REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E1336 OF 2024
ADRIAN MAMBILI MEJA.................................................................... APPELLANT
VERSUS
WOOD TREATMENT TECHNOLOGY (K) LIMITED………….RESPONDENT
(Being an appeal from the judgment and decree of by Hon. Wendy K. Micheni (CM) on 28 th November 2024 at Nairobi in Milimani Commercial MCCC No. 404 of 2016 delivered on 20 th September 2024)
JUDGMENT
1. The appellant filed an appeal through the memorandum of appeal dated 21 st November 2024 praying for orders that the appeal be allowed, the judgment of the trial court be set aside, the appellant be awarded general damages and special damages in the sum of KShs 5,663,600/=, the costs of the appeal and the trial court be awarded to the appellant with an order that interest on special damages be from the date of filing suit in the trial court and interest on general damages from the date of judgment.
2. The appellant’s case before the trial court was presented through his further amended plaint dated 25 th November 2019, witness statements dated 29 th January 2016 for the plaintiff Adrian Mabili Meja, PW 1 and his witness Gavin Miyuka, PW 2 dated 12 th May 2016 which were adopted as their evidence in chief, and their testimonies in court on 5 th December 2022. The appellant sought general damages, special damages of KShs 5,663,600/= and interest on both for breach of contract and negligence.
3. It was the appellant’s case that he had a contract with the Rural Electrification Authority (REA) to supply it with 820 treated electric power poles at their Awasi site in Kisumu County. For the treatment of the poles, the appellant entered into another contract with the respondent. It was for the respondent to inspect, grade, approve and treat the poles.
4. It was the appellant’s contention that the respondent was to deliver the poles on his behalf to REA since the respondent shares a fence with REA. Further that he delivered 387 poles which the respondent inspected and approved all of them. However, the respondent delivered 260 of the poles to REA which paid him for the same. In spite of the appellant paying for the balance of 127 poles, the respondent, through negligence failed to treat the 127 poles and to deliver them to REA. This occasioned the appellant a loss of KShs 2,053,380/= and a further 454,527/= for treating the poles, 200,000/= for transportation costs and KShs 14,000/= to obtain a movement permit for the poles. Further, the appellant lost an opportunity to sell a further 433 poles worth KShs 8,183,700/= to REA. The appellant thus sued the respondent for special and general damages.
5. PW 2 only said that he transported the poles from the appellant’s farm in Kakamega and delivered them to the respondent at Awasi in nine trips. He did not indicate the total number of poles transported or even per trip.
6. The respondent’s case was presented through its amended statement of defence dated 8 th December 2019, the evidence of George Onyango, DW 1, a director of the defendant as presented in court and through his witness statement date 20 th January 2022.
7. The respondent stated that it is an accredited wood treatment plant and sub-contracted by REA to treat poles on its behalf. That REA conducts regular inspections to ensure that the respondent adheres to the set standards. Further, the respondent treats poles in line with the standards and quality measures set by REA. The respondent cannot therefore purport to allow to be treated at its plant any pole that does not meet the specification of REA.
8. In line with its business of treatment of poles, the respondent agreed to treat some poles delivered by the appellant.
9. The respondent treated the poles that met the required standards by REA and advised the plaintiff that 127 poles were bad and could not be treated as they did not meet standards for processing. That the plaintiff was advised to pick the same and had failed to do so since November 2013 to the time of the case. It was the respondent’s position that by rejecting the said poles it was not negligent nor did it breach any agreement.
10. The respondent denied the appellant’s claim regarding the 127 poles. It stated that the appellant was informed that the 127 poles were bad and could not be treated and was advised to pick them since November 2013 and they continued to incur storage charges at the respondent’s yard.
11. The respondent stated further that the figures quoted by the appellant as losses were exaggerated because according to the respondent the sum of KShs 454,527/= was not paid at all, the total cost for transportation of 387 poles was KShs 140,000/=, the forest permit for transporting 200 poles for one trailer was KShs 2,000/=.
12. Further that the defendant is not in the business of transporting treated poles to REA on behalf of its clients. That the defendant only treats poles and does not supply them to REA.
13. That the total cost for transporting 387 poles was KShs 140,000/- and the alleged KShs 210,000/- was not justified for transporting 127 poles. Further, the forest permit for a single trailer carrying 200 poles was KShs 2000/-. The plaintiff could not therefore seek KShs 14,000/-for transporting 127 (387) poles.
14. The claim for KShs 5,663,600/= was therefore denied in toto and the appellant was out on a fishing expedition for unjust enrichment from the respondent and there was no loss whatsoever occasioned by the respondent to the appellant. Further that if at all, the appellant lost any business with REA, then he was the author of his own misfortune and could not attribute the same to the respondent.
15. The witness said in his testimony that they needed only 387 poles and not 437 poles and that the sum of KShs 1.2 million was for 387 poles.
16. DW 1 said that they treated 260 poles and delivered them to REA as a favour to the appellant and that 127 poles were rejected with 50 being rejected at the initial inspection and 77 in the second batch were rejected.
17. DW 1 further said that he did not communicate to the appellant on the rejection but that the manager who communicated to him was one Pascal, a lady, but DW 1 did not know if he was a witness in the case.
18. After the parties closed their cases, learned counsels filed submissions.
19. The trial court, upon considering the evidence, found that the appellant had not proved his case on a balance of probability and dismissed it with costs.
20. In his appeal the appellant has raised some 12 grounds which are basically arguments in support of the appeal. Such argumentative grounds offend Order 42 Rule 1(2) which provides that grounds of appeal shall be set out without any argument or narrative.
21. The appeal was canvassed by way of written submissions filed by learned counsels for the parties.
22. The Appellant filed submissions 18 th August 2025 and condensed the twelve grounds into five as follows:
i. The trial court’s whole judgment was and is against the weight of the evidence before court.
ii. The trial court grossly misunderstood the whole evidence and relied on principles of law which were inapplicable.
iii. The whole evidence adduced by the parties established that the respondent was in breach of the contract that was between them and the appellant.
iv. The trial court grossly erred in law and fact in failing to award the appellant the amount of special damages which had been specifically pleaded and proved.
v. The trial court grossly erred in law and in fact in failing to award the appellant general damages for breach of contract.
23. Learned counsel further condensed these grounds by arguing grounds (i), (ii), and (iii) together.
24. The respondent on its part filed submissions on 9 th March 2026. It submitted only one issue for determination, that is, whether the appeal is merited.
25. The submissions are considered in the analysis that follows. Learned counsel submits that the appellant failed to prove his case on a balance of probability and therefore this appeal has no merit and should be dismissed with costs.
26. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held that:
“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 demeanor 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)”.
27. I have considered the trial court record as contained in the record of appeal, the grounds of appeal as set out in the memorandum and the submissions by learned counsels for the parties. The issue for determination is whether the learned trial magistrate erred in dismissing the appellant’s suit.
28. There was no dispute on the existence of the contract between the parties and the terms thereof. According to the appellant as contained in his pleadings and evidence, the appellant was to deliver raw electric power poles to the respondent to inspect, grade and approve then deliver to the Rural Electrification Authority (REA). The respondent insisted that the part of delivery to REA was only a gesture of goodwill as its business does not entail the same. The appellant appeared to agree with that issue when he conceded that the respondent was to deliver the poles to REA because they share a fence at their Awasi premises. That part of the contract was verbal. However, in execution, the contract was evidenced by various written notes such as Goods Receive Notes, invoice, among others. So, the contract was both oral and written.
29. There is no dispute that indeed some poles were delivered by the appellant for the respondent to inspect, grade, approve and deliver them to REA.
30. The first point of contention between the parties was how many poles the appellant delivered to the respondent. The appellant insisted that there were 437 poles delivered while the respondent maintained that only 387 were delivered by the appellant. Both parties however agree that 50 poles were rejected outright. The appellant said the reason was that they were undersize.
31. In paragraph 5 of the further amended plaint the appellant pleaded that he “cut from his farm and delivered 437 raw and untreated poles of varying sizes as specified in a table appearing in the plaint to the defendant’s pole grading and treating site at Awasi for the defendant to inspect, approve, grade and treat the same and eventually deliver then to REA.
32. The particulars of the poles, raw and untreated and treated delivered to the defendant and treated are set out in a table under the paragraph. They are in four rows each showing the length of the poles as either 10m, 11m, 12m or 14m, the total number of raw and untreated poles delivered to the defendant and treated as 387, those delivered to REA as 260 and those undelivered as 127.
33. The documents relied upon by both parties which shed light on the issue are Goods Receive Notes for assorted raw power transmission poles from the respondent Wood Treatment Technology Limited to the appellant Adrian Meja. Therefore, on the issue of supply and delivery I find that part of the contract was written. The Goods Receive Notes were as follows:
Date
Quantity
13/9/2013
50
14/9/2013
38
17/9/2013
50
18/9/2013
50
20/9/2013
40
23/9/2013
48
2/10/2013
49
7/10/2013
33
11/6/2014
29
Total
387
34. This evidence of Goods Receive Notes produced by the appellant himself shows that the number of poles delivered to the respondent was 387. The further amended pleading that they were 437 is not supported by any documentary evidence. It appears that the appellant did not have his own delivery note that would have been carried by the transporter, PW 2 and upon delivery of the poles, it be signed by the respondent’s personnel receiving them. In that case, the word of mouth by the appellant that he delivered 437 poles to the respondent cannot displace the written Goods Receive Note issued by the respondent.
35. Learned counsel for the appellant submits that the Goods Receive Notes only showed the raw poles which the respondent accepted as being of the right quality and size to be treated and that the rejected 50 raw poles were not indicated or shown as having been received by the respondent for the reason that they were not going to be treated. The evidence available is that 387 poles were delivered by the appellant to the respondent. The appellant not having produced his own record, or even oral evidence of the alleged delivery of 437 raw poles which then would show that upon delivery, the respondent segregated the acceptable from the unacceptable. There is also no evidence from the appellant that even after the alleged rejection of the poles outright, which he thinks was not proper, he protested to the respondent in spite of the deliveries being made in several trips.
36. One observation that is made from the evidence tendered is that the poles were delivered in nine trips. The maximum number of poles the vehicles carried in any one trip was 50. The appellant stated that the 50 poles rejected were in the first batch. Which was this first batch? Was it a whole lorry or where they various pieces from some of the deliveries?
37. The contention by the appellant that the Goods Receive Notes only captured the poles that would go for treatment is not supported by evidence, for instance of the appellant’s agent who was present or the appellant’s delivery notes and is thus rejected. Here, the appellant had himself to blame for not issuing a delivery note for the respondent to acknowledge how many raw poles had been delivered. I therefore find that the appellant delivered 387 and not 437 raw poles to the respondent.
38. I find it highly probable that this was the first delivery since they were rejected for their short length. Afterwards, the appellant must have adjusted the length to the required size and the subsequent deliveries were of the right lengths and they were accepted. Upon inspection they would then be subjected to approval, grading and then treatment. In that case, it was upon the appellant to prove that the poles then passed all these stages before being delivered to REA.
39. The next issue in contention was how many of these 387 poles were approved, graded and delivered to REA. Again, the appellant does not have evidence of his own on this issue. The respondent on its part producedand how many were rejected. Again, according to the appellant’s own pleading in paragraph 5A the poles delivered were 260. Indeed, the respondent conceded that 260 poles were delivered to REA.
40. Learned counsel’s submissions seem to leave out the aspect of the respondent having to approve the poles before delivery to REA. His submission is that REA had recommended the appellant’s raw poles and he had to have them treated by the respondent and so the appellant entered into a second contract with the respondent who was to grade and treat the raw poles and deliver to REA. This submission, to the extent that it leaves out the aspect of approve as pleaded and testified by the appellant is not complete.
41. The appellant went further in the same paragraph to plead that the respondent failed to deliver 127 treated poles to REA. The respondent on its part pleaded that it treats poles in line with the standards and quality measures set by REA. That the respondent cannot therefore purport to allow to be treated at its plant any pole that does not meet the specification of REA. The appellant having pleaded that the 127 poles were treated, the burden to prove that indeed the poles were so treated was upon him. There was no such evidence tendered by the appellant. In paragraph 5A(c) the plaintiff pleaded under particulars of negligence of the defendant that the defendant had failed to communicate with the plaintiff the fate of his 127 poles (and the rejected 50 poles). He supported that averment with his testimony in court (hand written proceedings) where he said that the respondent failed to account for the 127 poles.
42. The appellant’s case was that the respondent was to inspect, approve, grade and treat the raw poles and deliver to REA. Therefore, if any of the poles were not approved as pleaded by the respondent, they would not proceed to grading and treatment. In fact, the appellant produced another set of delivery notes addressed to Rural Electrification Authority (REA) some bearing his name stamp as shown in the table appearing below.
Date
Quantity
Length (m)
Vehicle number
16/10/2013
21
06
12
14
KAV 349L
21/11/2013
70
10
KBS 670T
26/11/2013
35
11
KAV 349L
23/01/2014
29
43
12
14
KBV 549H/ZD086S
24/03/2014
46
10
10
11
KAV 349L
Total
260
43. Again, these being documents relied upon by the appellant, he cannot run away from them. They are his evidence showing the number of treated poles delivered to REA. They were 260. I find that the appellant failed to prove that the 127 poles were in fact approved and graded for treatment. Therefore, his assertion that the respondent failed to account for 127 treated poles had no basis.
44. However, thus far the appellant had showed that the respondent had not accounted for the 127 poles. The appellant said that the respondent did not inform him of the fate of those poles. In evidence, DW 1 for the respondent said that communication to the appellant that the 127 poles had been rejected was done by one Pascal. Although Pascal was not a witness in the case, the appellant however in his pleadings and evidence that he was aware that the respondent had rejected the first 50 poles. He therefore must have received communication about the rejection of the 50 poles. Therefore, what he was not informed about, as there is no evidence to show otherwise, was the fate of 77 poles.
45. All the same, communication or no communication over the 127 poles, there was no written evidence that the respondent handed back the said poles to the appellant. Granted that part of the contract was oral, DW 1 said that Pascal communicated to the appellant about the rejection. He went further to assert that rejected poles had to be collected within seven days. He was not the one who communicated thee same to the appellant. Evidence that Pascal communicated the same to the appellant is hearsay and inadmissible.
46. I am inclined to believe the appellant’ assertion that no communication was made to him to collect the rejected poles. DW 1 said that they remained at their premises incurring storage charges. Without informing the appellant that the same had been rejected, the appellant could not have been expected to collect them. I therefore find that the rejected poles remained with the respondent all through.
47. The oral contract between the parties did not provide for what would happen to poles that were not fit for delivery to REA. In that case, the respondent cannot be held to have breached any term of the contract.
48. The appellant said that the respondent never informed him of the whereabouts of the poles. That he suspected the respondent delivered them to REA. That assertion of the poles having been delivered to REA is not backed by evidence and I reject it. What I however find in favour of the appellant is that the respondent never explained the whereabouts of the poles and had never made them available to the appellant for his collection. Even in the defence, the respondent did not aver that the poles were available at its yard for the appellant’s collection. It alleged that they would be attracting storage charges but did not counterclaim for the same. There is no indication that the poles were still available for the appellant’s collection and even if they are I do not think they are of any worth.
49. When the respondent determined that the 127 poles had been rejected, it meant the appellant had an immediate right to their possession. The appellant’s vehicles were always going to the respondent’s yard and if the poles were available for return to the appellant, the respondent would have asked the appellant’s agent to take them back in any of the return trips. The appellant said that he demanded for the poles but the respondent never gave them out. The learned trial magistrate found that since the appellant did not produce a letter to show such a demand, then he could not be believed. However, that was not a correct finding because as found earlier the parties were dealing with each other both orally and in writing. The appellant’s evidence that he demanded for the poles was not challenged and I find that he did.
50. Consequently, once the respondent determined that the poles had been rejected, its continued possession of them became unauthorized. The demand for the poles by the appellant and the failure by the respondent to deliver them up to the appellant amounted to the tort of conversion. I find that the respondent is liable for conversion of the appellant’s 127 poles.
51. The next issue for determination is whether the appellant proved that he was entitled to the reliefs sought.
52. The 127 poles were never returned to the appellant and there is no indication by the respondent that they are available for return. Even if they were, it is doubtful that they would be worth anything much given the lapse of time of over ten years. The measure of damages for conversion usually the market value of the goods at the date of conversion, with interest. The appellant pleaded for the cost of 127 poles as KShs 1,781,500/= meaning each pole was worth KShs 14,027.60. He said the 50 rejected poles were worth KShs 270,000/= and that for these, each was worth KShs 5,400/=. He also said in evidence that the cost of a 10m pole was KShs 12,000/=. The respective lengths of the 127 poles were not given. I can only find their cost by getting the average price from that given by the appellant to be KShs 13,000/=.
53. The respondent on its part said that these figures were exaggerated but did not provide what the correct price for the poles was. I find that the appellant’s evidence on the cost of the poles was not challenged. However, the cost of treatment of the poles before they were delivered to REA at that price has to be subtracted. From the invoice dated 1 st October 2013 from the respondent to the appellant for treatment of 308 poles at a total cost of KShs 1,108,900/= it means the average cost of treatment of one pole was KShs 3, 600/=. That would make the average cost per pole without treatment to be KShs 9,400/=. From this, a sum representing the appellant’s profit margin of about 25% has to be subtracted in order to get the approximate cost of each pole which turns out to be KShs 7,000/=.
54. The value of the 127 poles is KShs 7,000/= x 127 = KShs 889,000/=. This is the amount payable by the respondent to the appellant for conversion of his poles.
55. It is not in dispute is that the appellant paid for treatment of 387 poles but only 260 were treated and the respondent was therefore required to account for the balance of the amount since it obviously was not utilized for the intended work. Failure to account for that money would lead to unjust enrichment by the respondent. The appellant testified that he paid a total of KShs 1,228,100/= for treatment of the 387 poles making an average cost of treatment for each pole to be KShs 3,173/=. That means the cost of treatment for the 127 poles was KShs 402,971/=. This amount is refundable by the respondent to the appellant.
56. The appellant’s contention that the respondent’s acts caused him to loss business opportunity to sell 433 poles to REA is unsupported by evidence. His own evidence shows that as at 11 th June 2014 he was delivering poles to the respondent for inspection, approval, grading and treatment. There is no evidence whatsoever to show what caused him to stop the deliveries afterwards. More importantly, he has not shown that he still had the capacity to deliver the poles but that REA blacklisted and stopped him from further delivery. His own evidence was that he had obtained some of the poles from his farm and others from farmers. He should have given evidence of the availability of those poles. Even then, the plaintiff has not pleaded that that the respondent was the sole company available to do the treatment of the poles for delivery to REA so that in the event he had proved that he had the poles available, he would have had no other way of treating them.
57. In any case his own case is that the poles had to be approved, graded and treated first before being delivered to REA. There is evidence that some would not pass the test and so would be rejected. It cannot be the case that all of the alleged 433 would have been approved, graded, treated and delivered to REA.
58. In the circumstances, I find that the plea for loss of business is unfounded and the same is rejected.
59. Consequently, I find that the learned trial magistrate erred in her consideration of the evidence on record and reached an incorrect decision that the appellant had not proved his entire case on a balance of probability. I therefore set aside the said judgment and substitute it with a finding that the appellant proved his case on a balance of probability to the extent that he was entitled to special damages as follows:
a. KShs 889,000/= for conversion.
b. Refund for untreated poles KShs 402,971/=
Total Kshs 1,291,971/=
60. Consequently, judgment is entered for the appellant against the respondent for KShs 1,291,971/= together with interest at court rates from the date of filing suit before the trial court.
61. Given the extent to which the appeal has succeeded, each party will bear its own costs of the appeal as well as before the lower court.
62. Orders accordingly.
ANDAYI W. F.
JUDGE
Written, dated and signed and d elivered on the Virtual platform, Microsoft Teams this 13 th day of August 2026.
In the presence of:
N/A for the Respondent/Applicant.
N/A for the Appellant/Respondent.
Ummu: Court assistant
ANDAYI W. F.
JUDGE
kwale hC CA No. E1336/202417/contract
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E1336 OF 2024
ADRIAN MAMBILI MEJA.................................................................... APPELLANT
VERSUS
WOOD TREATMENT TECHNOLOGY (K) LIMITED………….RESPONDENT
(Being an appeal from the judgment and decree of by Hon. Wendy K. Micheni (CM) on 28 th November 2024 at Nairobi in Milimani Commercial MCCC No. 404 of 2016 delivered on 20 th September 2024)
JUDGMENT
1. The appellant filed an appeal through the memorandum of appeal dated 21 st November 2024 praying for orders that the appeal be allowed, the judgment of the trial court be set aside, the appellant be awarded general damages and special damages in the sum of KShs 5,663,600/=, the costs of the appeal and the trial court be awarded to the appellant with an order that interest on special damages be from the date of filing suit in the trial court and interest on general damages from the date of judgment.
2. The appellant’s case before the trial court was presented through his further amended plaint dated 25 th November 2019, witness statements dated 29 th January 2016 for the plaintiff Adrian Mabili Meja, PW 1 and his witness Gavin Miyuka, PW 2 dated 12 th May 2016 which were adopted as their evidence in chief, and their testimonies in court on 5 th December 2022. The appellant sought general damages, special damages of KShs 5,663,600/= and interest on both for breach of contract and negligence.
3. It was the appellant’s case that he had a contract with the Rural Electrification Authority (REA) to supply it with 820 treated electric power poles at their Awasi site in Kisumu County. For the treatment of the poles, the appellant entered into another contract with the respondent. It was for the respondent to inspect, grade, approve and treat the poles.
4. It was the appellant’s contention that the respondent was to deliver the poles on his behalf to REA since the respondent shares a fence with REA. Further that he delivered 387 poles which the respondent inspected and approved all of them. However, the respondent delivered 260 of the poles to REA which paid him for the same. In spite of the appellant paying for the balance of 127 poles, the respondent, through negligence failed to treat the 127 poles and to deliver them to REA. This occasioned the appellant a loss of KShs 2,053,380/= and a further 454,527/= for treating the poles, 200,000/= for transportation costs and KShs 14,000/= to obtain a movement permit for the poles. Further, the appellant lost an opportunity to sell a further 433 poles worth KShs 8,183,700/= to REA. The appellant thus sued the respondent for special and general damages.
5. PW 2 only said that he transported the poles from the appellant’s farm in Kakamega and delivered them to the respondent at Awasi in nine trips. He did not indicate the total number of poles transported or even per trip.
6. The respondent’s case was presented through its amended statement of defence dated 8 th December 2019, the evidence of George Onyango, DW 1, a director of the defendant as presented in court and through his witness statement date 20 th January 2022.
7. The respondent stated that it is an accredited wood treatment plant and sub-contracted by REA to treat poles on its behalf. That REA conducts regular inspections to ensure that the respondent adheres to the set standards. Further, the respondent treats poles in line with the standards and quality measures set by REA. The respondent cannot therefore purport to allow to be treated at its plant any pole that does not meet the specification of REA.
8. In line with its business of treatment of poles, the respondent agreed to treat some poles delivered by the appellant.
9. The respondent treated the poles that met the required standards by REA and advised the plaintiff that 127 poles were bad and could not be treated as they did not meet standards for processing. That the plaintiff was advised to pick the same and had failed to do so since November 2013 to the time of the case. It was the respondent’s position that by rejecting the said poles it was not negligent nor did it breach any agreement.
10. The respondent denied the appellant’s claim regarding the 127 poles. It stated that the appellant was informed that the 127 poles were bad and could not be treated and was advised to pick them since November 2013 and they continued to incur storage charges at the respondent’s yard.
11. The respondent stated further that the figures quoted by the appellant as losses were exaggerated because according to the respondent the sum of KShs 454,527/= was not paid at all, the total cost for transportation of 387 poles was KShs 140,000/=, the forest permit for transporting 200 poles for one trailer was KShs 2,000/=.
12. Further that the defendant is not in the business of transporting treated poles to REA on behalf of its clients. That the defendant only treats poles and does not supply them to REA.
13. That the total cost for transporting 387 poles was KShs 140,000/- and the alleged KShs 210,000/- was not justified for transporting 127 poles. Further, the forest permit for a single trailer carrying 200 poles was KShs 2000/-. The plaintiff could not therefore seek KShs 14,000/-for transporting 127 (387) poles.
14. The claim for KShs 5,663,600/= was therefore denied in toto and the appellant was out on a fishing expedition for unjust enrichment from the respondent and there was no loss whatsoever occasioned by the respondent to the appellant. Further that if at all, the appellant lost any business with REA, then he was the author of his own misfortune and could not attribute the same to the respondent.
15. The witness said in his testimony that they needed only 387 poles and not 437 poles and that the sum of KShs 1.2 million was for 387 poles.
16. DW 1 said that they treated 260 poles and delivered them to REA as a favour to the appellant and that 127 poles were rejected with 50 being rejected at the initial inspection and 77 in the second batch were rejected.
17. DW 1 further said that he did not communicate to the appellant on the rejection but that the manager who communicated to him was one Pascal, a lady, but DW 1 did not know if he was a witness in the case.
18. After the parties closed their cases, learned counsels filed submissions.
19. The trial court, upon considering the evidence, found that the appellant had not proved his case on a balance of probability and dismissed it with costs.
20. In his appeal the appellant has raised some 12 grounds which are basically arguments in support of the appeal. Such argumentative grounds offend Order 42 Rule 1(2) which provides that grounds of appeal shall be set out without any argument or narrative.
21. The appeal was canvassed by way of written submissions filed by learned counsels for the parties.
22. The Appellant filed submissions 18 th August 2025 and condensed the twelve grounds into five as follows:
i. The trial court’s whole judgment was and is against the weight of the evidence before court.
ii. The trial court grossly misunderstood the whole evidence and relied on principles of law which were inapplicable.
iii. The whole evidence adduced by the parties established that the respondent was in breach of the contract that was between them and the appellant.
iv. The trial court grossly erred in law and fact in failing to award the appellant the amount of special damages which had been specifically pleaded and proved.
v. The trial court grossly erred in law and in fact in failing to award the appellant general damages for breach of contract.
23. Learned counsel further condensed these grounds by arguing grounds (i), (ii), and (iii) together.
24. The respondent on its part filed submissions on 9 th March 2026. It submitted only one issue for determination, that is, whether the appeal is merited.
25. The submissions are considered in the analysis that follows. Learned counsel submits that the appellant failed to prove his case on a balance of probability and therefore this appeal has no merit and should be dismissed with costs.
26. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held that:
“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 demeanor 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)”.
27. I have considered the trial court record as contained in the record of appeal, the grounds of appeal as set out in the memorandum and the submissions by learned counsels for the parties. The issue for determination is whether the learned trial magistrate erred in dismissing the appellant’s suit.
28. There was no dispute on the existence of the contract between the parties and the terms thereof. According to the appellant as contained in his pleadings and evidence, the appellant was to deliver raw electric power poles to the respondent to inspect, grade and approve then deliver to the Rural Electrification Authority (REA). The respondent insisted that the part of delivery to REA was only a gesture of goodwill as its business does not entail the same. The appellant appeared to agree with that issue when he conceded that the respondent was to deliver the poles to REA because they share a fence at their Awasi premises. That part of the contract was verbal. However, in execution, the contract was evidenced by various written notes such as Goods Receive Notes, invoice, among others. So, the contract was both oral and written.
29. There is no dispute that indeed some poles were delivered by the appellant for the respondent to inspect, grade, approve and deliver them to REA.
30. The first point of contention between the parties was how many poles the appellant delivered to the respondent. The appellant insisted that there were 437 poles delivered while the respondent maintained that only 387 were delivered by the appellant. Both parties however agree that 50 poles were rejected outright. The appellant said the reason was that they were undersize.
31. In paragraph 5 of the further amended plaint the appellant pleaded that he “cut from his farm and delivered 437 raw and untreated poles of varying sizes as specified in a table appearing in the plaint to the defendant’s pole grading and treating site at Awasi for the defendant to inspect, approve, grade and treat the same and eventually deliver then to REA.
32. The particulars of the poles, raw and untreated and treated delivered to the defendant and treated are set out in a table under the paragraph. They are in four rows each showing the length of the poles as either 10m, 11m, 12m or 14m, the total number of raw and untreated poles delivered to the defendant and treated as 387, those delivered to REA as 260 and those undelivered as 127.
33. The documents relied upon by both parties which shed light on the issue are Goods Receive Notes for assorted raw power transmission poles from the respondent Wood Treatment Technology Limited to the appellant Adrian Meja. Therefore, on the issue of supply and delivery I find that part of the contract was written. The Goods Receive Notes were as follows:
Date
Quantity
13/9/2013
50
14/9/2013
38
17/9/2013
50
18/9/2013
50
20/9/2013
40
23/9/2013
48
2/10/2013
49
7/10/2013
33
11/6/2014
29
Total
387
34. This evidence of Goods Receive Notes produced by the appellant himself shows that the number of poles delivered to the respondent was 387. The further amended pleading that they were 437 is not supported by any documentary evidence. It appears that the appellant did not have his own delivery note that would have been carried by the transporter, PW 2 and upon delivery of the poles, it be signed by the respondent’s personnel receiving them. In that case, the word of mouth by the appellant that he delivered 437 poles to the respondent cannot displace the written Goods Receive Note issued by the respondent.
35. Learned counsel for the appellant submits that the Goods Receive Notes only showed the raw poles which the respondent accepted as being of the right quality and size to be treated and that the rejected 50 raw poles were not indicated or shown as having been received by the respondent for the reason that they were not going to be treated. The evidence available is that 387 poles were delivered by the appellant to the respondent. The appellant not having produced his own record, or even oral evidence of the alleged delivery of 437 raw poles which then would show that upon delivery, the respondent segregated the acceptable from the unacceptable. There is also no evidence from the appellant that even after the alleged rejection of the poles outright, which he thinks was not proper, he protested to the respondent in spite of the deliveries being made in several trips.
36. One observation that is made from the evidence tendered is that the poles were delivered in nine trips. The maximum number of poles the vehicles carried in any one trip was 50. The appellant stated that the 50 poles rejected were in the first batch. Which was this first batch? Was it a whole lorry or where they various pieces from some of the deliveries?
37. The contention by the appellant that the Goods Receive Notes only captured the poles that would go for treatment is not supported by evidence, for instance of the appellant’s agent who was present or the appellant’s delivery notes and is thus rejected. Here, the appellant had himself to blame for not issuing a delivery note for the respondent to acknowledge how many raw poles had been delivered. I therefore find that the appellant delivered 387 and not 437 raw poles to the respondent.
38. I find it highly probable that this was the first delivery since they were rejected for their short length. Afterwards, the appellant must have adjusted the length to the required size and the subsequent deliveries were of the right lengths and they were accepted. Upon inspection they would then be subjected to approval, grading and then treatment. In that case, it was upon the appellant to prove that the poles then passed all these stages before being delivered to REA.
39. The next issue in contention was how many of these 387 poles were approved, graded and delivered to REA. Again, the appellant does not have evidence of his own on this issue. The respondent on its part producedand how many were rejected. Again, according to the appellant’s own pleading in paragraph 5A the poles delivered were 260. Indeed, the respondent conceded that 260 poles were delivered to REA.
40. Learned counsel’s submissions seem to leave out the aspect of the respondent having to approve the poles before delivery to REA. His submission is that REA had recommended the appellant’s raw poles and he had to have them treated by the respondent and so the appellant entered into a second contract with the respondent who was to grade and treat the raw poles and deliver to REA. This submission, to the extent that it leaves out the aspect of approve as pleaded and testified by the appellant is not complete.
41. The appellant went further in the same paragraph to plead that the respondent failed to deliver 127 treated poles to REA. The respondent on its part pleaded that it treats poles in line with the standards and quality measures set by REA. That the respondent cannot therefore purport to allow to be treated at its plant any pole that does not meet the specification of REA. The appellant having pleaded that the 127 poles were treated, the burden to prove that indeed the poles were so treated was upon him. There was no such evidence tendered by the appellant. In paragraph 5A(c) the plaintiff pleaded under particulars of negligence of the defendant that the defendant had failed to communicate with the plaintiff the fate of his 127 poles (and the rejected 50 poles). He supported that averment with his testimony in court (hand written proceedings) where he said that the respondent failed to account for the 127 poles.
42. The appellant’s case was that the respondent was to inspect, approve, grade and treat the raw poles and deliver to REA. Therefore, if any of the poles were not approved as pleaded by the respondent, they would not proceed to grading and treatment. In fact, the appellant produced another set of delivery notes addressed to Rural Electrification Authority (REA) some bearing his name stamp as shown in the table appearing below.
Date
Quantity
Length (m)
Vehicle number
16/10/2013
21
06
12
14
KAV 349L
21/11/2013
70
10
KBS 670T
26/11/2013
35
11
KAV 349L
23/01/2014
29
43
12
14
KBV 549H/ZD086S
24/03/2014
46
10
10
11
KAV 349L
Total
260
43. Again, these being documents relied upon by the appellant, he cannot run away from them. They are his evidence showing the number of treated poles delivered to REA. They were 260. I find that the appellant failed to prove that the 127 poles were in fact approved and graded for treatment. Therefore, his assertion that the respondent failed to account for 127 treated poles had no basis.
44. However, thus far the appellant had showed that the respondent had not accounted for the 127 poles. The appellant said that the respondent did not inform him of the fate of those poles. In evidence, DW 1 for the respondent said that communication to the appellant that the 127 poles had been rejected was done by one Pascal. Although Pascal was not a witness in the case, the appellant however in his pleadings and evidence that he was aware that the respondent had rejected the first 50 poles. He therefore must have received communication about the rejection of the 50 poles. Therefore, what he was not informed about, as there is no evidence to show otherwise, was the fate of 77 poles.
45. All the same, communication or no communication over the 127 poles, there was no written evidence that the respondent handed back the said poles to the appellant. Granted that part of the contract was oral, DW 1 said that Pascal communicated to the appellant about the rejection. He went further to assert that rejected poles had to be collected within seven days. He was not the one who communicated thee same to the appellant. Evidence that Pascal communicated the same to the appellant is hearsay and inadmissible.
46. I am inclined to believe the appellant’ assertion that no communication was made to him to collect the rejected poles. DW 1 said that they remained at their premises incurring storage charges. Without informing the appellant that the same had been rejected, the appellant could not have been expected to collect them. I therefore find that the rejected poles remained with the respondent all through.
47. The oral contract between the parties did not provide for what would happen to poles that were not fit for delivery to REA. In that case, the respondent cannot be held to have breached any term of the contract.
48. The appellant said that the respondent never informed him of the whereabouts of the poles. That he suspected the respondent delivered them to REA. That assertion of the poles having been delivered to REA is not backed by evidence and I reject it. What I however find in favour of the appellant is that the respondent never explained the whereabouts of the poles and had never made them available to the appellant for his collection. Even in the defence, the respondent did not aver that the poles were available at its yard for the appellant’s collection. It alleged that they would be attracting storage charges but did not counterclaim for the same. There is no indication that the poles were still available for the appellant’s collection and even if they are I do not think they are of any worth.
49. When the respondent determined that the 127 poles had been rejected, it meant the appellant had an immediate right to their possession. The appellant’s vehicles were always going to the respondent’s yard and if the poles were available for return to the appellant, the respondent would have asked the appellant’s agent to take them back in any of the return trips. The appellant said that he demanded for the poles but the respondent never gave them out. The learned trial magistrate found that since the appellant did not produce a letter to show such a demand, then he could not be believed. However, that was not a correct finding because as found earlier the parties were dealing with each other both orally and in writing. The appellant’s evidence that he demanded for the poles was not challenged and I find that he did.
50. Consequently, once the respondent determined that the poles had been rejected, its continued possession of them became unauthorized. The demand for the poles by the appellant and the failure by the respondent to deliver them up to the appellant amounted to the tort of conversion. I find that the respondent is liable for conversion of the appellant’s 127 poles.
51. The next issue for determination is whether the appellant proved that he was entitled to the reliefs sought.
52. The 127 poles were never returned to the appellant and there is no indication by the respondent that they are available for return. Even if they were, it is doubtful that they would be worth anything much given the lapse of time of over ten years. The measure of damages for conversion usually the market value of the goods at the date of conversion, with interest. The appellant pleaded for the cost of 127 poles as KShs 1,781,500/= meaning each pole was worth KShs 14,027.60. He said the 50 rejected poles were worth KShs 270,000/= and that for these, each was worth KShs 5,400/=. He also said in evidence that the cost of a 10m pole was KShs 12,000/=. The respective lengths of the 127 poles were not given. I can only find their cost by getting the average price from that given by the appellant to be KShs 13,000/=.
53. The respondent on its part said that these figures were exaggerated but did not provide what the correct price for the poles was. I find that the appellant’s evidence on the cost of the poles was not challenged. However, the cost of treatment of the poles before they were delivered to REA at that price has to be subtracted. From the invoice dated 1 st October 2013 from the respondent to the appellant for treatment of 308 poles at a total cost of KShs 1,108,900/= it means the average cost of treatment of one pole was KShs 3, 600/=. That would make the average cost per pole without treatment to be KShs 9,400/=. From this, a sum representing the appellant’s profit margin of about 25% has to be subtracted in order to get the approximate cost of each pole which turns out to be KShs 7,000/=.
54. The value of the 127 poles is KShs 7,000/= x 127 = KShs 889,000/=. This is the amount payable by the respondent to the appellant for conversion of his poles.
55. It is not in dispute is that the appellant paid for treatment of 387 poles but only 260 were treated and the respondent was therefore required to account for the balance of the amount since it obviously was not utilized for the intended work. Failure to account for that money would lead to unjust enrichment by the respondent. The appellant testified that he paid a total of KShs 1,228,100/= for treatment of the 387 poles making an average cost of treatment for each pole to be KShs 3,173/=. That means the cost of treatment for the 127 poles was KShs 402,971/=. This amount is refundable by the respondent to the appellant.
56. The appellant’s contention that the respondent’s acts caused him to loss business opportunity to sell 433 poles to REA is unsupported by evidence. His own evidence shows that as at 11 th June 2014 he was delivering poles to the respondent for inspection, approval, grading and treatment. There is no evidence whatsoever to show what caused him to stop the deliveries afterwards. More importantly, he has not shown that he still had the capacity to deliver the poles but that REA blacklisted and stopped him from further delivery. His own evidence was that he had obtained some of the poles from his farm and others from farmers. He should have given evidence of the availability of those poles. Even then, the plaintiff has not pleaded that that the respondent was the sole company available to do the treatment of the poles for delivery to REA so that in the event he had proved that he had the poles available, he would have had no other way of treating them.
57. In any case his own case is that the poles had to be approved, graded and treated first before being delivered to REA. There is evidence that some would not pass the test and so would be rejected. It cannot be the case that all of the alleged 433 would have been approved, graded, treated and delivered to REA.
58. In the circumstances, I find that the plea for loss of business is unfounded and the same is rejected.
59. Consequently, I find that the learned trial magistrate erred in her consideration of the evidence on record and reached an incorrect decision that the appellant had not proved his entire case on a balance of probability. I therefore set aside the said judgment and substitute it with a finding that the appellant proved his case on a balance of probability to the extent that he was entitled to special damages as follows:
a. KShs 889,000/= for conversion.
b. Refund for untreated poles KShs 402,971/=
Total Kshs 1,291,971/=
60. Consequently, judgment is entered for the appellant against the respondent for KShs 1,291,971/= together with interest at court rates from the date of filing suit before the trial court.
61. Given the extent to which the appeal has succeeded, each party will bear its own costs of the appeal as well as before the lower court.
62. Orders accordingly.
ANDAYI W. F.
JUDGE
Written, dated and signed and d elivered on the Virtual platform, Microsoft Teams this 13 th day of August 2026.
In the presence of:
N/A for the Respondent/Applicant.
N/A for the Appellant/Respondent.
Ummu: Court assistant
ANDAYI W. F.
JUDGE
kwale hC CA No. E1336/202417/contract