Barasa v Wanami (Civil Suit E235 of 2025) [2026] KEMC 715 (KLR)

5. The Defendant entered appearance and filed a Statement of Defence and Counterclaim dated 01st August 2025 admitting entering into a motor vehicle sale agreement with the Plaintiff as pleaded in the Plaint. 6. However, the Defendant averred that he was to clear the balance of the consideration upon the Plaintiff availing particulars of the MyCredit Limited loan for review of the terms of their agreement, but the Plaintiff failed to do so, leading to the repossession of the suit motor vehicle by MyCredit Limited. 7. The Defendant prayed that the Plaintiff’s suit be dismissed and judgment be entered against the Plaintiff on the counterclaim for: (a) Payment of Kshs. 777,100/= being refund of consideration (b) Costs of the suit (c) Interest at court rates 8. In response, the Plaintiff filed an amended Reply to the Defence and Counterclaim dated 28th August 2025, reiterating that it was incumbent upon the Defendant to clear the outstanding balance of the consideration for the Plaintiff to clear the loan for transfer of the suit motor vehicle to the Defendant. 9. He denied entering into another agreement with the Defendant over the sale of the suit motor vehicle other than the agreement dated 04th May 2024. 10. The Plaintiff urged this court to allow his suit and dismiss the Defendant’s counterclaim with costs. 11. Given the divergent positions taken by the parties herein regarding this suit and the counterclaim, this matter proceeded to full hearing for the parties herein to prove the averments in their pleadings on a balance of probabilities. 12. The evidence adduced before this court was as summarized below. EVIDENCE Plaintiff’s Case 13. PW1 Henry Masinde Barasa adopted his witness statement dated 21st May 2025 and further statement dated 28th August 2025 as his evidence in chief. His testimony was by and large a rendition of the averments in his pleadings summarized above thus it is needless to reproduce the same here.

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14. He also produced all the documents in his list of documents as exhibits. 15. In cross-examination, he admitted that there was no clause in the motor vehicle sale agreement (‘the agreement”) that MyCredit Limited was to repossess the suit motor vehicle if the Defendant fails to clear the balance of the consideration by August 2024. He also conceded that the agreement did not state whether the Defendant was to clear the MyCredit Limited loan. Defendant’s Case 16. DW1 Wycliffe Wanami Ndoli adopted his witness statement dated 01st August 2025 as his evidence in chief. He also produced all the documents accompanying his pleadings as exhibits. 17. His testimony was also a replica of the averments in his pleadings, summarized above. 18. He conceded in cross-examination that he was to settle the balance of the consideration by the end of August 2024. He also admitted that the agreement required the Plaintiff to facilitate the release of the suit motor vehicle’s logbook from MyCredit Limited upon him settling the balance of the consideration. 19. He denied breaching the agreement but admitted failing to settle the balance of the consideration by August 2024 as agreed in the agreement. 20. He added in re-examination that when he became unwell after execution of the agreement, he orally agreed with the Plaintiff to defer the payment of the outstanding consideration. ANALYSIS AND DETERMINATION 21. This court has given due regard to the pleadings, evidence, written submissions, and the authorities on record. 22. It is common ground that the parties herein executed the agreement for the sale of the suit motor vehicle upon which the Plaintiff received Kshs. 777,100/= being part payment of the consideration of Kshs. 1,800,000/=. 23. The parties herein are also in agreement that the Defendant did not settle the balance of the consideration by August 2024 as agreed in clause 4(b) of the agreement. Further, it is no disputed that the suit motor vehicle was repossessed from the Defendant

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by MyCredit Limited sometime in February 2025 when the Plaintiff failed to settle the loan he owed MyCredit Limited, which had been secured by the suit motor vehicle. 24. The Plaintiff blamed the Defendant for repossession of the suit motor vehicle since the Defendant reportedly failed to pay the balance of the consideration, which was to be used to settle the loan the Plaintiff owed MyCredit Limited. The Defendant, on the other hand, blamed the Plaintiff for repossession of the suit motor vehicle. Simply put, the parties herein were blaming each other for breach of the agreement. 25. It is settled law in this jurisdiction that 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(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides: 107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 26. Section 109 of the Evidence Act, on the other hand, stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. 27. A reading of the authorities above reveals that the parties herein had a legal duty of proving the averments in their respective pleadings on a balance of probabilities. 28. The suit and the counterclaim herein turn on the question of who breached the agreement. In the circumstances, it is this court’s view that the issues for determination are: who breached the agreement, and if it was breached, what remedies are available to either party. Who breached the agreement 29. The parties herein accused each other of breaching the agreement. The Black’s Law Dictionary, 9th Edition, Page 213, defines a breach of Contract as; “a violation of a contractual obligation by failing to perform one’s own promise, by repudiating it, or by interfering with another party’s performance. A breach may be one by non-performance or by repudiation or by both. Every breach gives

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rise to a claim for damages and may give rise to other remedies. Even if the injured party sustains no pecuniary loss, or is unable to show such loss, with sufficient certainty, he has at least a claim for nominal damages.” 30. The court in Gatobu M’ibuutu Karatho v Christopher Muriithi Kubai [2014]eKLR cited the High Court in Kampala case “Nakana Trading Co. Ltd – Versus Coffee Marketing Board 1990-1994 EA 448”, which dealt with the issue of breach of contract as follows:“In contract, a breach occurs when one or both parties fail to fulfill the obligations imposed by the terms since the contract between the parties was reduced into writing, the duty of the court is to look at the documents itself and determine whether it applies to existing facts.” 31. Guided by the authorities above, it follows that a party to an agreement is deemed to have breached an agreement if the guilty party fails to fulfil any of their obligations under the agreement. 32. This court will now proceed to determine whether the evidence led by the parties proved on a balance of probabilities a breach of the agreement on the part of the parties herein. 33. The Defendant conceded that, whereas he failed to pay the balance of the consideration by August 2024 per the agreement, he shared his financial challenges with the Plaintiff, who extended the consideration balance payment period. He relied on an acknowledgment note dated 04th May 2024 in support of his assertion. 34. A reading of the said acknowledgement notes shows that the terms of the acknowledgement were limited to the Plaintiff acknowledging receipt of Kshs. 200,000/= from the Defendant as part payment of the outstanding consideration. That acknowledgment also included a term to the effect that the parties were to discuss other details soon. Those other details, which were to be discussed soon by the parties herein, at least from the evidence on record, remain unknown to date. 35. ‘The other details to be discussed soon’ between the parties remained an anticipated contract. Courts cannot supervise an anticipated contract as eloquently

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explained in Albright Holdings Ltd v National Social Security Fund Board Trustees [2005] KEHC 288 (KLR) as follows: “Where a contract is “subject to contract” no agreement arises until a formal contract is signed. See (1) Triventon Estates vs. Wearwell (Ltd) (1974) 1 All ER Lord Denning MR at page 217 had this to say; “…… for over a hundred years, the courts have held that the effect of the words “subject to contract” is that the matter remains in negotiation until a formal contract is executed”. (2)Halsbury Laws of England – 4th Edition Paragraph 265 page 145 “where an agreement is made in the above mentioned circumstances (subject to contract), even a signed written offer cannot be accepted so as to conclude a binding contract, the reason being that the offeror clearly does not intend to be bound at this stage”. 36. Given the authorities above, the acknowledgement note herein cannot be relied upon to prove on a balance of probabilities that there was an agreement between the parties herein for variation of clause 4 (b) of the agreement on payment of the balance of the consideration. 37. The duty of this court is to interpret and enforce the agreement herein as it is. Odero J in Muturi v Ndungwa (Small Claims Appeal E001 of 2025) [2026] KEHC 1127 (KLR) reiterated a court’s duty to enforce a contract made between parties as is, as follows: “17.It was not for the adjudicator to impute a delivery clause when so such clause existed in the contract. It is trite law that the duty of a court is to enforce the contract as made between the parties. The court cannot purport to re-write a contract to include terms which the court feels ought to have been included. 18.In the case of Attorney General of Belize -Vs- Belize Telcom Ltd & Another (2009), WLR it was stated that“The court does not make a contract for the parties. The court will not even improve contract which the parties have made for themselves. If the express terms are perfectly clear and free from ambiguity, there is no choice to be made between different meaning. The clear terms must be applied even if the court thinks some other terms could have been more suitable.”

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19.Therefore I find that the alleged breach of the contract by the Appellant herein has not been proved. The contract between the parties was clear and unambiguous. There cannot be a breach of a term which did not exist in the contract. In the circumstances I do fault the decision of the adjudicator to void the contract.”(Emphasis added). 38. The foregoing shows that the Defendant did not prove on a balance of probabilities that the parties herein agreed to extend the time frame within which the Defendant was to pay the balance of the consideration. 39. It thus follows that the failure by the Defendant to pay the balance of the consideration by August 2024 was a fundamental breach of the agreement, since the payment of the balance of the consideration as agreed in the agreement was a condition per the provisions of the Sale of Goods Act 40. Turning to the question of whether the Plaintiff breached the agreement, the Defendant stated that the repossession of the suit motor vehicle by MyCredit Limited was proof that the Plaintiff breached the agreement. 41. The Plaintiff distanced himself from the alleged breach by stating that the repossession of the suit motor vehicle was caused by the Defendant’s failure to pay the balance of the consideration as agreed, which the parties herein had reportedly agreed to be used in settling the MyCredit Limited loan. 42. Clause 6 of the agreement expressly provided that the Plaintiff was to facilitate the release of the suit motor vehicle’s logbook held by MyCredit Limited to the Defendant upon the Defendant paying the full consideration. 43. Nothing in the said clause 6 suggests that the parties herein agreed that the balance of the consideration was to be used to settle the MyCredit Limited Loan. If the parties herein had agreed as much, nothing prevented them from expressly stating as much in the agreement. 44. This court cannot read words into a very unambiguous agreement. Doing anything to the contrary will be akin to rewriting a legally binding agreement between the parties herein. That is not within the province of this court, as held in National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] KLR 112, where the Court of

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Appeal held that parties are bound by the terms of their contract unless vitiating factors are proved. No fraud, misrepresentation, or unconscionability was pleaded or proved. 45. Similarly, in Attorney General of Belize et al v Belize Telecom Ltd & Another (2009), 1WLR 1980 at page 1993, citing Lord Person in Trollope Colls Ltd Vs North West Metropolitan Regional Hospital Board (1973) I WLR 601 at 609, the court held as follows: “The Court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves. If the express terms are perfectly clear and free from ambiguity, there is no choice to be made between different meanings. The clear terms must be applied even if the court thinks some other terms could have been more suitable.” 46. In the absence of an express term in the clear and unambiguous agreement on record that the consideration was to be used to settle the MyCredit Limited loan, this court is inclined to find that the Plaintiff did not prove on a balance of probabilities that the balance of the consideration due from the Defendant was to be used to settle the MyCredit Limited loan which had been secured by the suit motor vehicle. 47. This court’s understanding of the agreement is that the completion date was to be August 2024. That was when the Plaintiff was to pass the title to the suit motor vehicle to the Defendant. 48. Section 14 of the Sale of Goods Act (“the Act”) provides as follows on the seller’s duty to pass title to the goods:14. In a contract of sale unless the circumstances of the contract are such as to show a different intention, there is(a) An implied condition on the part of the seller that in the case of a sale he has right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass. 49. The seller’s duty to pass good title to the goods set out above is well explained in the book Benjamin's Sale of Goods Fifth Edition, London sweet Maxewell, at page 168 where the learned authors observe as follows:-

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"...there is an implied term on the part of the seller that in the case of a sale he has a right to sell the goods, and in the case of an agreement to sell he will have such a right at the time when the property is to pass. The liability thus imposed is a strict liability, and does not depend upon the fault or knowledge of the seller...............A seller will clearly have no ''rights to sell the goods'' where he has no title to the goods and can pass none to the buyer." 50. The common thread running through the authorities above is that the seller must have a good title to the goods he seeks to sell on the completion date. This is to say that as of August 2024, the Plaintiff was to pass the suit motor vehicle’s good title to the Defendant. 51. The evidence on record shows that the suit motor vehicle was repossessed by MyCredit Limited sometime in February 2025, while in the Defendant’s possession. This means that the suit motor vehicle was not free from encumbrances on the completion date. The encumbrance in favour of MyCredit Limited with respect to the suit motor vehicle on the completion date proves that the Plaintiff did not have the right to sell the suit property on the completion date. Therefore, the Plaintiff could not pass title to the suit motor vehicle to the Defendant on the completion date. 52. Given that the Plaintiff did not have the right to sell the suit motor vehicle on the completion date, it follows that the Plaintiff fundamentally breached the agreement. 53. The upshot of the above is that the parties herein breached the agreement. What are the remedies available to either party 54. This court has already made a finding that the parties herein breached the agreement. In the words of Magare, J in GBM (A Minor Suing Through the Next Friend and Mother LNG) v HNW (Civil Appeal E017 of 2024) [2025] KEHC 14085 (KLR): “17. This case reminds me of the maxim nullus commodum capere potest de injuria sua propria. This basically means that no one can take advantage of their own wrong or benefit from their wrongdoing. Through this, a person is prevented from seeking a remedy on the basis of their own actions, otherwise reflected in another maxim, ex turpi causa non oritur actio…”

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55. Guided by the authority above, the finding on the parties' breach of the agreement herein renders the suit and the counterclaim unsustainable in law. 56. One may be tempted to argue that the Plaintiff has already benefited from the frustrated agreement by receiving the part consideration of Kshs. 777,100/= from the Defendant. 57. This court’s observation in paragraph 56 above must have informed the Defendant’s counsel’s submission that the Defendant was entitled to recover the sum of Kshs. 777,100/= from the Plaintiff based on the equitable doctrine of unjust enrichment. 58. Be that as it may, it should be borne in mind that the Defendant remained in possession and use of the suit motor vehicle from 04 th May 2024 until sometime in February 2025 when the suit motor vehicle was recovered. It goes without saying that the Defendant derived a benefit from the suit motor vehicle during that period. Therefore, the Defendant cannot seek to recover the total Kshs. 777,100/= from the Plaintiff. He can only possibly recover part of the Kshs. 777,100/= after availing credible evidence on the benefit he derived from the suit motor vehicle during the period the said motor vehicle was in his possession. 59. The Defendant did not place before this court any evidence to show that the benefit he derived from the suit motor vehicle during the period the said motor vehicle was in his possession was less than the Kshs. 777,100/= he paid to the Defendant. 60. In the absence of the evidence alluded to above, this court cannot order a refund of part of the consideration to the Defendant based on surmises and speculation. That is an unruly horse which this court declines to ride. 61. It is against this backdrop that this court finds and holds that the Kshs. 777,100/= paid to the Plaintiff by the Defendant was enough compensation to the Plaintiff for the Defendant’s use of the suit motor vehicle during the period the said motor vehicle was under the control and use of the Defendant, thus the same is not recoverable by the Defendant. DETERMINATION 62. The upshot of the foregoing is that this suit and the counterclaim are dismissed. 63. Each party to bear their respective costs.

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64. Judgment accordingly. Read, signed, and delivered in open court at Bungoma, this 30th day of April 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Wakasa h/b for Murunga for the Defendant C/A: Mr. Rioba

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