Vegpro Kenya Limited v Kennedy Achieng Owour T/A Achieng Owuor & Company Advocates & 1 other

4. Notably in the meantime when the appellant delayed in paying the decretal sum the 1st respondent instructed the 2nd respondent to execute the decree, through proclamation of the appellant’s assets. The 2nd respondent obtained a warrant of attachment and therefore incurred the auctioneer’s costs but the sale was halted. 5. At this stage, the question is; did the 1st respondent pay the 2nd respondent the Kshs 50,000 as alleged? The 2nd respondent has acknowledged receipt of Kshs 50,000 from the 1st respondent. The next question is, if the appellant instructed then the 1st respondent to pay the 2nd respondent Kshs 50, 000 and it was paid, how much money should the 1st respondent refund to the appellant? Isn’t it Kshs 128,233 less Kshs 50,000 giving rise to Kshs 78,233? Notably that is not the subject of the claim before the Small Claims Court’s case which is the subject of this appeal. 6. However, the legal issue, if not moral question remains as to whether the 1st respondent had the right to retain the overpayment in the manner he did. The adjudicator rightfully observed that, the 1st respondent improperly held the amount of Kshs 128,233 without regularizing the decree. I entirely concur. And whatever worth it may be, it is unprofessional to hold funds against the law and procedure and it is in the interest of justice and professional conduct that, the 1st respondent seek for an amended decree to justify utilization of the Kshs 128,233 of Kshs 78,233. 7. The court holds that the correct sum is Kshs 78,233 as the appellant from the outset never sought for refund of the subject overpayment, but directed the 1st respondent to pay or settle the 2nd respondent’s fees, which he did in the sum of Kshs 50,000. 8. The adjudicator has rightfully arrived at the correct conclusion that, the claim against the 1st respondent cannot succeed as at no time did the appellant pay him Kshs 150,000. 9. It is trite law that parties are bound by their pleading. Any response to a claim is founded or based on the claimant’s pleadings. In fact even if the 1st respondent merely denied receiving Kshs 150,000 from the appellant in a single sentence the appellant’s claim against him would still fail. 10. Furthermore, there is no evidence that the sum of Kshs 150,000 allegedly paid to the 2nd respondent was paid to be transmitted, held in trust or otherwise on behalf of the 1st respondent. The evidence availed does not prove any payment of the said sum to the 1st respondent. Consequently, the appellant’s claim against the 1st respondent was properly dismissed. Notably, appeals from the small claims court lie on matters of law only as stated under section 38 of the Small Claims Court Act as follow: - 11. (1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. (2) An appeal from any decision or order referred to in subsection (1) shall be final. In the case of Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR the Court of Appeal dealt with an appellate court’s mandate where an appeal is confined only to a question of law and stated as follows: “ This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina versus Mugiria [1983] KLR 78, Kenya Breweries Ltd versus Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another versus Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4198/eng@2026-03-12 2

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have considered or looking at the entire decision, it is perverse. See also the English case of Martin versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 where in, it was held inter alia that, where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court (s) and resist the temptation to treat findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.” 12. Further, the 2nd respondent was discharged from liability on the basis that, they denied knowledge of one Pius Ngundu Kasao who the appellant paid Kshs 150,000. That person was neither called as a witness nor joined in this matter as a third party. The moment the 2nd respondent filed their statement of response denying receipt of Kshs 150,000, the claimant was under duty to strictly prove the payment of Kshs 150,000. 13. Furthermore, the 2nd respondent from the parties herein and their description is an artificial entity. It has been sued to refund a sum of Kshs 150,000. Is there any evidence that, the 2nd respondent as “Direct “O” Auctioneers” received any money from the appellant. 14. In any case the appellant will not be prejudiced in that, it can always pursue the person who was paid the sum of Kshs 150,000 based on the evidence adduced. Furthermore, evidence reveals that, the auctioneer intends to pursue further payment from the appellant, they will have an opportunity to counter claim or enforce its right otherwise. 15. I note from the submissions herein by the appellant that, they argue that trial court misdirected itself on the principle of subrogation. However, I find that first and foremost the trial court did not dismiss the appellant’s case purely on the principle of subrogation. Therefore, the discussion by the court on that principle was an alternative finding and having held that the trial court properly dismissed the appellant’s claim for failure to support the pleadings with facts, a discussion of whether the principle of subrogation applies or not does not suffice. 16. It is also submitted that the 1st and 2nd respondents colluded in forcefully and unduly demanding Kshs 150,000 from the appellant for release of its motor. However, there is no evidence that was availed before the trial court of the alleged collusion. 17. The appellant also submits that, the 1st respondent has unlawfully enriched itself, that may be, if there is no proof that, the sum retained was though not procedurally retained but was based on a sound claim of payment of doctor’s and witness expenses. 18. Finally, I note that, in the entire appellant’s submission herein they do not address the salient findings of the trial court that: a. Had the appellant sought for a sum of Kshs 128,233 instead of Kshs 150,000 their prayer would have been granted b. That the relationship between Mr. Pius Ngundu and 2nd respondent was not established and the 2nd respondent having denied the claim, the claim against it fails 19. The afore findings were the basis of the dismissal of the appellant’s case, and therefore failure to address it means the appellant does not find fault with the same and supports dismissal of their case on that basis. 20. Pursuant to the aforesaid I find that the appeal herein has no merit and I dismiss it in its entirety with costs to the respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4198/eng@2026-03-12 3

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DATED, DELIVERED AND SIGNED ON THIS 12TH DAY OF MARCH 2026 GRACE L. NZIOKA JUDGE In the presence of: Mr. Njoroge H/B for Mr. Momanyi for the appellant Mr. Onduso for the 1st respondent N/A for the 2nd respondent Ms. Hannah: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4198/eng@2026-03-12 4

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