Rutto v Gumo (Commercial Case E087 of 2024) [2024] SCC 16 (KLR)

car hire income of Kshs. 1,200,000/=. He thus argued that he did not owe the Claimant any money. 3. By a consent dated 02nd September 2024, the parties herein agreed to proceed with this matter by way of section 30 of the Small Claims Court Act. Issues for Determination 4. The Parties' pleadings, documents, and the submissions filed have been duly considered by this court. 5. The issues for determination are: a) Whether the Respondent owes the Claimant Kshs. 800,000/= b) Whether the Claimant owes the Respondent Kshs. 885,000/= Whether the Respondent owes the Claimant Kshs. 800,000/= 6. The Claimant placed before this court a Land Lease Agreement dated 21st August 2020 showing that he paid Kshs. 1,200,000/= being the consideration for the lease of land therein. That transaction failed hence the Respondent began refunding the sum of Kshs. 1,200,000/= to the Claimant as evidenced by the Memorandum of Understanding dated 18th August 2023 executed by the parties herein. 7. In the said Memorandum of Understanding, the Respondent acknowledged owing the Claimant Kshs. 1,200,000/=. He proceeded to pay Kshs. 400,000/= to the Claimant as part payment of the said debt of Kshs. 1,200,000/=. 8. The Respondent did not dispute entering into or executing the land lease agreement and the Memorandum of Understanding referred to above. It is a longstanding principle of law that parties to a contract are bound by the terms and conditions thereof and that it is not the business of the Courts to rewrite such contracts. Kitale SCC CC. No. E087 of 2024 Page 2 of 6 Judgment

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9. In National Bank of Kenya Ltd vs. Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR the Court of Appeal at page 507 stated as follows: A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. 10. The legal position above was reiterated in Pius Kimaiyo Langat vs. Co-operative Bank of Kenya Ltd (2017) eKLR where the Court of Appeal stated that: We are alive to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties, They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved. 11. Guided by the authorities above, it follows that the Respondent must be bound by the terms of the two agreements that he executed. 12. It is against this backdrop that this court finds that the Claimant proved on a balance of probabilities that the Respondent owes him Kshs. 800,000/=. Whether the Claimant owes the Respondent Kshs. 885,000/= 13. The Respondent counterclaimed that at the time of execution of the Memorandum of Understanding dated 18 th August 2023, the Claimant had used the Respondent’s motor vehicle registration number KCF 518 K for over one year thus denying the Respondent alleged car hire income of Kshs. 1,200,000/=. 14. It was submitted by the Claimant that he only took possession of the Claimant’s motor vehicle registration number KCF 518 K with the Respondent’s consent since the Respondent used the said motor vehicle as a sign of commitment to repay the money he owed the Kitale SCC CC. No. E087 of 2024 Page 3 of 6 Judgment

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Claimant. The Claimant added that the said motor vehicle was released to the Respondent on execution of the Memorandum of Understanding herein. 15. The Claimant’s evidence on how he got into possession of the Respondent’s motor vehicle registration number KCF 518 K was not controverted by the Respondent. This leaves no doubt in the mind of this court that the Respondent released the subject motor vehicle to the Claimant as security for the money the Respondent owed the Claimant. The Respondent cannot at this stage make an about turn to claim loss of use of the subject motor vehicle. 16. In any event, the Respondent’s Counterclaim was based on a claim of loss of income/business. A claim like loss of income/business is a special damage that needs to be pleaded and proved. The Respondent did not provide any evidence to prove on a balance of probabilities that he used to use his motor vehicle in question for motor vehicle hire business earning Kshs. 3,000/= per day. The Respondent failed to prove loss of income under the law. To fortify this position, this court relies on the decision by Justice Ngaah in the case Francis Muchee Nthiga –Vs. David N. Waweru [2014]eKLR where the Learned Judge stated“Talking of the need to plead and prove special damages the Court of Appeal sitting at Nairobi in Civil Appeal No. 180 of 1993 William Kiplangat Maritim & Another Versus Benson Omwenga cited with approval its earlier decision in Charles Sande versus Kenya Cooperative Creameries Ltd Civil Appeal No. 154 of 1992 (unreported) where it said: “….it is now trite law that special damages must not only be pleaded but must also be specifically proved. We do not think Kitale SCC CC. No. E087 of 2024 Page 4 of 6 Judgment

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we need to cite any authority for this simple and hackneyed proposition of law.” (emphasis added). 17. In David Bagine v Martin Bundi (283 of 1996) [1997] eKLR, the Court of Appeal, referred to the judgment by Lord Goddard CJ in Bonhan Carter v Hyde Park Hotel Limited [1948] 64 TLR 177), and observed that: “It is trite law that the Plaintiff must understand that if they bring actions for damages it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.”(Emphasis added) 18. The foregoing shows that the Respondent having just thrown figures at this court’s head without proof of such figures, this court cannot award the Respondent damages plucked from the skies. In the circumstances, the Respondent’s Counterclaim is dismissed with costs. DISPOSITION 19. The upshot is that the following orders commend to this court: a) A declaration is made that the Respondent is indebted to the Claimant to the sum of Kshs. 800,000/=(Kenya Shillings Eight Hundred Thousand) only b) The sum of Kshs. 800,000/=(Kenya Shillings Eight Hundred) only in (a) above shall attract interest at court rate from the date of filing this claim till payment in full c) The Respondent’s Counter Claim is dismissed with costs d) The costs due to the Claimant are assessed at Kshs. 30,000/= (Kenya Shillings Thirty Thousand) only. 20. Judgment accordingly. Kitale SCC CC. No. E087 of 2024 Page 5 of 6 Judgment

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21. Decree and Certificate of Costs to issue forthwith. Signed and dated at Kitale this 15th day of September 2024 T.O. OMONO ADJUDICATOR Read, signed, and delivered in open court at Kitale this 16th day of September 2024 …………………. ADJUDICATOR In the presence of: Kitale SCC CC. No. E087 of 2024 Page 6 of 6 Judgment

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