1. The Respondent herein filed a suit in Milimani CMCC E5401/2023 against the Appellant by way ofPlaint dated December 2023 seeking recovery of Kshs. 2,966,558.53/= together with interest plus costs arising thereon alleged to be outstanding on commercial transactions in the nature of sale of goods and services by the Respondent to the Appellant.
2. The matter was heard and determined by the judgment of the Honorable Magistrate Isabellah Barasa on 16d1 December 2024 whereby the court awarded the Respondent the full sum of Kshs. 2,966,558.53 as pleaded in the Plaint together with costs and interest.
The Appellant’s case;
3. Aggrieved by the said judgment the Appellant filed the present appeal against the whole judgment on the following grounds:
1) Ground I. THAT the learned Magistrate in dereliction of her judicial duty failed to evaluate the evidence presented by the Respondent and to arrive at a just and fair finding on the specifically proven amount payable and instead simply awarded the sum of Kshs. 2,966,558.53/= as pleaded in the Plaint by the Respondent and thus fell into error both of law and fact.
2) Ground 2. THAT the learned judge erred in fact and law in making a specific finding that there were no duplications of invoices in the Particulars of claim pleaded by the Respondent at paragraph 12 of the Plaint while it is apparent on the face of the Plaint that Invoices Numbers 5071, 5104, 7509, 10447, 10524, 10785, 10808, 12491, and 37963 are duplicated creating an overstatement ofKshs 504,758.00 in the awarded sum.
3) Ground 3. THAT in view of the apparent discrepancies in the apparent particulars of claim as pleaded the learnedjudge erroredin law in failing to evaluate the evidence and make any finding on which evidence had been admitted as prove oftheRespondent's claim and thus arrived at an unjust and unfairjudgment.
4) Ground 4. THAT the learned judge erred in law and in fact in holding that there was no evidence whatsoever to prove of non-delivery Of the goods in respect of invoice numbers
5) 12491 and 10902 contested by the Appellant amounting to Kshs 97,180.00 that had no supporting delivery notes.
6) Ground 5. THAT the Learned Magistrate fell into serious error of law in holding that the onus fell upon the Respondent to prove that there was non-delivery goods and services thus unjustly shifting the burden ofprove and imposing an impossible and irrational burden ofprove upon the Appellant to prove a negative and denied fact.
7) Ground 6. THAT the Learned Magistrate fell into serious error of law and fact in failing to hold the Respondent bound by its pleadings and erred in disregarding the Respondent's own pleadings with regard to the established business process and the required documents including the requirement of delivery notes as the evidence of the completed and payable transactions between the parties.
8) Ground 7. THAT the Learned Magistrate erred and misdirected herself in fact and law by completely disregarding the import of evaluating supporting documents such as delivery notes in a case involving commercial transaction as in this instant case.
9) Ground 8. THAT the Learned Magistrate fell into serious error of law and fact in entering judgement for Kshs. 2,966,558.53/= as pleaded in the Plaint without evaluating the evidence and giving due consideration and credit for the payments made by the Appellant amounting to Kshs. 619,780 and admitted in the Respondent's own Statement ofAccount for the following:
a. Part payment of Kshs. captured in Respondent's Statement in respect in the Invoice No. 11525 for trainingservices conducted by the Respondent.
b. Part payment ofKshs. 210,880.00 /= captured in Respondent's Statement of in respect of Invoices Numbers and 11205.
10) Ground 9. THAT the Learned Magistrate fell into error of law and fact in disregarding the Appellant's defence of limitation.
11) Ground 10. THAT the Learned Magistrate fell into error of law and fact and misdirected herself and disregarded the pleadings in holding that for purposes of the statute of limitation of actions the computation of time each invoice and did not constitute a separate contract while at the same time holding that there was no common business contract between the parties.
12) Ground 11. THAT the Learned Magistrate fell into serious error of law and fact in holding that for purposes of the statute of limitation of actions the computation of time had been opened by acknowledgment of debt by the Appellant.
13) Ground 12. THAT the Learned Magistrate erred in fact and law by disregarding the contractual rate of interest agreed between parties as provided in the respective invoices that expressly provided for a flat rate of 2.5%. substituting the same with interest at court rates.
14) Ground 13. THAT as a consequence of the leaned magistrate's decision and judgment against the Appellant for the sum of Kshs. 2,966,558.53/2 plus interest and costs was unjust, against the weight of evidence and was based on wrong findings on facts and based on wrong application of principles of law and has occasioned miscarriage of justice.
4. The Appellant seeks the following orders:
i) The appeal be allowed.
ii) That the Judgment and Decree of the High Court delivered on 16th December, 2024 be set aside and or substituted by the judgement of this Court.
iii) The Orders made by the High Court be discharged and vacated.
iv) That the Respondent do pay the costs of this Appeal and the costs of the proceedings in the Court below.
5. In arguing whether the trial Court's finding that the Respondent had discharged its burden of proof and was entitled to judgment in the sum of Kshs. 2,966,558.53 was correct it submits that it now a well settled principle of law that the duty of the 1 st aAppellate Court is to reevaluate the evidence which was adduced in the subordinate Court both on points of law and facts and come up with its own findings and conclusions as was held by the High Court in Kingoo & 2 others v Ntenge (Civil Appeal E798 of 2022) [20241 KEHC 7606 (KLR) (20 June 2024) (Judgment).
6. Thus, the duty of the Court is to subject the evidence tendered in the trial Court to re-appraisal, being careful to note that it did not have the opportunity of seeing and hearing the witnesses first hand.
7. With all due respect to the trial court, for the grounds and reasons below stated, the Appellant humbly submits that the learned magistrate erred in finding and holding that the Respondent had discharged its burden of proving that it was entitled to judgment in in the full sum of Kshs. 2,966,558.53 as pleaded for in the Plaint.
8. In advancing Grounds No 2 and 3 it submits that The Respondent's Plaint pleaded particulars of invoices claimed to be outstanding (Paragraph 12 of the Plaint) of which the numerous ones were duplicated in the stated particulars with the effect of enlarging the amount claimed and ultimately awarded in judgment by a sum of Kshs. 2,966,558.53.It submits that this duplication created an overstatement. This is set out at paragraph 12 of the Plaint at page numbers 7-11 of the Appellant's Record of Appeal.
9. It submits that in light of the clear and easily discernable duplication of pleaded invoices aforesaid the Honorable Magistrate's categorical statement and finding that "Paragraph 12 of the Plaint does not contain duplicated invoices" is curious and clearly wrong. It lends credence to the appellant's complaint that, in the entry of judgment for the full pleaded sum, the trial court failed to apply itself with due diligence and fair consideration of the matter to the Appellant's ultimate detriment.
10. Further it submits that by failing to properly evaluate the evidence or take into serious consideration the Appellant's written submissions the lower Court failed to observe that the Respondent's Bundle of documents contained duplications of invoices as set out at page numbers 22-236 of the Appellant's Record of Appeal.
11. In advancing Ground NO. 4 & 5: Non-delivered goods and services it submits that the primary suit herein arose from trade transactions that involved the placement of orders, delivery of goods and invoicing. The onus was upon the Respondent to proof that the goods for which it was claiming payment had indeed been delivered to the Appellant. Under the parties' contract, such proof was to be established by duly authorized delivery note.
12. The Appellant submits that the process and documentation pleaded at Paragraphs 5 to 10 of the Plaint informed each transaction between the parties and constitutes a framework upon which the trial court was enjoined to interrogate the claims in the suit.
13. It submits that the above process and documentation is not unique and is common to commercial transactions of similar nature and the failure to avail any of the document should raise reasonable suspicion on the completion of the transaction. In E.P. Communications Limited v East Africa Courier Services Limited [20191 eKLR, the court in distinguishing an Invoice, LPO and Délivery Note held as follows;
"The purpose of an invoice is that it is issued by a seller to request for payment for purchase. An LPO is sent by a purchaser to the seller to confirm, order and authorize the purchase. A delivery note is proof of delivery ofgoods.
14. It was therefore incumbent upon the Respondent to produce the full range of relevant transaction documents in support of each invoice including the Local purchase Order, Delivery note (Goods' received note) and Credit notes where applicable to enable processing of the payments.
15. More crucially, the subject being a contract of supply of goods and services, it was incumbent upon the Respondent to prove by production of a delivery notes, that the goods were delivered and received by the Appellant and services provided to the Appellant's satisfaction. Delivery or provision of services would ordinarily be proved by a service sheet in case of provision of maintenance services or where the Respondent provided training services to the Defendant's employees certificates of participation would suffice.
16. It submits that the invoices at pages between 22 and 233 (both inclusive) and page numbers 257-260 of the Appellant's Record of Appeal) were not supported by any proof of delivery of the goods or provision of services.
17. Without the supporting documents, the Respondent was inviting the lower Court and this court to speculate as to whether the supplies were made. This position was similarly held in the case of E.P. Communications Limited v East Africa Courier Services Limited [20191 eKLR in the following manner:
"The Appellant may have supplied the goods, but courts of law act on hard evidence not sympathy or speculation. In the absence of a delivery note or evidence of receipt of the goods, it becomes doubtful whether the goods were delivered. '
18. In dealing with the Appellants dispute with regard to prove of delivery of goods and services, the Honorable Court appears to have shifted the burden to the Appellant to prove the negative i.e that the Appellant ought to have called evidence to prove that the goods were never delivered. At page 12 of the Judgment (2nd paragraph) shown at Page 407 of the Record the Honorable Magistrate is rendered herself as follows:
19. "DW I was hard pressed to explain why none of the said agents/farm managers had at the very least filed reports disputing the deliveries or maintenance of equipment". (Seepage number 407 of the Appellant's Record of Appeal).
20. This shifting of the burden of proof from the Respondent to the Appellant is, in the Appellant's humble submission, contrary to well established rules of evidence as restated in Evans Otieno Nyakwana v Cleophas Bwana Ongaro 12015] KEHC 8440 (KLR) where the Honorable Court held as follows:
"As a general proposition 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:
21. 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.
22. Furthermore, the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act".
23. It is a well-established principle of law that whoever lays a claim before the court against another has the burden to prove it as per Sections 107 and 108 of the Evidence Act.
24. The Halsbury's Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes the burden of proof thus:
"The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party 's case. Ifat the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied.
25. If the Plaintiff fails to discharge the burden of proof, the claim will be dismissed. (Bwire v Wayo & Sailoki 12022] eKLR. And the standard of proof is on a balance of probabilities.
26. The Appellant therefore faults the lower Court for finding that the Respondent had established its claim to the required standard and in that regard prays that this Honorable Court proceeds to dismiss it with costs.
27. On Grounds No. 6 & 7: Non-compliant invoices the Appellant argues that The Plaintiff properly and correctly set out at Paragraphs 5 to 10 of the Plaint the business processes adopted by the Parties in lieu of a written agreement right from the initiation to the settlement of each individual transaction.
28. The Appellant operates several farms across the country at which purchase orders were initiated for the supply goods. Settlement of payments was centralized and was effected on the basis of documentation recorded or exchanged at farms and hence the process adopted by the parties. (Paragraphs 7 & 8 ofthe Statement of Defence).
29. The Appellant argues that the following invoices were non-compliant with established commercial practice for failure to attach crucial documents and therefore not payable. The Appellant therefore faults the lower Court for failure to properly evaluate the evidence on record hence reaching an erroneous decision.
30. In relation to Ground No. 8- Failure to give consideration and credit for part payments made by the Appellant and admitted in the Respondent's statement of account it submits that it is the Appellant's submission that the Learned Magistrate fell into serious error of law and fact in entering judgement for Kshs. 2,966,558.53/= as pleaded in the Plaint without evaluating the evidence and giving due consideration and credit for the payments made by the Appellant and admitted in the Respondent's own Statement of Account for the following:
a) Credit for Part payment of Kshs. (Ref No. 14973) captured in Respondent's Statement on account of Invoice No. 11525 for training services conducted by the Respondent. (See Statement of Account at page I of the Supplementary Record of Appeal).
b) Credits in the Statement of Account at page numbers 1-5 of the Appellant's Supplementary Record of Appeal and page numbers 239-242 of the Appellant's Supplementary Record ofAppeal).
31. Ground No. 9, 10 & 12-The Respondent's claim caught up by the Statute of Limitations it is submitted that The provision of Section 4 of the Limitations of Actions Act is quite clear on the period of limitations. The instant case being a claim under contract, the Respondent is restrained from bringing a claim after six (6) years.
32. To buttress this argument, the Appellant wishes to rely on the Court of Appeal decision in Thuranira Karauri Vs Agnes Ncheche11997] eKLR that held as follows:
Subsequently, that where a suit is time barred, the same is incompetent and consequently a court has no jurisdiction to entertain such suit.
33. In addition, in the case of Gathoni v Kenya Cooperative Creameries Ltd (1982) KLR 104, the court observed that: -
"The law of Limitation of Actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intended plaintiff to exercise reasonable diligence and take reasonable steps in his own interest "
34. Lord Green MR said it all in Hilton v Sultan S. Team Laundry
"But the statute of limitation is not concerned with merits, once the axe falls, it falls and a defendant who is fortunate enough to have acquired the benefit ofthe statute of limitation is entitled to insist on his strict rights. "
35. In this case, it is not in dispute that different goods were ordered for at different times with each transaction being supported by individual commercial documents. It is stated at the foot note of each invoice: "please make cheques payable to the Real IPM Co (K) Ltd within 30 days of the issue of invoice". In other words, the time for statute of limitations started running at the end of 30 days from the issuance of each invoice.
36. It is the Appellant's submission that the following invoices were time barred.This can be seen in the analysis on the application of the statute of limitations at page numbers 246-247 and 260-261 of the Appellant's Record of Appeal.
37. Section 23(3) provides for instances where the limitation period may be extended i.e. by acknowledgement or part payment of debt. What would constitute an acknowledgement of debt is prescribed in Section 24 of the Act.
38. The Respondent alleged that by the Appellant's emails of December 2022 and 24th January 2024, the Appellant unequivocally acknowledged indebtedness to the Respondent.
39. It is the Appellant's humble submission that for the Respondent's allegation set out hereinabove to hold water, the acknowledgement must be unequivocal and that it must comply with evidential admissibility requirements. Both requirements must be satisfied.
40. In the I st instance, for an acknowledgement of debt to be considered by this honorable court, it must be in writing and unequivocal. The Honorable Court in Kamunda t/a Kamunda Njue& Co Advocates v County Council of Narok (Miscellaneous Application E233 of 2022) [20241 KEHC 3528 (KLR) (Civ) (19 March 2024) (Ruling) held that mere correspondence or subsequent payments could not be construed as synonymous with an acknowledgment of the debt or fresh accrual of the cause in respect of the debt, and to provide a defence against the plea of limitation.
41. Additionally, in Telkom Kenya Ltd vs Kenya Railways Corporation [2018] eKLR Onguto J (as he then was) held that an acknowledgement which must be in writing and unequivocal revives an action denovo.
According to the Black's Law Dictionary 10th Edition, the meaning of the word unequivocal is 'unambiguous; clear,free from uncertainty. '
42. The Appellant submits that email dated 24th January 2023 was sent in further response to its email of 6th December 2022, indicating the various contentions the Appellant had with the claims raised by the Respondent i.e. those that had been verified those that were subject to verification and confirmation and those that were unsupported and payable and that the same did not consist of an unequivocal acknowledgement as set out in the Respondent's bundle of documents at page numbers 7-11 of the Appellant's Supplementary Record of Appeal.
43. Based on the foregoing, the Appellant submits that neither of the emails in their respective wording constituted an unequivocal acknowledgement within the meaning of Section 23(3) of the Limitation of Actions Act.
44. In addition, a scrutiny of the alleged email dated 24th January 2023 discloses that there was no specific invoice rereferred to therein. For instance, while the alleged email speaks of the sum of Kshs. 86,250 as owing for the month of December 2020, a look at the invoices listed in the Plaint for the same period sums up to Kshs. 120,000. This is replicated for other clusters and cannot amount to an unequivocal amount of debt.
45. There being no an unequivocal acknowledgment of indebtedness by the Appellant that would otherwise extend the limitation period, we urge this Court to find that the claim by the Respondent amounting to Kshs. 1,924,600/= is time barred and that the Court has no jurisdiction to entertain it.
46. Further, the Respondent in an effort to cloth this Court with jurisdiction to entertain these statute barred claims, has submitted that the instant suit constitutes a continuing injury and that the cause of action is renewed thereof as set out at paragraph 39 of the Plaintiffs written submissions at page number 274 of the Appellant's Record of Appeal.
47. The Supreme Court of India in Balakrishna S.P. Waghmare v Shree Dhyaneshwar Maharaj Sansthan AIR 1959 SC 798 explained the concept of continuing wrong (in the context of the Indian Limitation Act) as follows:
"It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. "
48. It is the Appellant's humble submission that contrary to the Respondent's argument and the lower Court's finding about its claim being a continuing injury, each invoice represented a separate contract from the previous one. Each had a specific date within which it was payable and hence a specific date when it was caught up by laches.
49. Additionally, the concept of continuing injury is not applicable in contract law except in the special category of contracts of employment.
50. In the 2nd instance, Section 106B of the Evidence Act cap 80 Laws of Kenya provides that any information contained in an electronic record which is printed on paper, shall be deemed to be also a document, if accompanied by a Certificate of Electronic Evidence.
51. Under Section 106B (4) (a) thereof, the aforesaid certificate must identify the electronic record containing the statement and describing the manner in which it was produced.
52. The Court of Appeal in John Lokitare Lodinyo v Independent Electoral and Boundaries Commission & 2 others [2018] eKLRheld as follows in relation to a Certificate of Electronic Evidence:
"It is at this juncture that the provisions of section 106 B of the Evidence Act come into play as the section sets out the conditions to be fulfilled to have this evidence admissible since evidence shall only be admissible if a certificate is presented identifying the electronic record and a description of the manner in which the electronic evidence was produced, together with any particulars of any device involved in the production of that document, which the appellant did not do.
53. It is the Defendant's humble submission that the Respondent's emails wherein the statement of acknowledgement was set out do not satisfy the requirements set out under the aforesaid provisions of the Evidence Act.
54. While Mr. Benard Nderitu signed a Certificate of Electronic Evidence about some emails exchanged between the Defendant and the Plaintiffs advocate, no specific email is identified in the said certificate.In particular, the emails dated 19th December 2022 and 24th January 2024 allegedly from the Defendant are not mentioned anywhere in the said certificate. (See Certificate of Electronic Evidence at page numbers 13-14 of the Appellant's Supplementary Record of Appeal.
55. The Appellant therefore submits that without proper identification, the said emails and contents set out therein are inadmissible to prove a case of tolling the limitation period.
56. It urges the Court to find that the lower Court erred in failing to dismiss the Respondent's claim against the Appellant for having been hopelessly time barred.
57. In arguing Ground No. II Interest it submits that while the Respondent prayed for interest on the claimed amount at court rates which prayer the lower Court granted, it is the Appellant's submission that the proper rate would be as agreed in their contract with the Appellant. It is clearly shown at the foot note of the Respondent's invoices that interest rate was 2.5% flat rate.
58. In urging this position, we are guided by the court's holding in South Nyanza Sugar Co. Ltd v Leonard O. Arera [20201 eKLR where it was clearly stated as follows:
"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 ".
59. The Appellant therefore submits that the lower Court's award of interest at court rates is tantamount to rewriting the contract between the parties herein and the same ought to be set aside.
60. On Costs it submits that Section 27 (1) of the Civil Procedure Act, an order for costs is at the court's discretion. There are several factors the court considers before making an award for costs. These were enumerated in Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [20161 eKLR in the following manner:
"To my mind, in determining the issue ofcosts, the court is entitled to look at inter alia (i) the conduct of the parties, (ii) the subject of litigation, (iii) the circumstances which led to the institution of the proceedings, (iv) the events which eventually led to their termination,(v) the stage at which the proceedings were terminated, (vi) the manner in which they were terminated, (vii) the relationship between the parties and (viii) the need to promote reconciliation amongst the disputing parties pursuant to Article 159 (2) (c) ofthe Constitution "
61. From the foregoing, it is the Appellant's submission that owing to the existing relationship between the parties herein and the obligation to promote reconciliation, each party should have been ordered to bear their own cost of the suit in an instance where the Honorable court finds in favor of the Respondent.
62. The Appellant submits that the lower Court's finding that the Respondent had discharged its burden of proof was erroneous. The Appellant highlighted the multifarious discrepancies affecting the Respondent's claim i.e. most invoices being time barred or missing requisite supporting documents. The Respondent was therefore not entitled to judgment in the sum of Kshs. 2,966,558.53/=, interest and costs as awarded by the lower Court.
The Respondent’s submissions;
63. It submits that The Memorandum of Appeal is defective prima facie, as the orders are incapable of being granted. This is because no orders were issued by the High Court on 16th December 2024 that can be set aside or substituted by this Honourable Court.
64. It submits that the appeal should therefore fail on this ground alone and for which we pray that the appeal be dismissed.
The Respondent herein is a producer and supplier of bio pesticides products. The appellant and the respondent entered into an agreement for the supply and deliver such products by the respondent to the appellant.
65. The respondent on various dates issued Local Purchase Orders (LPO''S) supply and delivery of various bio pesticides products. The goods were supplied and invoices issued for each LPO as detailed in the statement of account.
66. On or around the year 2011, the appellant stopped and/or began delaying payment on various products supplied by the respondent.
67. Despite this, the respondent on account of longstanding business relationship which had existed for over 10 years between the parties continued to supply the products ordered by the appellant.
68. Despite efforts at getting to an amicable settlement from the respondent, the same did not bear fruit and the appellant failed to honour the debt prompting the Respondent to instituted the suit at the lower court seeking the sum of Kshs. 2,966.558.53 being the principal amount due from the defendant with interests and costs of the suit.
69. In its judgement the trial court awarded the respondent a sum of Kshs.2,966,558.53 as prayed in the plaint together with interests and costs of the suit.
70. The Appellant contends that the trial court failed to evaluate the evidence, particularly on the issue of duplicated invoices and lack of delivery notes, we humbly submit that this allegation is misconstrued for the reasons we shall submit on hereunder.
71. The trial court, in its judgment, meticulously analysed the evidence including the Respondent’s invoices, the delivery notes and the Appellant’s own admissions in correspondence.
72. To purport that the trial court did not consider the evidence adduced by the appellant has no legal basis.
73. The most telling admission is the email dated 24th January, 2025 on page 10 of the appellant’s supplementary record of appeal where the appellant’s financial officer confirms that they had verified invoices amounting to Kshs. 1,714,102.50, were in the process of verifying additional invoices amounting to. Kshs. 701,490.00 but were disputing invoices Kshs 466,356.00.
74. They proposed to settle the invoice in three instalments. They did not however fulfil the above undertaking on settling the verified amount in their correspondence which was relied upon by the respondent herein.
75. On the allegation of duplication of invoices, we
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2. The matter was heard and determined by the judgment of the Honorable Magistrate Isabellah Barasa on 16d1 December 2024 whereby the court awarded the Respondent the full sum of Kshs. 2,966,558.53 as pleaded in the Plaint together with costs and interest.
The Appellant’s case;
3. Aggrieved by the said judgment the Appellant filed the present appeal against the whole judgment on the following grounds:
1) Ground I. THAT the learned Magistrate in dereliction of her judicial duty failed to evaluate the evidence presented by the Respondent and to arrive at a just and fair finding on the specifically proven amount payable and instead simply awarded the sum of Kshs. 2,966,558.53/= as pleaded in the Plaint by the Respondent and thus fell into error both of law and fact.
2) Ground 2. THAT the learned judge erred in fact and law in making a specific finding that there were no duplications of invoices in the Particulars of claim pleaded by the Respondent at paragraph 12 of the Plaint while it is apparent on the face of the Plaint that Invoices Numbers 5071, 5104, 7509, 10447, 10524, 10785, 10808, 12491, and 37963 are duplicated creating an overstatement ofKshs 504,758.00 in the awarded sum.
3) Ground 3. THAT in view of the apparent discrepancies in the apparent particulars of claim as pleaded the learnedjudge erroredin law in failing to evaluate the evidence and make any finding on which evidence had been admitted as prove oftheRespondent's claim and thus arrived at an unjust and unfairjudgment.
4) Ground 4. THAT the learned judge erred in law and in fact in holding that there was no evidence whatsoever to prove of non-delivery Of the goods in respect of invoice numbers
5) 12491 and 10902 contested by the Appellant amounting to Kshs 97,180.00 that had no supporting delivery notes.
6) Ground 5. THAT the Learned Magistrate fell into serious error of law in holding that the onus fell upon the Respondent to prove that there was non-delivery goods and services thus unjustly shifting the burden ofprove and imposing an impossible and irrational burden ofprove upon the Appellant to prove a negative and denied fact.
7) Ground 6. THAT the Learned Magistrate fell into serious error of law and fact in failing to hold the Respondent bound by its pleadings and erred in disregarding the Respondent's own pleadings with regard to the established business process and the required documents including the requirement of delivery notes as the evidence of the completed and payable transactions between the parties.
8) Ground 7. THAT the Learned Magistrate erred and misdirected herself in fact and law by completely disregarding the import of evaluating supporting documents such as delivery notes in a case involving commercial transaction as in this instant case.
9) Ground 8. THAT the Learned Magistrate fell into serious error of law and fact in entering judgement for Kshs. 2,966,558.53/= as pleaded in the Plaint without evaluating the evidence and giving due consideration and credit for the payments made by the Appellant amounting to Kshs. 619,780 and admitted in the Respondent's own Statement ofAccount for the following:
a. Part payment of Kshs. captured in Respondent's Statement in respect in the Invoice No. 11525 for trainingservices conducted by the Respondent.
b. Part payment ofKshs. 210,880.00 /= captured in Respondent's Statement of in respect of Invoices Numbers and 11205.
10) Ground 9. THAT the Learned Magistrate fell into error of law and fact in disregarding the Appellant's defence of limitation.
11) Ground 10. THAT the Learned Magistrate fell into error of law and fact and misdirected herself and disregarded the pleadings in holding that for purposes of the statute of limitation of actions the computation of time each invoice and did not constitute a separate contract while at the same time holding that there was no common business contract between the parties.
12) Ground 11. THAT the Learned Magistrate fell into serious error of law and fact in holding that for purposes of the statute of limitation of actions the computation of time had been opened by acknowledgment of debt by the Appellant.
13) Ground 12. THAT the Learned Magistrate erred in fact and law by disregarding the contractual rate of interest agreed between parties as provided in the respective invoices that expressly provided for a flat rate of 2.5%. substituting the same with interest at court rates.
14) Ground 13. THAT as a consequence of the leaned magistrate's decision and judgment against the Appellant for the sum of Kshs. 2,966,558.53/2 plus interest and costs was unjust, against the weight of evidence and was based on wrong findings on facts and based on wrong application of principles of law and has occasioned miscarriage of justice.
4. The Appellant seeks the following orders:
i) The appeal be allowed.
ii) That the Judgment and Decree of the High Court delivered on 16th December, 2024 be set aside and or substituted by the judgement of this Court.
iii) The Orders made by the High Court be discharged and vacated.
iv) That the Respondent do pay the costs of this Appeal and the costs of the proceedings in the Court below.
5. In arguing whether the trial Court's finding that the Respondent had discharged its burden of proof and was entitled to judgment in the sum of Kshs. 2,966,558.53 was correct it submits that it now a well settled principle of law that the duty of the 1 st aAppellate Court is to reevaluate the evidence which was adduced in the subordinate Court both on points of law and facts and come up with its own findings and conclusions as was held by the High Court in Kingoo & 2 others v Ntenge (Civil Appeal E798 of 2022) [20241 KEHC 7606 (KLR) (20 June 2024) (Judgment).
6. Thus, the duty of the Court is to subject the evidence tendered in the trial Court to re-appraisal, being careful to note that it did not have the opportunity of seeing and hearing the witnesses first hand.
7. With all due respect to the trial court, for the grounds and reasons below stated, the Appellant humbly submits that the learned magistrate erred in finding and holding that the Respondent had discharged its burden of proving that it was entitled to judgment in in the full sum of Kshs. 2,966,558.53 as pleaded for in the Plaint.
8. In advancing Grounds No 2 and 3 it submits that The Respondent's Plaint pleaded particulars of invoices claimed to be outstanding (Paragraph 12 of the Plaint) of which the numerous ones were duplicated in the stated particulars with the effect of enlarging the amount claimed and ultimately awarded in judgment by a sum of Kshs. 2,966,558.53.It submits that this duplication created an overstatement. This is set out at paragraph 12 of the Plaint at page numbers 7-11 of the Appellant's Record of Appeal.
9. It submits that in light of the clear and easily discernable duplication of pleaded invoices aforesaid the Honorable Magistrate's categorical statement and finding that "Paragraph 12 of the Plaint does not contain duplicated invoices" is curious and clearly wrong. It lends credence to the appellant's complaint that, in the entry of judgment for the full pleaded sum, the trial court failed to apply itself with due diligence and fair consideration of the matter to the Appellant's ultimate detriment.
10. Further it submits that by failing to properly evaluate the evidence or take into serious consideration the Appellant's written submissions the lower Court failed to observe that the Respondent's Bundle of documents contained duplications of invoices as set out at page numbers 22-236 of the Appellant's Record of Appeal.
11. In advancing Ground NO. 4 & 5: Non-delivered goods and services it submits that the primary suit herein arose from trade transactions that involved the placement of orders, delivery of goods and invoicing. The onus was upon the Respondent to proof that the goods for which it was claiming payment had indeed been delivered to the Appellant. Under the parties' contract, such proof was to be established by duly authorized delivery note.
12. The Appellant submits that the process and documentation pleaded at Paragraphs 5 to 10 of the Plaint informed each transaction between the parties and constitutes a framework upon which the trial court was enjoined to interrogate the claims in the suit.
13. It submits that the above process and documentation is not unique and is common to commercial transactions of similar nature and the failure to avail any of the document should raise reasonable suspicion on the completion of the transaction. In E.P. Communications Limited v East Africa Courier Services Limited [20191 eKLR, the court in distinguishing an Invoice, LPO and Délivery Note held as follows;
"The purpose of an invoice is that it is issued by a seller to request for payment for purchase. An LPO is sent by a purchaser to the seller to confirm, order and authorize the purchase. A delivery note is proof of delivery ofgoods.
14. It was therefore incumbent upon the Respondent to produce the full range of relevant transaction documents in support of each invoice including the Local purchase Order, Delivery note (Goods' received note) and Credit notes where applicable to enable processing of the payments.
15. More crucially, the subject being a contract of supply of goods and services, it was incumbent upon the Respondent to prove by production of a delivery notes, that the goods were delivered and received by the Appellant and services provided to the Appellant's satisfaction. Delivery or provision of services would ordinarily be proved by a service sheet in case of provision of maintenance services or where the Respondent provided training services to the Defendant's employees certificates of participation would suffice.
16. It submits that the invoices at pages between 22 and 233 (both inclusive) and page numbers 257-260 of the Appellant's Record of Appeal) were not supported by any proof of delivery of the goods or provision of services.
17. Without the supporting documents, the Respondent was inviting the lower Court and this court to speculate as to whether the supplies were made. This position was similarly held in the case of E.P. Communications Limited v East Africa Courier Services Limited [20191 eKLR in the following manner:
"The Appellant may have supplied the goods, but courts of law act on hard evidence not sympathy or speculation. In the absence of a delivery note or evidence of receipt of the goods, it becomes doubtful whether the goods were delivered. '
18. In dealing with the Appellants dispute with regard to prove of delivery of goods and services, the Honorable Court appears to have shifted the burden to the Appellant to prove the negative i.e that the Appellant ought to have called evidence to prove that the goods were never delivered. At page 12 of the Judgment (2nd paragraph) shown at Page 407 of the Record the Honorable Magistrate is rendered herself as follows:
19. "DW I was hard pressed to explain why none of the said agents/farm managers had at the very least filed reports disputing the deliveries or maintenance of equipment". (Seepage number 407 of the Appellant's Record of Appeal).
20. This shifting of the burden of proof from the Respondent to the Appellant is, in the Appellant's humble submission, contrary to well established rules of evidence as restated in Evans Otieno Nyakwana v Cleophas Bwana Ongaro 12015] KEHC 8440 (KLR) where the Honorable Court held as follows:
"As a general proposition 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:
21. 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.
22. Furthermore, the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act".
23. It is a well-established principle of law that whoever lays a claim before the court against another has the burden to prove it as per Sections 107 and 108 of the Evidence Act.
24. The Halsbury's Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes the burden of proof thus:
"The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party 's case. Ifat the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied.
25. If the Plaintiff fails to discharge the burden of proof, the claim will be dismissed. (Bwire v Wayo & Sailoki 12022] eKLR. And the standard of proof is on a balance of probabilities.
26. The Appellant therefore faults the lower Court for finding that the Respondent had established its claim to the required standard and in that regard prays that this Honorable Court proceeds to dismiss it with costs.
27. On Grounds No. 6 & 7: Non-compliant invoices the Appellant argues that The Plaintiff properly and correctly set out at Paragraphs 5 to 10 of the Plaint the business processes adopted by the Parties in lieu of a written agreement right from the initiation to the settlement of each individual transaction.
28. The Appellant operates several farms across the country at which purchase orders were initiated for the supply goods. Settlement of payments was centralized and was effected on the basis of documentation recorded or exchanged at farms and hence the process adopted by the parties. (Paragraphs 7 & 8 ofthe Statement of Defence).
29. The Appellant argues that the following invoices were non-compliant with established commercial practice for failure to attach crucial documents and therefore not payable. The Appellant therefore faults the lower Court for failure to properly evaluate the evidence on record hence reaching an erroneous decision.
30. In relation to Ground No. 8- Failure to give consideration and credit for part payments made by the Appellant and admitted in the Respondent's statement of account it submits that it is the Appellant's submission that the Learned Magistrate fell into serious error of law and fact in entering judgement for Kshs. 2,966,558.53/= as pleaded in the Plaint without evaluating the evidence and giving due consideration and credit for the payments made by the Appellant and admitted in the Respondent's own Statement of Account for the following:
a) Credit for Part payment of Kshs. (Ref No. 14973) captured in Respondent's Statement on account of Invoice No. 11525 for training services conducted by the Respondent. (See Statement of Account at page I of the Supplementary Record of Appeal).
b) Credits in the Statement of Account at page numbers 1-5 of the Appellant's Supplementary Record of Appeal and page numbers 239-242 of the Appellant's Supplementary Record ofAppeal).
31. Ground No. 9, 10 & 12-The Respondent's claim caught up by the Statute of Limitations it is submitted that The provision of Section 4 of the Limitations of Actions Act is quite clear on the period of limitations. The instant case being a claim under contract, the Respondent is restrained from bringing a claim after six (6) years.
32. To buttress this argument, the Appellant wishes to rely on the Court of Appeal decision in Thuranira Karauri Vs Agnes Ncheche11997] eKLR that held as follows:
Subsequently, that where a suit is time barred, the same is incompetent and consequently a court has no jurisdiction to entertain such suit.
33. In addition, in the case of Gathoni v Kenya Cooperative Creameries Ltd (1982) KLR 104, the court observed that: -
"The law of Limitation of Actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intended plaintiff to exercise reasonable diligence and take reasonable steps in his own interest "
34. Lord Green MR said it all in Hilton v Sultan S. Team Laundry
"But the statute of limitation is not concerned with merits, once the axe falls, it falls and a defendant who is fortunate enough to have acquired the benefit ofthe statute of limitation is entitled to insist on his strict rights. "
35. In this case, it is not in dispute that different goods were ordered for at different times with each transaction being supported by individual commercial documents. It is stated at the foot note of each invoice: "please make cheques payable to the Real IPM Co (K) Ltd within 30 days of the issue of invoice". In other words, the time for statute of limitations started running at the end of 30 days from the issuance of each invoice.
36. It is the Appellant's submission that the following invoices were time barred.This can be seen in the analysis on the application of the statute of limitations at page numbers 246-247 and 260-261 of the Appellant's Record of Appeal.
37. Section 23(3) provides for instances where the limitation period may be extended i.e. by acknowledgement or part payment of debt. What would constitute an acknowledgement of debt is prescribed in Section 24 of the Act.
38. The Respondent alleged that by the Appellant's emails of December 2022 and 24th January 2024, the Appellant unequivocally acknowledged indebtedness to the Respondent.
39. It is the Appellant's humble submission that for the Respondent's allegation set out hereinabove to hold water, the acknowledgement must be unequivocal and that it must comply with evidential admissibility requirements. Both requirements must be satisfied.
40. In the I st instance, for an acknowledgement of debt to be considered by this honorable court, it must be in writing and unequivocal. The Honorable Court in Kamunda t/a Kamunda Njue& Co Advocates v County Council of Narok (Miscellaneous Application E233 of 2022) [20241 KEHC 3528 (KLR) (Civ) (19 March 2024) (Ruling) held that mere correspondence or subsequent payments could not be construed as synonymous with an acknowledgment of the debt or fresh accrual of the cause in respect of the debt, and to provide a defence against the plea of limitation.
41. Additionally, in Telkom Kenya Ltd vs Kenya Railways Corporation [2018] eKLR Onguto J (as he then was) held that an acknowledgement which must be in writing and unequivocal revives an action denovo.
According to the Black's Law Dictionary 10th Edition, the meaning of the word unequivocal is 'unambiguous; clear,free from uncertainty. '
42. The Appellant submits that email dated 24th January 2023 was sent in further response to its email of 6th December 2022, indicating the various contentions the Appellant had with the claims raised by the Respondent i.e. those that had been verified those that were subject to verification and confirmation and those that were unsupported and payable and that the same did not consist of an unequivocal acknowledgement as set out in the Respondent's bundle of documents at page numbers 7-11 of the Appellant's Supplementary Record of Appeal.
43. Based on the foregoing, the Appellant submits that neither of the emails in their respective wording constituted an unequivocal acknowledgement within the meaning of Section 23(3) of the Limitation of Actions Act.
44. In addition, a scrutiny of the alleged email dated 24th January 2023 discloses that there was no specific invoice rereferred to therein. For instance, while the alleged email speaks of the sum of Kshs. 86,250 as owing for the month of December 2020, a look at the invoices listed in the Plaint for the same period sums up to Kshs. 120,000. This is replicated for other clusters and cannot amount to an unequivocal amount of debt.
45. There being no an unequivocal acknowledgment of indebtedness by the Appellant that would otherwise extend the limitation period, we urge this Court to find that the claim by the Respondent amounting to Kshs. 1,924,600/= is time barred and that the Court has no jurisdiction to entertain it.
46. Further, the Respondent in an effort to cloth this Court with jurisdiction to entertain these statute barred claims, has submitted that the instant suit constitutes a continuing injury and that the cause of action is renewed thereof as set out at paragraph 39 of the Plaintiffs written submissions at page number 274 of the Appellant's Record of Appeal.
47. The Supreme Court of India in Balakrishna S.P. Waghmare v Shree Dhyaneshwar Maharaj Sansthan AIR 1959 SC 798 explained the concept of continuing wrong (in the context of the Indian Limitation Act) as follows:
"It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. "
48. It is the Appellant's humble submission that contrary to the Respondent's argument and the lower Court's finding about its claim being a continuing injury, each invoice represented a separate contract from the previous one. Each had a specific date within which it was payable and hence a specific date when it was caught up by laches.
49. Additionally, the concept of continuing injury is not applicable in contract law except in the special category of contracts of employment.
50. In the 2nd instance, Section 106B of the Evidence Act cap 80 Laws of Kenya provides that any information contained in an electronic record which is printed on paper, shall be deemed to be also a document, if accompanied by a Certificate of Electronic Evidence.
51. Under Section 106B (4) (a) thereof, the aforesaid certificate must identify the electronic record containing the statement and describing the manner in which it was produced.
52. The Court of Appeal in John Lokitare Lodinyo v Independent Electoral and Boundaries Commission & 2 others [2018] eKLRheld as follows in relation to a Certificate of Electronic Evidence:
"It is at this juncture that the provisions of section 106 B of the Evidence Act come into play as the section sets out the conditions to be fulfilled to have this evidence admissible since evidence shall only be admissible if a certificate is presented identifying the electronic record and a description of the manner in which the electronic evidence was produced, together with any particulars of any device involved in the production of that document, which the appellant did not do.
53. It is the Defendant's humble submission that the Respondent's emails wherein the statement of acknowledgement was set out do not satisfy the requirements set out under the aforesaid provisions of the Evidence Act.
54. While Mr. Benard Nderitu signed a Certificate of Electronic Evidence about some emails exchanged between the Defendant and the Plaintiffs advocate, no specific email is identified in the said certificate.In particular, the emails dated 19th December 2022 and 24th January 2024 allegedly from the Defendant are not mentioned anywhere in the said certificate. (See Certificate of Electronic Evidence at page numbers 13-14 of the Appellant's Supplementary Record of Appeal.
55. The Appellant therefore submits that without proper identification, the said emails and contents set out therein are inadmissible to prove a case of tolling the limitation period.
56. It urges the Court to find that the lower Court erred in failing to dismiss the Respondent's claim against the Appellant for having been hopelessly time barred.
57. In arguing Ground No. II Interest it submits that while the Respondent prayed for interest on the claimed amount at court rates which prayer the lower Court granted, it is the Appellant's submission that the proper rate would be as agreed in their contract with the Appellant. It is clearly shown at the foot note of the Respondent's invoices that interest rate was 2.5% flat rate.
58. In urging this position, we are guided by the court's holding in South Nyanza Sugar Co. Ltd v Leonard O. Arera [20201 eKLR where it was clearly stated as follows:
"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 ".
59. The Appellant therefore submits that the lower Court's award of interest at court rates is tantamount to rewriting the contract between the parties herein and the same ought to be set aside.
60. On Costs it submits that Section 27 (1) of the Civil Procedure Act, an order for costs is at the court's discretion. There are several factors the court considers before making an award for costs. These were enumerated in Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [20161 eKLR in the following manner:
"To my mind, in determining the issue ofcosts, the court is entitled to look at inter alia (i) the conduct of the parties, (ii) the subject of litigation, (iii) the circumstances which led to the institution of the proceedings, (iv) the events which eventually led to their termination,(v) the stage at which the proceedings were terminated, (vi) the manner in which they were terminated, (vii) the relationship between the parties and (viii) the need to promote reconciliation amongst the disputing parties pursuant to Article 159 (2) (c) ofthe Constitution "
61. From the foregoing, it is the Appellant's submission that owing to the existing relationship between the parties herein and the obligation to promote reconciliation, each party should have been ordered to bear their own cost of the suit in an instance where the Honorable court finds in favor of the Respondent.
62. The Appellant submits that the lower Court's finding that the Respondent had discharged its burden of proof was erroneous. The Appellant highlighted the multifarious discrepancies affecting the Respondent's claim i.e. most invoices being time barred or missing requisite supporting documents. The Respondent was therefore not entitled to judgment in the sum of Kshs. 2,966,558.53/=, interest and costs as awarded by the lower Court.
The Respondent’s submissions;
63. It submits that The Memorandum of Appeal is defective prima facie, as the orders are incapable of being granted. This is because no orders were issued by the High Court on 16th December 2024 that can be set aside or substituted by this Honourable Court.
64. It submits that the appeal should therefore fail on this ground alone and for which we pray that the appeal be dismissed.
The Respondent herein is a producer and supplier of bio pesticides products. The appellant and the respondent entered into an agreement for the supply and deliver such products by the respondent to the appellant.
65. The respondent on various dates issued Local Purchase Orders (LPO''S) supply and delivery of various bio pesticides products. The goods were supplied and invoices issued for each LPO as detailed in the statement of account.
66. On or around the year 2011, the appellant stopped and/or began delaying payment on various products supplied by the respondent.
67. Despite this, the respondent on account of longstanding business relationship which had existed for over 10 years between the parties continued to supply the products ordered by the appellant.
68. Despite efforts at getting to an amicable settlement from the respondent, the same did not bear fruit and the appellant failed to honour the debt prompting the Respondent to instituted the suit at the lower court seeking the sum of Kshs. 2,966.558.53 being the principal amount due from the defendant with interests and costs of the suit.
69. In its judgement the trial court awarded the respondent a sum of Kshs.2,966,558.53 as prayed in the plaint together with interests and costs of the suit.
70. The Appellant contends that the trial court failed to evaluate the evidence, particularly on the issue of duplicated invoices and lack of delivery notes, we humbly submit that this allegation is misconstrued for the reasons we shall submit on hereunder.
71. The trial court, in its judgment, meticulously analysed the evidence including the Respondent’s invoices, the delivery notes and the Appellant’s own admissions in correspondence.
72. To purport that the trial court did not consider the evidence adduced by the appellant has no legal basis.
73. The most telling admission is the email dated 24th January, 2025 on page 10 of the appellant’s supplementary record of appeal where the appellant’s financial officer confirms that they had verified invoices amounting to Kshs. 1,714,102.50, were in the process of verifying additional invoices amounting to. Kshs. 701,490.00 but were disputing invoices Kshs 466,356.00.
74. They proposed to settle the invoice in three instalments. They did not however fulfil the above undertaking on settling the verified amount in their correspondence which was relied upon by the respondent herein.
75. On the allegation of duplication of invoices, we
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