J.

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evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” 24. I find that the Appellant having admitted owing the Respondent the money as claimed, he cannot come and dispute the validity of the transaction between the parties by way of written submissions, yet he had the opportunity to do the same in the pleadings and during trial. The evidence being introduced at the submissions stage is hereby disregarded. I find that the appeal lacks merits and is hereby dismissed. 25. On costs, the Appellant’s appeal having been dismissed, I exercise this court’s discretion and have the Appellant meet the Respondent’s costs. Determination 13. Following the foregone discourse, the upshot is that the following orders do hereby issue; a. That the appeal lacks merits and is hereby dismissed. b. Costs awarded to the Respondent. It is so ordered. Dated, signed and delivered at Mombasa this 05th day of December, 2025 ……………………….. HON. F. WANGARI JUDGE Page 6 of 7 F. Wangari, J.

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In the presence of; N/A by the Appellant Ms. Were Advocate h/b for Mr. Muchoki Advocate for the Respondent Ms. Salwa, Court Assistant Page 7 of 7 F. Wangari, J.

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