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Obo v Abubakar (Commercial Case E016 of 2025) [2025] SCC 32 (KLR)

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Obo v Abubakar (Commercial Case E016 of 2025) [2025] SCC 32 (KLR) (15 October 2025) (Judgment) Neutral citation: [2025] SCC 32 (KLR) REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT LAMU COMMERCIAL CASE E016 OF 2025 FM MULAMA, RM OCTOBER 15, 2025 BETWEEN SWALEH BWANA OBO ........................................................................... CLAIMANT AND ALWY SHARIFF ABUBAKAR ........................................................... RESPONDENT JUDGMENT Introduction 1. The claimant avers he entered into a brokerage agreement with one Abdallah Sharifi Abubakar who as admitted by the claimant and the respondent the said Abdallah is the brother to the respondent and who is not a party to the claim. 2. It was stated by the claimant that he agreed with Abdallah Sharifi Abubakar that he would look for clients to purchase his parcels of land at an agreed amount of Kshs.100,000/= but any money over and above Kshs.100,000/= would be money the claimant would be entitled to. In essence, for every plot the claimant negotiated and sold at any given price, the said Abdallah Sharifi Abubakar would be entitled to Kshs.100,000/= only and the excess thereof would be for the claimant. 3. The respondent opposed the claim and stated that the agreement was between the claimant and his brother and that he only ofiered his shop as an ofice for the land sale agreements and received the purchase prices on behalf of his brother Abdallah Sharifi Abubakar who more often than not used to travel out of Lamu. 4. As to the agreement he signed between himself and the claimant, it was his evidence that he was under the duress of police when he signed the same and further to prove that point is that the fact that it was witnessed by police speaks to the said duress. 5. Parties have filed their respective submissions to which I have read and considered in this judgement. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/32/eng@2025-10-15 1

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6. The claimant in his submissions has raised 4 issues for determination. The validity and enforceability of the contract between the parties, whether reliefs sought can be granted and costs. On the issue of validity claimant avers that there is a valid and enforceable contract because the agreements were signed by the respondent and as such there is implied agency arising from their conduct and reliance has been place on the case of Yonge vs Toynbee(1910) 1KB 215. 7. As to breach the claimant avers that the respondent promised to pay the balance in monthly instalments of Kshs.50,000/= which he failed and as such he is in breach of the agreement. 8. On the issue as to whether the claimant is entitled to the reliefs sought and costs, he submitted that having proved that there was a valid contract and there is breach, then he is entitled to the reliefs sought and costs of the suit. 9. The respondent on the other hand has raised 2 issues for determination to wit whether the claimant can enforce contractual obligations against the respondent despite there being no privity of contract and whether the agreement entered into on 4/10/2020 was valid and binding. 10. On the first issue, the respondent submits that a contract can only be enforced by and against parties to it-privity of contract. To buttress this position reliance was placed on the case of Bharminder Singh Osahan vs Helicopters international ltd (2021) eKLR and Section 3(1) of the Law of contract Act. 11. He further added that there is no subsisting contractual relationship between him and the claimant and as such any rights and liabilities arising from the brokerage agreement of 27/6/2020 can only be enforce as against his brother. 12. In response to the submission by the claimant on the issue of agency it was his submission that in law the actions of an agent are binding upon the principal and liability attaches to the principal for any actions committed by the agent. 13. On whether the agreement of 4/10/2020 is valid, it was his submission that the same is not valid as it was procured through duress for among other reasons the same was signed by him while in custody, it was written by a third party and that it was witnessed by police oficers. He urged the court to dismiss the claim on those grounds. Issue for Determination. a. Whether the claim is meritorious b. What orders can issue in the circumstances c. Who bears costs of the claim. Analysis And Determination. a. Whether the Claim is Meritorious. 14. It is not in doubt that there are 2 sets of agreement that form the substratum of the claim. The one between the claimant and Abdallah and the other between the claimant and the respondent. The foundation of which is the agreement between the claimant and Abdallah. 15. The claimant pleads breach of the agreement between him and Abdallah and which brought about the agreement between him and the respondent on account of none payment of Kshs.200,000/= which he is claiming in this claim. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/32/eng@2025-10-15 2

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16. It is also admitted that the agreement as between the claimant and the respondent was to give efiect to the agreement between him and the Abdallah as it was meant to enforce the agreement on commission in the agreement between him and Abdallah. 17. The respondent pleads privity of contract in the circumstance and further states that he is not bound by the agreement between his brother and the claimant. Given the set of circumstances obtaining that is true. 18. The claimant on his part claims that there was an agency relationship between the said Abdallah and the respondent and as such liability attaches. I agree with the respondent when he submits that in instances where that relationship is proved to be in existence liability only attaches to the principal and not the agent. I agree with him and that is the position of the law on matters agency. Liability never attaches to the agent. 19. Having perused the agreement dated 4/10/2020 and having listened to both parties as to how the same was procured, it is admitted that the same was drafted and signed when the respondent was arrested and that it is witnessed by police oficers. To me if that is not duress then I do not know what duress means. The fact that it was signed and prepared after his arrest and witnessed by police oficers, it is evident to me that the terms therein were “agreed” upon under duress as the respondent was only thinking of a way of securing his release and as such there was no free will and it is admitted further that he was released upon him executing the said agreement I do make a finding that the same was obtained through duress. 20. It is also clear from the record that the agreement entered into on 4/10/2020 was between the claimant and the respondent. In my view and from the admissions made, the respondent had no capacity to enter into such an agreement. The position would still be the same had I found that there was no duress. b. What Orders can Issue in the Circumstances. 21. Flowing from the analysis above, it is clear to my mind that the agreement entered into on 4/10/2020 was not only entered into under duress on the part of the respondent but also that he did not have the requisite capacity to enter into the said agreement. 22. The consequence of which the said contract dated 4/10/2020 stands vitiated on those 2 reasons and as such not enforceable. 23. It follows therefore that no orders can issue on the strength of the said agreement which forms part of the substratum of the claim by the claimant. c. Who Bears Costs of the Claim? 24. It is well recognized that the principle costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case. The respondent having successfully defended the matter he is awarded costs of the claim limited to disbursements and attendance only. Conclusion and Disposition. 25. The upshot of the foregoing I make the following final orders; a. The claim contained in the statement of claim dated 19th August 2025 is dismissed with costs to the respondent. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/32/eng@2025-10-15 3

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b. 26. Let the file be closed forthwith. Orders accordingly. DATED, SIGNED AND DELIVERED AT LAMU SMALL CLAIMS COURT THIS….15TH …..DAY OF …OCTOBER…2025. F.M. MULAMA ADJUDICATOR/RM In the presence of: Court Assistant:- Fathiya Loo. Mr. Abdulmunim for the Claimant. N/A for respondent. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/32/eng@2025-10-15 4

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