Ruto v Cherono [2024] KEHC 10947 (KLR) | Agency Agreements | Esheria

Ruto v Cherono [2024] KEHC 10947 (KLR)

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Ruto v Cherono (Civil Appeal E200 of 2023) [2024] KEHC 10947 (KLR) (20 September 2024) (Judgment)

Neutral citation: [2024] KEHC 10947 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E200 of 2023

RN Nyakundi, J

September 20, 2024

Between

Susan Ruto

Appellant

and

Kibiwott T Cherono

Respondent

Judgment

1. The Appellant filed an appeal before this court through a memorandum of appeal dated 12th October, 2023. The appeal is against the decision of Hon. T.W. Mbugua delivered on 15th September, 2023, in which the learned Magistrate entered judgment in favour of the Respondent in the sum of Kshs. 600,000/=.

2. The genesis of the litigation leading to the appeal emanates from an agency agreement entered into between the Appellant and the Respondent whereby the Respondent/Appellant was supposed to pay Kshs. 800,000 from the sale of land to which the Respondent/Appellant deposited a sum of Kshs. 200,000/= leaving a balance of Kshs. 600,000/=. The Respondent filed a claim at the small claims court seeking judgment of the said amount and in response to that claim, the Appellant denied the entire claim and more particularly that the Respondent entered into a commission agreement.

3. The trial court considered the claim and found that there was a valid agreement between the parties for payment of commission on the sale of land and as a result, the Respondent’s claim of a balance of Kshs. 600,000/= was valid.

4. Aggrieved by the said decision, the appellant lodged the present appeal faulting the trial court’s decision on the following grounds:a.That the learned magistrate erred in law and in fact in failing to find that the Small Claims court lacked the jurisdiction to hear and determine the claim as it fell under a Land’s dispute which is beyond the jurisdiction preferred to the court by the Small Claims Act.b.That the learned magistrate erred in law and in fact in completely ignoring the testimony of DW2 who was one Violet Jepchirchir Ruto and failing to appreciate the evidence that she produced in support of her testimony yet the same was duly produced and formed part of the court’s record.c.That the learned magistrate erred in law and in fact in failing to appreciate the evidence of DW2 in so far as the evidence led to the fact that the party, purchaser, who had engaged the Respondent herein had fully been paid and that he was his agent whom he had engaged.d.That the learned magistrate erred in law and in fact in failing to consider evidence that was led, including by the respondent herein, that there was no agency relationship between the parties herein at the time of the signing of the impugned agreement the subject of the proceedings and that the impugned agreement was signed after the transaction had been completed thus arriving at a wrong conclusion that agreement was proper.e.That the learned magistrate erred in law and in fact in failing to appreciate the evidence led as to the specific circumstances surrounding the signing of the impugned agreement dated 5th August, 2021 that vitiated the said agreement thus arriving at a wrong conclusion that the agreement was enforceable.f.That the learned magistrate erred in law and in fact in finding that the sum of Kshs. 600,000/= was outstanding despite evidence led to the contrary that there was no enforceable contract between the parties herein, thus arriving at an erroneous decision that the Respondent herein had proved his case to the required standard.g.That the learned magistrate erred in law and in fact in awarding the costs and interests of the suit to the Respondent completely ignoring the material and totality of the court’s record.h.That the learned magistrate erred in law and in fact in completely ignoring the submissions and list of authorities filed on behalf of the Appellant and the list of authorities filed in support thereof.

5. The Appellant prayed for orders as follows:a.That the judgment delivered by Hon. T. W. Mbugua (RM) on the 15th September, 2023 be set aside in its entirety.b.That the judgment be substituted with an order dismissing the claim brought vide the statement of claim dated 26th April, 2023 with costs to the Appellant.c.That the costs of this appeal and the suit at the Small Claims court be borne by the Respondent.

Appellant’s submissions 6. The Appeal was canvassed by way of written submissions and each party filed their respective submissions. The appellant through her submissions dated 4th January, 2024. The Appellant identified issues for determination as hereunder:a.Whether the Small Claims Court had the jurisdiction to hear and determine the suit?b.Whether the Small Claims Court erred in law in completely ignoring the evidence of the Appellant’s witness.c.Whether the Small Claims Court erred in law in finding that there was a binding agreement between the parties.d.Who should bear the costs of the appeal and the suit at the small claims court?

7. On the question of jurisdiction, learned counsel Mr. Mwachofi submitted that it is trite that jurisdiction is everything and without it the court ought to down its tools and not handle a matter any further. According to counsel, the issue of jurisdiction is so grave that it can be raised at the appellate stage as is the case in the present cause. On this counsel cited the decision in Christoffersen versus Kavneet Kaur Sehmi t/a The Random Shop (Civil Appeal E036 of 2022) (2022) KEHC 14035 (KLR). It was counsel’s submission that the Small claims court’s jurisdiction is limited to only five (5) areas as provided in the Small Claims Court Act and a claim arising out of land is not one of those areas. He therefore concluded that the court having lacked jurisdiction to hear the suit, the judgment so delivered was ought to be set aside and substituted with an order dismissing the claim with costs.

8. Another issue was that of non-consideration of the Appellant’s witness testimony. On this he cited the case of Wilfred Kikaet Kuyo v Letulal Ole Masikonde & 2 others (2018) eKLR where the court found that the lower court had erred in law in failing to consider witness testimonies. It is on this basis that the appellant urged this court to consider the appellant’s evidence at the trial court in its entirety. Learned counsel took issue with the fact that the learned magistrate did not indicate or mention why the evidence of Violet Jepchirchir Ruto was not considered.

9. On the third issue as to whether the learned magistrate erred in finding that there was a valid commission agreement, it was submitted by the appellant that there was an error. This court was urged to re-look at the evidence tendered and assess whether the learned magistrate erred in her findings. Counsel relied on the case of Mamta Peeush Mahajan (suing on behalf of the estate of the late Peeush Premlal Mahajan) versus Yashwant Kumari Mahajan (sued personally and as Executrix of the estate and beneficiary of the estate of the late Krishan Lal Mahajan) (2017).

10. Flowing from the aforementioned decision, it was submitted for the Appellant that there are two aspects to consider when dealing with the validity of an agreement. The first aspect is the legal principles of contract formation and the second aspect it the existence of vitiating circumstance that make an agreement void and incapable of being enforced.

11. Counsel contended that the principles that come in play in determining whether a contract is valid or not can be summarised as follows; the consideration of reasonable of honest men, the existence of an offer and acceptance, the performance and conduct of the parties, intention to create legal obligations and consideration emanating from two parties. First, an agreement should meet the threshold of meeting reasonable expectations of honest men. To this end, he concluded that the agreement seeking to be enforced does not meet this reasonable expectation.

12. In submitting that the agreement has not met the required standards, learned counsel took note of the following circumstances: it is not disputed that the respondent approached the appellant on behalf of a third party. It is not disputed that the appellant did not formally employ the Respondent to be her agent but merely gave him information on her parcel and the amount she is willing to sell so that he can inform his own clients. It is not disputed that the Appellant was informed by the buyer that the Respondent was their agent, they have paid him and that she should not pay him. The Respondent confirmed that he was the buyer’s agent and that he was paid. It is not disputed that the agreement was “signed” after the sale of the parcel was underway and not before. It is not disputed that the agreement was signed at a restaurant yet the parties first met in separate occasions at the Appellant’s resident. It is not disputed that the 10% rate is manifestly high and unfair.

13. Learned counsel further argued that the elements of a valid contract have not been met. He highlighted the elements of acceptance, performance, consideration, offer and the intention to enter into a legal relation. Counsel was of the view that all these elements have not been satisfied and urged this court to find so.

14. In the end, it was submitted for the Appellant that the appeal is with merit and ought to be allowed and consequently, the judgment of the Small Claims court be set aside in its entirety and be replaced with an order dismissing the small claims suit with costs to the Appellant.

Respondent’s submissions 15. The Respondent gave a background of the appeal and affirmed the fact that there existed a valid agreement. Learned Counsel Mr. Kiptoo isolated two issues for determination:a.Whether the Small Claims Court has jurisdictionb.Whether there was a commission agreement

16. Learned counsel made reference to the provisions of Section 12 of the Small Claims Court Act and was of the position that the lower court was acting within the scope of its jurisdiction as the matter was strictly for payment of money as per the commission agreement.

17. On the second issue, it was submitted for the Respondent that it is evident that there existed a principal-agent relationship. Further that there was no evidence adduced to prove that the said contract was voidable, illegal or could be voided for having been a forgery or fraudulent and therefore, for all purposes and intent, the contract was valid and binding between the applicant and the Respondent herein.

18. In support of his arguments, counsel cited the decisions in Fowler v Bratt (1950) KB 96, Dennis Reed Ltd versus Goody (1950) 2 QB 277, Kengen Staff Retirement Benefits Scheme Limited versus Villa Care Limited (2020) eKLR and Dennis Kimakia t/a Wasonga KImaika & Co. Advocates versus Louis Mugambi Njuki (2019) eKLR.

Determination. 19. As what is before me is a first appeal, I have to be alive to the fact that the duty of this court is to re-evaluate the matter to ensure that the lower court arrived at the correct decision. In the locus classicus case of Selle v. Associated Boat Co. (1968) EA 123, Sir Clement De Lestang V – P of the E.A. Court of Appeal, put the principle aptly as follows –“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v. Ali Mohamed Sholan [1955], 22 E.A.C.A. 270).”

20. The issues I find for determination are:a.Whether the Small Claims court has jurisdiction to determine the instant matter.b.Whether the commission agreement is valid and whether the defence of duress is tenable.

21. I start by quoting the very relevant words of Steyn LJ in G. Percy Trentham Ltd v Archital Luxfer Ltd [1993] 1 Lloyds Rep 25 Lord Steyn said:“…It is important to consider briefly the approach to be adopted to the issue of contract formation ... It seems to me that four matters are of importance. The first is that… law generally adopts an objective theory of contract formation. That means that in practice our law generally ignores the subjective expectations and the unexpressed reservations of the parties. Instead the governing criterion is the reasonable expectations of honest men. … that means that the yardstick is the reasonable expectations of sensible businessmen. Secondly it is true that the coincidence of offer and acceptance will in the vast majority of cases represent the mechanism of contract formation. It is so in the case of a contract alleged to have been made by an exchange of correspondence. But it is not necessarily so in the case of a contract alleged to have come into existence during and as a result of performance. See Brogden –v- Metropolitan Railway [1877] 2 AC 666; New Zealand Shipping Co Ltd v A M Satterthwaite & Co. Ltd. [1974] 1 Lloyd’s Rep. 534 at p.539 col.1 [1975] AC 154 at p. 167 D-E; Gibson v. Manchester City Council [1979] 1 WLR 294. The third matter is the impact of the fact that the transaction is executed rather than executory. It is a consideration of the first importance on a number of levels. See British Bank for Foreign Trade Ltd. v. Novinex [1949] 1 KB 628 at p. 630. The fact that the transaction was performed on both sides will often make it unrealistic to argue that there was no intention to enter into legal relations. It will often make it difficult to submit that the contract is void for vagueness or uncertainty. Specifically, the fact that the transaction is executed makes it easier to imply a term resolving any uncertainty, or, alternatively, it may make it possible to treat a matter not finalized in negotiations as inessential. In this case fully executed transactions are under consideration. Clearly, similar considerations may sometimes be relevant in partly executed transactions. Fourthly, if a contract only comes into existence during and as a result of performance of the transaction it will frequently be possible to hold that the contract impliedly and retrospectively covers pre-contractual performance. See Trollope & Colls Ltd. v. Atomic Power Constructions Ltd. [1963] 1 WLR 333. ”

22. Additionally, in RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Production) [2010] UKSC14, [45]:“The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.”

23. The above-cited authorities are only persuasive and they outline the correct and sound position in law regarding contracts. The duty of this court is to delve into the alleged commission agreement and examine whether through what the parties said or did, if there indeed existed an objective intention as expressed to each other to have a mutually binding contract.

24. At the trial court, the Respondent/Claimant testified as the only witness in support of his case. He testified as CW1 and told the court that he is a land agent. He testified that he came to know of the Appellant when she came looking for land. That the Appellant was selling her land at 7 Million. She told him that she would pay a commission if he topped on anything above Kshs. 7,000,000/=. It was his testimony that he got a buyer for Kshs. 8,000,000/= and when she was paid a deposit of Kshs. 2,500,000/= she paid him Kshs. 200,000/=. One year later, the claimant testified that he reached out for payment of his balance, to which the appellant stated that she was a stranger and was not in a position to pay.

25. The witness further stated that when she paid him Kshs. 200,000/= she acknowledged in her notebook. The same was produced as Cexh. 1. He concluded by testifying that he has never contacted the appellant for any other reasons apart from the agreement and he has never threatened into entering into any agreement.

26. On cross examination, he testified that he had been requested to get land for the Appellant. He stated that this commission was not included in the sale agreement and that the agent/agency agreement need not to be in the Sale agreement. That the 1st deposit was paid before 5th August. That the deposit was being paid by Tarita Limited and that is how he knew the deposit had been paid. He further told the court that there was no witness but they both executed the agreement with Susan.

27. The Respondent testified that he took a photo when the money was being given for purposes of confirming that he had received the money. It was his testimony that the Appellant undertook to give him Kshs. 800,000/= instead of Kshs. 1,000,000/= and he was agreeable.

28. The Respondent/Claimant closed his case, inviting the Appellant to execute her case. The Appellant called two witnesses. The first to take the stand was the Appellant, who testified as DW1. She told the court that the Respondent/Claimant came to her at around 2021 and inquired whether she was selling land. She told him that if she would sell the land, it could only go at Kshs. 8,000,000/=. She told the court that she later realized that the buyer was known to her daughter and they stopped talking to the broker.

29. She testified that her daughter later took over the transaction with the buyer but the agent used to threaten her because he wanted a commission and she told him that she could not give a commission of 10%. She instead undertook to give him Kshs. 200,000/=. The respondent told her that they must sign an agreement which he wrote himself and she signed because of his stress. After that she gave him Kshs. 200,000/= but still he kept calling her. That she got a notebook when she was giving him the money and he wrote the agreement and she signed it and when signing it, he forced her to pay Kshs. 200,000/=. She testified that she had just lost her mother and she was not quite sure what she had signed.

30. On cross examination, she stated that it is Mr. Cherono who connected him with the buyer. She testified that Mr Cherono continued to threaten her on phone but she did not report the same to the police. She told the court that she was threatened in the presence of her sister. She stated that she signed the sale agreement under duress and so was the agency agreement.

31. DW2 was Violet Jepchirchir Ruto who told the court that she is an Advocate of the High Court. She adopted her witness statement as her evidence in chief and stated that she does not know the Claimant/Respondent personally.

32. On cross examination, she testified that Mr. Cherono threatened her mother. That her mother did not tell her when signing the agreement and if the alleged agreement is a valid one, then her mother owes Mr. Cherono 3% of 8,000,000/=. She also testified that she was not aware that the parties entered into an agreement.

33. I have studiously gone through the record and I have no doubt that factors which vitiate contracts or defeat contractual liability constitute proper defences to any claim for specific performance. They however ought to be pleaded with specific particularity. Where they are not even generally pleaded a party should not be allowed to lead evidence on the same or even raise such factors after closure of trial. The Appellant Responding to the claim averred that she was coerced, forced and threatened to sign the impugned agreement that the claimant seeks to rely on.

34. I am conscious of the fact that an agreement need not be in any special form or in writing unless statute expressly provides for it: see for example the Law of Contract Act (Cap 23), the Hire Purchase Act (Cap 507), and the Bills of Exchange Act (Cap 27).

35. Where therefore parties reach an agreement on all the terms of contract they regard (or the law requires) as essential, a contract is deemed to have been formed. What is essential is the legal minimum to create a contract. These are the intention to create legal obligations and consideration. Other terms are secondary as far as formation of a contract is concerned. The reason is that the law does not require commercially sound terms or sensible terms. The parties may agree to any terms and the court will, once it is shown that the parties agreed and valid consideration exists, always hold the parties to their bargain. The court will not seek re-write the contract for the parties: see National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd & Another [2002] EA 503.

36. In the present case, it is not in dispute that both parties executed the agreement entered into on 5th August, 2021. The question as to its form is not disputed as well. Even so, there is no requirement in law that such agreements should be in a prescribed form. The probable defence that culls itself from the pleadings is that of coercion, which the Appellant solely relies on. She averred that she signed the agreement under pressure and she was stressed at the time.

37. In the case of Mamta Peeush Mahajan [Suing on behalf of the estate of the late Peeush Premlal Mahajan] v Yashwant Kumari Mahajan [Sued personally and as Executrix of the estate and beneficiary of the estate of the late Krishan Lal Mahajan] [2017] KEHC 2062 (KLR) the court stated as follows:“It is trite that once the defendant’s signature is proved or admitted the plaintiff has discharged his or her burden and the burden is then on the Defendant to prove fraud, misrepresentation, illegality, duress or whatever defence he or she might have. The burden likewise shifts once it is shown that an agreement, oral or otherwise, exists.”

38. The Appellant argued that she was coerced into signing the agreement. By that she means compulsion under which a person acts through fear of personal suffering, as from injury to the body from confinement, actual or threatened: see Halsbury’s Law of England 3rd Ed Vol 8 para 146 Duress essentially occurs where a party to contract has coerced the other and exercised domination as to undermine the independence of a person in decision-making. In instances it is clearly established, then the contract in question becomes voidable.

39. Was the Appellant under duress or coercion to negotiate? Was there any evidence to suggest that these threats were credible and imminent?In Jayantilala Lalji Gandhi & another v Mavji Ruda [1986] eKLR the court held: -‘Duress at common law, or what is sometimes called legal duress, means actual violence or threats to violence to the person i.e., threats calculated to produce fear of loss of life or bodily harm. ……. The rule here is that the threat must be illegal in the sense that it must be threat to commit a crime or a tort.”

40. The Court of Appeal in John Mburu Vs Consolidated Bank of Kenya (2018) eKLR, stated: -“But there is also economic duress which was discussed by this court in Kenya Commercial Bank Ltd & another Vs Samuel Kamau Macharia & 2 Others (2008) eKLR. The court cited with approval the decision of the privy council in PAO and Others Vs Lau Yiu & another 1979 3 ALL ER 65 stating thus: -‘Duress whatever form it takes is coercion of the will so as to vitlate consent. Their Lordships agree that in a contractual situation commercial pressure is not enough. There must be present some facts on which called in law be regarded as coercion of his will, so as to vitalize his consent……. In destemming whether there was coercion of will such that there was no true consent, it is material to inquire whether the person alleged to have been coerced did not did not protest whether at the time he was allegedly coerced into making the contract he did or he did not have an intensive course open to him. Such as an adequate legal remedy, whether he was independently advised and whether after entering the contract he took steps to avoid it.”

41. It is now settled that the Courts cannot re-write contracts for parties, neither can they imply terms that were not part of the contract. In the case of Rufale Vs Umon Manufacturing Co. (Ramsboltom) (1918) L.R 1KB 592, Scrutton L.J. held as follows:“The first thing is to see what the parties have expressed in the contract and then an implied term is not to be added because the Court thinks it would have been reasonable to have inserted it in the contract.”

42. Further, In the case of Attorney General of Belize et al Vs Belize Telecom Ltd & Anoter (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, 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 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.”

43. On the same breadth, the significance of of interpreting contracts strictly was further reiterated in the case of Curtis Vs Chemical Cleaning & Dyeing Co. Ltd (1951), ALL ER 631 in which Lord Denning held as follows:“If a party affected signs a written document, knowing it to be a contract which governs the relations between him and the other party, his signature is irrefragable evidence of his assent to the whole contract, including exception clauses, unless the signature is shown to be obtained by fraud or misrepresentation.”

44. As I have highlighted, it is on record that the parties had a commission agreement and the same was executed by both parties. A reading of the impugned commission agreement reveals that the Appellant had agreed to pay the Respondent the sum of Kshs. 800,000/=. He was only paid Kshs. 200,000/= leaving a balance of Kshs. 600,000/=.

45. The question to be authoritatively asked in cases of this nature is whether the appellant by her failure to perform her part of the contract is an action aimed at repudiating the entire contract. In every case, it is trite law that the question of repudiation of a contract must depend on the character of the contract, the weight to be given by the court on the wrongful acts or assertions by the defaulting party. It is also settled law that courts are not in the business of re-writing contracts freely entered and guaranteed within the terms, conditions and warrantees with which they have committed themselves to perform. The scrutiny and examination of the evidence in this appeal seems to be squarely fall within the principles illuminated in the comparative jurisprudence founded in Halsbury’s Laws of England 4th Edition para 548 vol. 9:“Repudiation may be an express renunciation of contractual obligations. However, it is more commonly implied from the failure to render due performance or, in cases of anticipatory repudiation, by the party in default putting himself in such a position that he will apparently be unable to perform when the time comes. A party seeking to rely on repudiation implied from conduct must be able to show that the party in default has so conducted himself as to lead a reasonable man to believe that he would be unable to perform or will be unable to perform at the stipulated time.”“The question whether or not a party has elected to rescind is one fact. An election to rescind must involve an unequivocal assertion by the innocent party that he regards himself as no longer bound by the contract as a result of the breach.Where the defaulting party is a Plaintiff in an action and the innocent party is merely relying upon the breach as justification for his non-performance, the innocent party need show no positive acceptance of the breach as terminating the contract though he will not be able to rely upon that breach as discharging him if his inaction is such as otherwise to constitute affirmation.”

46. Based on this analysis of fact and law I must conclude that the appellant’s claim to repudiate the contract on grounds of duress is an afterthought believed to work to her advantage so as not to honor her obligations on matters pertaining the land transactions mutually agreed with the respondent. The appellant can only claim herself for not having clearly appreciated the consequences of the set terms of the contract. To arrive at this figure, the reading in and reading out of the documentary evidence speaks for itself and there is no parole evidence required to vary, review or set aside the intention of the parties. Therefore, the monies found to be due and owing as a result of the breach of contract by the Appellant ought to be paid as adjudicated upon by the Small Claims Court.

47. The Law of contract provides that fore there to be a valid contract there needs to be an intention to create legal relations, an offer, and by the acceptance of that offer an agreement and consideration. Contracts may be formed by the parties signing a written document which embodies all its terms. However, a contract can also be entirely oral or it may be partly oral and partly in writing.

48. In the instant appeal, what is necessary for this court is to examine the evidence as to the terms which the parties had asserted to form part of the contract commonly referred to as principal-agency contracts. This instrument which is being denied by the appellant, my interaction with it did bring out the distinct component parts that constitute the legal agreement between the Appellant and the Respondent. I think this is what learned author Chitty on contracts had in mind in his book 23rd Edition Chapter 2 para 43 when he defined an offer as a definite undertaking made with the intention which may often objectively ascertained, that it shall become binding on the person making it as soon as it is accepted by the person to whom it is addressed.

49. Thus it seems to me, a letter of intent herein the agreement dated 5th August, 2021 was generated in appropriate circumstances where the contract work scope and the fee were agreed as between the appellant and the Respondent. It is important to stress that the Respondent fulfilled his part of the bargain as at the time they spoke and reduced it into writing together with the services required to be performed. As a matter of interest in obiter this is one case in which the appellant in an afterthought simply failed to fully settle the agency fee as agreed upon for certain terms of economic value on the strength that the agreed fees may have been exorbitant. In respect of this, the main contract has to be finalized within the scope of works and performance reached between the two parties.

50. In the case of Astley v Reynolds [1731] 2 Stra 915, 93 ER 939, the Court held that the compulsion had to be such that the party was deprived of “his freedom of exercising his will”.

51. The other issue raised by the Appellant was that of the Small Claims’ Act’s jurisdiction to handle this matter.

52. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989) EA, the Court held that:“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

53. It follows that the issue of jurisdiction must be raised at the onset of the suit and the court may, on its own motion, examine whether it has jurisdiction to hear and determine the suit and should it find that it has no jurisdiction, it must down its tools and say no more.

54. The jurisdiction of the Small Claims Court is set out in Section 12 of the Small Claims Court Act. The same provides as follows:“Nature of claims and pecuniary jurisdiction subject to this Act, the rules and any other law, the court has jurisdiction to determine any civil claim relating to—(a)A contract for sale and supply of goods or services;(b)A contract relating to money held and received;(c)Liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property;(d)Compensation for personal injuries; and(e)Set-off and counterclaim under any contract.(2)Without prejudice to the generality of subsection (1), the court may exercise any other civil jurisdiction as may be conferred under any other written law.(3)The pecuniary jurisdiction of the court shall be limited to one million shillings.(4)Without prejudice to subsection (3), the Chief Justice may determine by notice in the Gazette such other pecuniary jurisdiction of the court as the Chief Justice thinks fit.”

55. A reading of the highlighted provisions creates no doubt in my mind that the present contract squarely falls within the purview of the Small Claims Court. The issue in question as discerned does not relate to the piece of land that was being sold. It rather relates to the agency relationship between the parties; the contract made on 5th August, 2021 as to the payments due to the Respondent. I therefore find no compelling argument to set aside the judgment delivered by the Small Claims Court.

56. The sum total of the evidence adduced by the Appellant points out to the fact that the defence of duress/coercion by the Appellant cannot succeed. As it relates to the issue of payment of the agency fee to the Respondent, there is no escape route for the Appellant. I find that the position of the Appellant on this two legal issues as grounded in the Memorandum of Appeal being without merit. The upshot of it the appeal on the terms of the contract and jurisdiction of the Small Claims Court to entertain the cause of action be and is hereby dismissed with costs to the Respondent.

DATED SIGNED AND DELIVERED AT ELDORET, THIS 20TH DAY OF SEPTEMBER 2024. In the Presence of:Mr. Mwachoge for the ApplicantKiptoo for the Respondent………………………………………R. NYAKUNDIJUDGE