Background
1. This is an appeal from the lower court's decision in the Milimani SCCCOM No. E8846 of 2024 in which the court on 6th February 2024 rendered its judgment in favour of the Respondent, allowing his claim for Kshs. 500,500/= against the Appellant.
2. The background of the matter is that sometime in the year 2022, the Appellant and the Respondent had an oral construction agreement in which the Respondent alleged that he was to order for construction materials from third-party suppliers on behalf of the Appellant.
3. The dispute in the lower court was whether the payment to the third-party suppliers was to be made by the Respondent on behalf of the Appellant who would then reimburse him, or, whether the payments to the third party-suppliers were to be made directly by the Appellant, upon the Respondent furnishing the Appellant with the requisite invoices.
4. In his Statement of Claim before the lower court, the Respondent alleged that the agreement between the parties provided that the Respondent was to order the goods from third-party suppliers and pay for the same on behalf of the Appellant, who was then to reimburse him for the costs incurred. That relying on the terms of the agreement, he paid the third-party suppliers a sum of Kshs. 500,500/=, which the Appellant declined to reimburse, hence the suit in the lower court.
5. In his Response to the Statement of Claim, the Appellant, while admitting the existence of the agreement between the parties, took the position that the payments were to be made directly to third-party suppliers by the Appellant upon the Respondent supplying the requisite ETR invoices from such suppliers. That while the Respondent claims to have paid a sum of Kshs. 500,500/= to the said suppliers, two of those suppliers demanded from the Appellant a sum of Kshs. 463,000/=.
6. On 6th February 2024, the trial court, after hearing and evaluating the evidence on record rendered its judgment in favour of the Respondent, which judgment and decree are now the subject of this appeal herein.
The Appeal
7. The Appellant being dissatisfied with the judgment and decree of the trial court preferred an appeal before this court vide a Memorandum of Appeal dated 4th March, 2024 on the grounds that; -
i. The Learned Magistrate erred in fact and law by misconstruing the evidence on record and thereby arrived at the wrong conclusion particularly in holding that the Appellant owes the Respondent Kshs. 500,500/=.
ii. The Respondent failed to prove his case on balance of probabilities.
iii. The Learned Magistrate’s decision totally ignored the evidence and averments presented by the Appellant.
8. The appeal canvassed by way of written submissions. The Appellant’s submissions are dated 4th September 2024 while the Respondent did not file any submissions in this matter. In the circumstances, this appeal will be decided based on the Appellant’s submissions herein and the record of appeal.
Appellant’s submissions
9. First, the Appellant submitted that the renovation works agreement in question was essentially between the Respondent and an entity called Bendera Bendera Limited and not with the Appellant in his personal capacity. According to the Appellant, he was merely acting on behalf of the company, and that the Respondent was fully aware of the same.
10. The Appellant submitted that the agreement was to the effect that the Respondent would source for materials and make orders on weekly credit terms with the suppliers after which the Respondent would furnish the Appellant with Valid ETR receipts and invoices of the payments done. The Appellant maintained that the payments for the goods were to be made by him directly to the suppliers, and not through the Respondent as alleged in the Statement of Claim.
11. Citing the case of Dormakaba Limited v Arcitectural Supplies Kenya Limited (Civil Suit 136 of 2020) [2021] KEHC 210 (KLR) (Commercial and Tax) (10 November 2021) (Judgment), the Appellant submitted that there was no valid contract between him and the Respondent authorizing the Respondent to pay the third-party suppliers on behalf of the Appellant.
12. It was further the Appellant’s submissions that the Respondent’s allegation that he was paying the suppliers on behalf of the Appellant was not supported by the evidence on record since evidence on record reveals that two of those suppliers, through their respective letters of demand on 24th & 25th November 2022, demanded from the Appellant a total sum of Kshs. 463,000/= in respect of the materials supplied in the project.
13. According to the Appellant, from the demand letters from the two suppliers, the amount owing was Kshs. 463,000/- and not the Kshs. 500,500/= which the Respondent claimed in his Statement of Claim.
14. The Appellant therefore maintained that there was a need for reconciliation of accounts to explain where the difference (Kshs. 37,500/-) is coming from. The Appellant asserted that he was only aware of the Kshs. 463,000/- and not the Kshs. 500,000/= demanded by the Respondent.
15. The Appellant therefore urged this court to allow this appeal with costs and set aside the judgment by the lower court in its entirety.
Analysis and Determination
16. This is an appeal emanating from the Small Claims Court. Section 38 of the Small Claims Court Act which clothes this court with jurisdiction provides as follows in relation to appeals from that court; -
“(1)A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.”
17. It therefore follows that in appeals originating from the Small Claims Court to this court can only on the points of law in terms of Section 38(1) of the Small Claims Act. consequently, this court cannot, in appeals emanating from the Small Claims Court, entertain an invitation to interfere with the factual findings of the trial court.
18. The duty and jurisdiction of this court when dealing with an appeal from Small Claims Court is comparable to that of the Court of Appeal when dealing with a matter on a second appeal. In Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR the Court of Appeal, distinguishing between matters of law and matters of fact stated as follows: -
“First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyse it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of a retrial and facts must be revisited and analysed a fresh, - see Selle and Another vs. Associated Motor Boat Company Ltd and Others (1968) EA 123. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.”
19. Again, in Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR the Court of Appeal further clarified that where a right of appeal is confined to questions of law only, an appellate court is duty bound to accept the findings of fact by the lower court. That it should not interfere with the findings of the trial on the factual issues unless it is apparent that, based on the evidence on record, no reasonable tribunal or court could have reached the same conclusion, in which case, the holding or decision would be bad in law and therefore qualify to be reviewed on a second appeal. The court stated as follows; -
“This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina versus Mugiria [1983] KLR 78, Kenya Breweries Ltd versus Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another versus Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. See also the English case of Martin versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 where in, it was held inter alia that, where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court (s) and resist the temptation to treat findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.”
20. Before delving into the substantive questions as framed by the Appellant in its memorandum of appeal, it is imperative for this court to first consider whether or not the issues raised and framed in the memorandum of appeal are matters of law and therefore falls within the jurisdiction of this court bestowed under section 38 of the Small Claims Act.
21. I have perused the grounds of appeal as presented by the Appellant. I note that the major complaint by the Appellant is that the trial court erred in law in failing to appreciate that the Respondent did not prove the existence of a contract between him and the Respondent allowing the Respondent to pay the third-party suppliers on his behalf. That further, the Respondent failed to prove that the amount outstanding was Kshs. 500,5000/= as per the Statement of Claim and not Kshs. 463,000/- as demanded by the suppliers.
22. Burden of proof is a legal concept which in the Kenyan legal system is generally anchored under Sections 107, 108 and 109 of the Evidence Act Cap. 80 Laws of Kenya. In the case of Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) Mativo J (as he then was) stated the following regarding the burden of proof; -
“26. “Burden of Proof” is a legal term used to assign evidentiary responsibilities to parties in litigation. The party that carries the burden of proof must produce evidence to meet a threshold or “standard” in order to prove their claim. If a party fails to meet their burden of proof, their claim will fail. The general rule in civil cases is that the party who has the legal burden also has the evidential burden. If the Plaintiff does not discharge this legal burden, then the Plaintiff’s claim will fail. In civil suits, the plaintiff bears the burden of proof that the defendant's action or inaction caused injury to the Plaintiff, and the defendant bears the burden of proving an affirmative defense. If the claimant fails to discharge the burden of proof to prove its case, the claim will be dismissed. If, however the claimant does adduce some evidence and discharges the burden of proof so as to prove its own case, it is for the defendant to adduce evidence to counter that evidence of proof of the alleged facts. If after weighing the evidence in respect of any particular allegation of fact, the court decides whether the (1) the claimant has proved the fact, (2) the defendant has proved the fact, or (3) neither party has proved the fact.”
23. In the premises, I therefore find and hold that the question of shifting of the burden of proof as raised by the Appellant in the instant appeal is clearly one of law and therefore fits within the ambit of section 38 (1) of the Small Claims Court Act. Consequently, this court has jurisdiction to entertain this appeal.
24. Having established that this court has jurisdiction to entertain this appeal, I will then proceed and examine the substance of the appeal with a view of establishing whether trial court erred in failing in upholding the Respondent’s claim against the Appellant.
25. Having carefully considered the appellant’s appeal, the grounds relied upon, the written submissions and the authorities relied upon. I find that two issues condensing for determination which are;
i. Whether the trial court considered the evidence tendered?
ii. Whether the Respondent proved his case against the Appellant on a balance of probability.
26. This court will not normally interfere with the exercise of discretion by court unless it is proved that the same was as a result of wrong interpretation of principles of law thereby arriving at a wrong conclusion. In the case of Mbogo & Another vs Shah [1968] E.A. 93 the court stated that an appellate court should not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision was clearly wrong because it had misdirected itself or because it had acted on matters on which it should not have acted.
27. On the issue of whether the trial court considered the evidence tendered, this court has evaluated the record and the evidence and it is my considered view that the trial court cannot be faulted for not having considered the evidence tendered. Again, matters of evidence are matters of facts which this court has no jurisdiction to venture into.
28. On the issue of whether the Respondent proved his case against the Appellant on a balance of probabilities, it is an established principle of law that whoever lays a claim before the court against another has the burden to prove it. Sections 107, 108 and 109 of the Evidence Act are unequivocal on this and provide as follows: -
“107. Burden of proof.
(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
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person
108. Incidence of burden.
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
109. Proof of a particular fact.
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
29. The burden of proof was elaborated in the case of Hellen Wangari Wangechi vs Carumera Muthoni Gathua (2015) eKLR, where Mativo J (as he then was) stated that as follows; -
“In my view, the reason for this standard is that in some cases, the question of the probability or improbability of an action occurring is an important consideration to be taken into account in deciding whether that particular event had actually taken place or not. It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. The standard of proof, in essence can loosely be defined as the quantum of evidence that must be presented before a court before a fact can be said to exist or not exist.”
30. In the instant appeal, the Appellant alleges that the trial court erred in by misconstruing the evidence on record and thereby arrived at the wrong conclusion and that the Respondent failed to prove his case against the Respondent on a balance of probability.
31. It is clear from the record that the Appellant in his defence admitted having entered into a contractual agreement with the Respondent, that the Respondent would make orders on weekly credit terms with the suppliers after which the Appellant would forward the amount to be paid and the Respondent would provide valid invoice and ETR receipts. In his submissions, the Appellant submitted his willingness to settle the debt but it was not clear who to pay between the Respondent and the suppliers.
32. The Appellant adopts a similar position in his written submissions. For instance, he submits that the Appellant had not refused to pay Kshs. 463,000/= that owes as per the demand letter from Fairview General Hardware and Ambex Hardware and paints but his only concern is that the Court directed that he pays the Respondent as opposed to the suppliers.
33. The Respondent in my view adduced evidence in support of the oral contract between him and the Appellant. The evidence in not controverted by the Appellant and in fact the Appellant confirms that position.
34. In my considered view, there was no single evidence adduced by the Appellant that he entered into a contract with the Suppliers. The contract was between the Appellant and the Respondent and furthermore, it is the Respondent who sourced for the materials from the suppliers. Failure to pay by the Appellant amounted to breach of contract and the Respondent is entitled to a remedy. It is in my view that the Respondent proved his case on a balance of probabilities to the required standard.
35. Before I make my final determination, it is important to note that the email address quoted in the affidavit of service dated 4th March, 2024 differs with the one provided in the pleadings before the trial court. Perhaps that explains the absence of the Respondent in these proceedings.
36. For the reasons set out above, the appeal herein fails and the same is hereby dismissed.
37. No orders as to costs since the Respondent did not participate in this appeal.
38. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT
THIS 19TH DAY OF DECEMBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant