Omukuti v Ngeny (Commercial Case E033 of 2024) [2024] SCC 18 (KLR)

Be that as it may, the Claimant, even in the absence of evidence to the contrary by the Respondent, is duty-bound to prove their case to the required standard. In Daniel Toroitich Arap Moi –vs- Mwangi Stephen Muriithi & Another [2014] eKLR the Court of Appeal held that: “It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed…” The Claimant led oral evidence that on 05 th May 2023, he entered into a sale agreement with the Respondent for the purchase of two Ayrshire cows at a consideration of Kshs. 49,000/=. The Permit to Move Livestock dated 05 th May 2023 filed by the Claimant shows that the Claimant bought two cows on 05th May 2023. The Claimant added that he took possession of the two cows only for one of the cows to die three days after the Claimant took its possession. The second cow reportedly died ten days after the Claimant had taken its possession from the Respondent. It was the Claimant’s further testimony that he incurred a loss of Kshs. 6,000/= in treating the two sick cows as evidenced by the Herd Health Assessment Report dated 17th May 2023 (Cexh.1). However, the said report shows that only one Aryshire cow by the name Zawadi was treated by the veterinary officer on 14th May 2023 for acute leptospirosis disease. The value of that cow was assessed by the Veterinary Officer at Kshs. 24,000/=. A reading of the said report (Cexh.1) also shows the two cows Kitale SCC CC. No. E033 of 2024 Page 2 of 5 Judgment

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became ill two days after their purchase and that the Aryshire cow by the name Zawadi did not respond to medicine due to the advanced level of the disease the said cow was ailing from. The Veterinary Death Certificate dated 17th May 2023 filed by the Claimant in this matter but not produced shows that the Aryshire cow by the name Zawadi died as a result of severe bacterial disease. The said certificate also shows that the bacterial disease was at an advanced level in the cow’s body system. The foregoing proves that the Claimant unknowingly bought a terminally ill cow from the Respondent. That was a clear breach of an implied term of the contract of sale between the Claimant and the Respondent that the cow bought was in good health. No one buys a terminally ill cow for rearing. It is abundantly clear from the evidence on record that the Claimant only led evidence regarding the death of the Aryshire cow by the name of Zawadi. The Claimant did not lead any other evidence on the existence and the death of the other second Aryshire cow. He sought to prove the death of the second cow by way of oral evidence only. Whereas section 32 (1)(2) of the Small Claims Court Act precludes the application of strict rules of evidence and calls upon this court to rely on credible and trustworthy evidence, this court is of the considered view that the Claimant ought to have led documentary evidence in the manner he did for the Aryshire cow by the name Zawadi to corroborate his oral testimony on the circumstances under which the other second Aryshire cow died if at all it died. This court can not presume that just because one of the cows was proven to have died as a result of a bacterial disease that was at an advanced stage, then the other cow also died under such circumstances. That will be descending into the arena of surmises, imaginations, and speculations which invitation this court declines to honour. Kitale SCC CC. No. E033 of 2024 Page 3 of 5 Judgment

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In the circumstances, this court finds that the Claimant failed to prove to the required standards that the second cow died in the manner he stated in his oral testimony. What are the costs due to the Claimant, if any Section 33 (1) of the Small Claims Court Act grants the court discretion to award costs. Rule 37 of the Small Claims Court Rules provides that in assessing costs recoverable under section 33 (1) of the Act, the Court shall be guided by the Second Schedule to the Rules. Guided by the above sections of the law and considering the fact that this matter proceeded by way of formal proof, the costs due to the Claimant are hereby assessed at Kshs. 10,000/=. DISPOSITION The upshot of the foregoing is that:a) Judgment is entered against the Respondent for the sum of Kshs. 30,000/=(Kenya Shillings Thirty Thousand) only Kshs. 24,000/= being the value of the dead cow and Kshs. 6,000/= being the cost of treating the dead cow b) The sum of Kshs. 30,000/=(Kenya Shillings Thirty Thousand) only in (a) above shall attract interest at court rate from the date of filing this claim till payment in full c) The Claimant shall have the costs of this claim assessed at Kshs. 10,000/=(Kenya Shillings Ten Thousand) only Judgment accordingly. Dated, signed, and delivered in open court this 16th day of May 2024 Kitale SCC CC. No. E033 of 2024 Page 4 of 5 Judgment

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T.O. OMONO ADJUDICATOR Kitale SCC CC. No. E033 of 2024 Page 5 of 5 Judgment

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