REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
CIVIL APPEAL NO. E002 OF 2024
(CORAM: HON. CHARLES M. KARIUKI – J)
(Being an appeal from a judgment of Hon. W.C.Waswa(S.R.M) at the Chief Magistrate's Court at Kilgoris, in the Chief Magistrate's Civil Case No. 7 of 2020 delivered on 18 th January, 2024)
AUGUSTINE WILLIAM NYARURI…………………………………………..APPELLANT
Versus
TRANSMARA SUGAR CO. LTD……………………………………………RESPONDENT
JUDGMENT
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) This is a first appeal arising from the judgment of Hon. W.C. Waswa (Senior Resident Magistrate) delivered on 18 th January 2024 in Kilgoris CMCC No. 7 of 2020. The appellant, Augustine William Nyaruri, had instituted a suit against the respondent, Transmara Sugar Company Limited, seeking payment of Kshs. 319,116.98 being proceeds allegedly due from harvested sugarcane, together with costs and interest.
2) Before the trial court, the appellant testified that he entered into a sugarcane farming contract with the respondent and planted sugarcane on two acres of leased land. He stated that upon harvesting the crop, the respondent generated statements and delivery records indicating that he was entitled to Kshs. 319,116.98 after deductions, but failed to remit the said amount despite demand.
3) The respondent filed a statement of defence denying liability and further issued third-party proceedings against persons whom it alleged had been paid the proceeds arising from the harvested sugarcane. The respondent, however, did not call any witness during the hearing.
4) Upon considering the evidence, the learned trial magistrate found that the contract dated 6th August 2014, upon which the appellant's claim was founded, had not been validly executed in accordance with Section 3(3) of the Law of Contract Act and Section 37 of the Companies Act. Consequently, the suit was dismissed with costs.
5) Aggrieved by that decision, the appellant lodged the present appeal challenging the finding that the contract was invalid and contending that the trial court failed to evaluate the evidence and the applicable law properly.
6) As this is a first appeal, this Court is obligated to reconsider and re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This principle was articulated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and reiterated in Peters v Sunday Post Ltd [1958] EA 424.
B. Grounds of appeal.
7) The appellant, dissatisfied with the trial court’s decision, filed an appeal to this Court vide a memorandum of appeal filed on 1 st February 2024.
8) The grounds of appeal assert, inter alia, that:
1. The learned trial magistrate erred in law and fact in dismissing the appellant's case without taking into consideration that the plaintiff's evidence was not controverted in any way by the respondent.
2. That the learned trial magistrate erred in law and in fact in dismissing the appellant's case based on the ground that there was no valid contract without minding that the appellant had a valid contract with the respondent, duly executed.
3. That the learned trial magistrate erred in law and in fact in dismissing the appellant's case because the contract was not properly executed without appreciating that the manager was entitled to sign the said contract on behalf of the defendant in the presence of witnesses and not the Director as indicated by the court in the judgment.
4. The learned trial magistrate erred in law and in fact by misapprehending the law of contract in this case, which led to the unlawful judgment.
5. That the learned trial magistrate failed to take into account and/or consider that the respondent did not do their submissions for consideration, though given an opportunity, leading to an erroneous conclusion and findings by the court.
6. That the learned trial magistrate erred in law and fact in awarding the costs to the respondent without any basis.
9) Consequently, the appellant prays that this Court allow the appeal, set aside, quash, or vary the judgment delivered on 18 th January 2024, enter judgment in his favour, and award him the costs of the appeal.
C. Directions of the court.
10) The appeal was canvassed by way of written submissions.
D. THE PARTIES' SUBMISSIONS
i. The Appellant’s Submissions
11) The appellant submits that the trial court erred in dismissing his claim despite the evidence adduced before it establishing the existence of a valid contractual relationship between the parties and the respondent having failed to tender any evidence in rebuttal. Counsel argues that the appellant proved his case on a balance of probabilities by producing the sugarcane farming contract, quarry sheet, statement of account, delivery receipts, and demand notice, all of which demonstrated that the respondent harvested the appellant’s sugarcane and computed the net proceeds payable to him at Kshs. 319,116.98.
12) It is submitted that the trial magistrate wrongly concluded that the contract dated 6 th August 2014 was invalid for want of execution by a director of the respondent company. According to the appellant, the contract was prepared by the respondent itself and bore the respondent’s official stamp and signatures. Counsel points out that the Agricultural Manager and another respondent representative, identified as TSCL, signed the contract, while the appellant and his witnesses also appended their signatures. The appellant therefore contends that the respondent's authorised representatives duly executed the contract and that there is no legal requirement that a director sign a contract to be enforceable.
13) The appellant further submits that the trial court misapprehended the evidence on record by failing to appreciate that the respondent had acted upon the contract by providing farm inputs, harvesting the sugarcane, transporting it to its factory, and subsequently preparing statements and receipts showing the amount payable to the appellant. Counsel argues that the respondent could not have processed the appellant’s cane, generated delivery receipts, and prepared statements of account if there had been no valid contractual relationship between the parties. It is therefore maintained that the respondent’s conduct amounted to an acknowledgement of the validity of the contract.
14) The appellant also emphasises that the respondent did not call any witnesses during the trial. As a result, the appellant’s testimony and documentary evidence remained unchallenged and uncontroverted. Counsel submits that the issues relied upon by the trial court to invalidate the contract were not raised during cross-examination and were not supported by any evidence from the respondent. The appellant argues that the trial court improperly relied on matters not pleaded or proved, thereby reaching an erroneous conclusion.
15) In support of the argument that uncontroverted evidence ought to be accepted by the court unless inherently incredible, reliance is placed on the principle stated in Trust Bank Limited v Paramount Universal Bank Limited & 2 Others [2009] eKLR, where the Court of Appeal observed that evidence that is not challenged by the opposing party generally stands admitted. The appellant further invokes the well-established principle that parties are bound by their pleadings and evidence and that courts should determine disputes based on issues raised by the parties rather than on extraneous considerations.
16) The appellant therefore urges the appellate court, as a first appellate court, to re-evaluate the evidence afresh in accordance with the principles set out in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the former East African Court of Appeal held that a first appellate court is under a duty to reconsider and re-evaluate the evidence and draw its own conclusions while bearing in mind that it did not have the opportunity of seeing and hearing the witnesses testify.
17) Based on the foregoing, the appellant prays that the appeal be allowed, the judgment and decree of the subordinate court be set aside, and judgment be entered in his favour for Kshs. 319,116.98 together with costs and interest, and that the respondent be condemned to pay the costs of both the trial and the appeal.
ii. The Respondent’s Submissions
18) The respondent submits that the appeal is devoid of merit and that the learned trial magistrate properly dismissed the appellant’s suit after correctly finding that there was no valid and enforceable contract between the parties. According to the respondent, the central issue in the appeal concerns the validity of the sugarcane farming contract dated 6th August 2014, which formed the basis of the appellant’s claim for Kshs. 319,116.98 allegedly arising from the harvesting of sugarcane from LR No. Transmara/Mapashi/27.
19) The respondent argues that the trial court correctly applied Section 3(3) of the Law of Contract Act, Cap. 23 Laws of Kenya, which requires a contract relating to an interest in land to be in writing, signed by all the parties, and for each signature to be attested by a witness present at the time of signing. Counsel submits that a scrutiny of the contract produced as P EXH 4 reveals that it lacked the names, signatures, identity card details, and attestation by witnesses on behalf of the respondent. Consequently, the contract failed to satisfy the mandatory statutory requirements and was therefore unenforceable. In support of this position, reliance is placed on Maisha Investments Limited v Mohamed Hassanali Alimohammadi Jam Mohamed & Another [2019] KEELC 1048 (KLR), where the court held that for a contract concerning the disposition of an interest in land to be enforceable, it must comply with all the requirements set out under Section 3(3) of the Law of Contract Act, including execution by the parties and attestation of their signatures by witnesses.
20) The respondent further submits that the contract was improperly executed because it was allegedly signed by a manager rather than a director of the respondent company. Counsel contends that there was no evidence demonstrating that the manager had authority to bind the company or execute contracts on its behalf. It is argued that the execution of company documents is governed by Section 37 of the Companies Act, which requires a document to be signed either by two authorised signatories or by a director in the presence of a witness who attests the signature. Since the contract was not executed in accordance with these statutory requirements, the respondent maintains that the trial court correctly found it to be unenforceable.
21) To reinforce this argument, the respondent relies on Ram International Limited v Maasai Mara University [2021] KEHC 5147 (KLR), where the court held that a contract that is not properly executed by an authorised officer of a corporate entity is unenforceable. The respondent also cites Chon Jeuk Suk Kim & Another v E. J. Austin & 2 Others [2013] eKLR, in which the Court of Appeal held that where agency and authority to execute a document on behalf of a company are not proved, the document cannot be enforced as a valid contract.
22) On the appellant’s complaint that the respondent did not file submissions before the trial court, the respondent contends that the omission was not fatal and did not affect the legality of the judgment. Counsel argues that submissions do not constitute evidence and cannot substitute for proof of facts. The trial court was entitled to determine the case based on the pleadings, evidence, and exhibits on record. In support of this proposition, reliance is placed on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR, where the Court of Appeal held that submissions cannot take the place of evidence and that courts may determine cases solely based on evidence presented. The respondent also relies on Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR , where the court observed that submissions merely assist the court by highlighting issues for determination and do not form part of the evidence in a case.
23) Regarding the appellant’s challenge to the award of costs, the respondent submits that the trial court properly exercised its discretion under Section 27 of the Civil Procedure Act by awarding costs to the successful party. Counsel argues that the appellant has failed to demonstrate any misdirection, improper exercise of discretion, or other basis upon which the appellate court should interfere with the trial court’s decision on costs.
24) Finally, the respondent submits that the appellant failed to discharge the burden of proof imposed by Sections 107 and 108 of the Evidence Act. It is argued that the appellant did not establish the existence of a valid and enforceable contract capable of supporting the claim for payment. In support of the applicable standard of proof in civil cases, the respondent relies on James Muniu Mucheru v National Bank of Kenya Limited [2019] eKLR, in which the court reiterated that civil claims must be proved on the balance of probabilities. The respondent therefore urges the court to find that the appellant failed to prove his case and to dismiss the appeal with costs.
E. Issues for Determination
25) Having considered the memorandum of appeal, the record of appeal, the judgment of the trial court, and the submissions by both parties, the following issues arise for determination:
i. Whether the sugarcane farming contract dated 6 th August 2014 was valid and enforceable in law.
ii. Whether the appellant proved his claim against the respondent on a balance of probabilities.
iii. Whether the trial court erred in dismissing the suit and awarding costs to the respondent.
F. ANALYSIS AND DETERMINATION
i. Whether the sugarcane farming contract dated 6 th August 2014 was valid and enforceable in law.
26) The appellant's claim was entirely founded upon the contract dated 6 th August 2014. The validity and enforceability of that contract, therefore, formed the cornerstone of the suit before the trial court and remains the central issue in this appeal.
27) Section 3(3) of the Law of Contract Act, Cap 23 Laws of Kenya provides that no suit shall be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all the parties thereto. The signature of each party is attested by a witness present when the contract is signed.
28) The Court of Appeal in Kukal Properties Development Ltd v Tafazzal H. Maloo & 3 Others [1993] eKLR emphasised that a contract falling within the ambit of Section 3(3) of the Law of Contract Act must be properly executed by the parties, failing which it becomes unenforceable.
29) Similarly, in Maisha Investments Limited v Mohamed Hassanali Alimohamed Jammohamed & Another [2019] eKLR, the court held that compliance with the requirements of Section 3(3) is mandatory and that an agreement which the parties do not properly execute cannot be found to be a valid cause of action.
30) The learned trial magistrate found that the contract had not been signed by the farmer on the execution page and further that there was no proper attestation of the respondent's execution. The court also found that the contract had been signed by a manager rather than a director of the company.
31) Having examined the record, this Court notes that the respondent prepared the contract document, issued the contract booklet, supplied inputs, harvested the appellant's sugarcane, and generated delivery receipts and statements showing the amount payable to the appellant. The respondent provided no evidence to dispute these actions.
32) More importantly, the respondent did not call any witness to challenge the authenticity of the contract, deny its execution, dispute the authority of the Agricultural Manager, or explain why it processed and harvested the appellant's crop if indeed no valid contractual relationship existed.
33) The Court of Appeal in Trust Bank Limited v Paramount Universal Bank Ltd & 2 Others [2009] eKLR observed that uncontroverted evidence which is not inherently incredible ought generally to be accepted by the court.
34) The respondent's conduct after the execution of the contract is particularly significant. Having acted upon the contract by facilitating planting, harvesting the sugarcane, and generating statements of account, the respondent cannot readily disown the very document upon which those activities were undertaken.
35) In National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR, the Court of Appeal held that the terms of their contract bind parties unless vitiating factors are demonstrated.
36) Whereas compliance with statutory requirements is important, the evidence on record demonstrates that the parties acted on the contract for several years, and the respondent recognised the appellant as a contracted farmer. No evidence was tendered to show that the Agricultural Manager lacked authority to execute the contract or that the respondent had repudiated the contract.
37) In the circumstances, this Court finds that the learned trial magistrate placed undue emphasis on technical deficiencies in execution while overlooking the substantial evidence demonstrating the existence and performance of the contractual relationship between the parties.
38) Consequently, I find that the appellant established the existence of a valid and enforceable contractual relationship between himself and the respondent.
ii. Whether the appellant proved his claim on a balance of probabilities
39) Sections 107 and 108 of the Evidence Act place the burden of proof upon the party asserting a fact.
40) In Mbuthia Macharia v Annah Mutua & Another [2017] eKLR , the Court of Appeal held that while the legal burden remains constant, the evidential burden shifts depending on the evidence adduced.
41) The appellant produced a farmer query sheet, statement of account, delivery receipts, demand letter, lease agreement, and the contract. The documents showed that sugarcane was harvested and that a sum of Kshs. 319,116.98 was due after deductions.
42) The respondent did not challenge the authenticity of these documents through evidence. Neither did it produce payment records demonstrating that the appellant had been paid or that the proceeds had lawfully been paid to another person.
43) Although the respondent had instituted third-party proceedings, no evidence was led to establish that the appellant's entitlement had been extinguished or that the respondent had discharged its obligations under the contract.
44) In Miller v Minister of Pensions [1947] 2 All ER 372, Lord Denning stated that proof on a balance of probabilities means that a court must find in favour of the party whose version is more probable than not.
45) Upon evaluating the entire record, this Court is satisfied that the appellant discharged his burden of proof and established his claim on a balance of probabilities.
iii. Whether the trial court erred in dismissing the suit and awarding costs to the respondent
46) Having found that the appellant proved the existence of a contractual relationship and established the amount due, it follows that the trial court erred in dismissing the suit.
47) The appellant also challenged the award of costs. Costs ordinarily follow the event pursuant to Section 27 of the Civil Procedure Act unless the court, for good reason, orders otherwise.
48) Since the dismissal of the suit cannot stand, the consequential order on costs must be set aside equally.
49) I further agree with the respondent's submission that written submissions do not constitute evidence. The Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR held that submissions cannot take the place of evidence. However, the absence of submissions by the respondent does not, by itself, determine the outcome of the case.
50) The appeal succeeds not because the respondent failed to file submissions, but because the evidence on record established the appellant's claim on a balance of probabilities.
G. DISPOSITION
i. The appeal is hereby allowed.
ii. The judgment and decree of the Senior Resident Magistrate delivered on 18 th January 2024 in Kilgoris CMCC No. 7 of 2020 are hereby set aside.
iii. Judgment is entered in favour of the appellant against the respondent for the sum of Kshs. 319,116.98.
iv. The appellant shall have interest on the said sum at court rates from the date of filing suit until payment in full.
v. The appellant shall have the costs of the suit before the trial court and the costs of this appeal.
51) Orders accordingly.
DATED, SIGNED, AND DELIVERED AT KILGORIS, THIS 3RD DAY OF JULY, 2026.Top of Form
CHARLES KARIUKI
JUDGE
52) Bottom of Form
Bottom of Form
KILGORIS HCCA NO. E002 OF 2024 Page 13 of 14
IN THE HIGH COURT OF KENYA AT KILGORIS
CIVIL APPEAL NO. E002 OF 2024
(CORAM: HON. CHARLES M. KARIUKI – J)
(Being an appeal from a judgment of Hon. W.C.Waswa(S.R.M) at the Chief Magistrate's Court at Kilgoris, in the Chief Magistrate's Civil Case No. 7 of 2020 delivered on 18 th January, 2024)
AUGUSTINE WILLIAM NYARURI…………………………………………..APPELLANT
Versus
TRANSMARA SUGAR CO. LTD……………………………………………RESPONDENT
JUDGMENT
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) This is a first appeal arising from the judgment of Hon. W.C. Waswa (Senior Resident Magistrate) delivered on 18 th January 2024 in Kilgoris CMCC No. 7 of 2020. The appellant, Augustine William Nyaruri, had instituted a suit against the respondent, Transmara Sugar Company Limited, seeking payment of Kshs. 319,116.98 being proceeds allegedly due from harvested sugarcane, together with costs and interest.
2) Before the trial court, the appellant testified that he entered into a sugarcane farming contract with the respondent and planted sugarcane on two acres of leased land. He stated that upon harvesting the crop, the respondent generated statements and delivery records indicating that he was entitled to Kshs. 319,116.98 after deductions, but failed to remit the said amount despite demand.
3) The respondent filed a statement of defence denying liability and further issued third-party proceedings against persons whom it alleged had been paid the proceeds arising from the harvested sugarcane. The respondent, however, did not call any witness during the hearing.
4) Upon considering the evidence, the learned trial magistrate found that the contract dated 6th August 2014, upon which the appellant's claim was founded, had not been validly executed in accordance with Section 3(3) of the Law of Contract Act and Section 37 of the Companies Act. Consequently, the suit was dismissed with costs.
5) Aggrieved by that decision, the appellant lodged the present appeal challenging the finding that the contract was invalid and contending that the trial court failed to evaluate the evidence and the applicable law properly.
6) As this is a first appeal, this Court is obligated to reconsider and re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This principle was articulated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and reiterated in Peters v Sunday Post Ltd [1958] EA 424.
B. Grounds of appeal.
7) The appellant, dissatisfied with the trial court’s decision, filed an appeal to this Court vide a memorandum of appeal filed on 1 st February 2024.
8) The grounds of appeal assert, inter alia, that:
1. The learned trial magistrate erred in law and fact in dismissing the appellant's case without taking into consideration that the plaintiff's evidence was not controverted in any way by the respondent.
2. That the learned trial magistrate erred in law and in fact in dismissing the appellant's case based on the ground that there was no valid contract without minding that the appellant had a valid contract with the respondent, duly executed.
3. That the learned trial magistrate erred in law and in fact in dismissing the appellant's case because the contract was not properly executed without appreciating that the manager was entitled to sign the said contract on behalf of the defendant in the presence of witnesses and not the Director as indicated by the court in the judgment.
4. The learned trial magistrate erred in law and in fact by misapprehending the law of contract in this case, which led to the unlawful judgment.
5. That the learned trial magistrate failed to take into account and/or consider that the respondent did not do their submissions for consideration, though given an opportunity, leading to an erroneous conclusion and findings by the court.
6. That the learned trial magistrate erred in law and fact in awarding the costs to the respondent without any basis.
9) Consequently, the appellant prays that this Court allow the appeal, set aside, quash, or vary the judgment delivered on 18 th January 2024, enter judgment in his favour, and award him the costs of the appeal.
C. Directions of the court.
10) The appeal was canvassed by way of written submissions.
D. THE PARTIES' SUBMISSIONS
i. The Appellant’s Submissions
11) The appellant submits that the trial court erred in dismissing his claim despite the evidence adduced before it establishing the existence of a valid contractual relationship between the parties and the respondent having failed to tender any evidence in rebuttal. Counsel argues that the appellant proved his case on a balance of probabilities by producing the sugarcane farming contract, quarry sheet, statement of account, delivery receipts, and demand notice, all of which demonstrated that the respondent harvested the appellant’s sugarcane and computed the net proceeds payable to him at Kshs. 319,116.98.
12) It is submitted that the trial magistrate wrongly concluded that the contract dated 6 th August 2014 was invalid for want of execution by a director of the respondent company. According to the appellant, the contract was prepared by the respondent itself and bore the respondent’s official stamp and signatures. Counsel points out that the Agricultural Manager and another respondent representative, identified as TSCL, signed the contract, while the appellant and his witnesses also appended their signatures. The appellant therefore contends that the respondent's authorised representatives duly executed the contract and that there is no legal requirement that a director sign a contract to be enforceable.
13) The appellant further submits that the trial court misapprehended the evidence on record by failing to appreciate that the respondent had acted upon the contract by providing farm inputs, harvesting the sugarcane, transporting it to its factory, and subsequently preparing statements and receipts showing the amount payable to the appellant. Counsel argues that the respondent could not have processed the appellant’s cane, generated delivery receipts, and prepared statements of account if there had been no valid contractual relationship between the parties. It is therefore maintained that the respondent’s conduct amounted to an acknowledgement of the validity of the contract.
14) The appellant also emphasises that the respondent did not call any witnesses during the trial. As a result, the appellant’s testimony and documentary evidence remained unchallenged and uncontroverted. Counsel submits that the issues relied upon by the trial court to invalidate the contract were not raised during cross-examination and were not supported by any evidence from the respondent. The appellant argues that the trial court improperly relied on matters not pleaded or proved, thereby reaching an erroneous conclusion.
15) In support of the argument that uncontroverted evidence ought to be accepted by the court unless inherently incredible, reliance is placed on the principle stated in Trust Bank Limited v Paramount Universal Bank Limited & 2 Others [2009] eKLR, where the Court of Appeal observed that evidence that is not challenged by the opposing party generally stands admitted. The appellant further invokes the well-established principle that parties are bound by their pleadings and evidence and that courts should determine disputes based on issues raised by the parties rather than on extraneous considerations.
16) The appellant therefore urges the appellate court, as a first appellate court, to re-evaluate the evidence afresh in accordance with the principles set out in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the former East African Court of Appeal held that a first appellate court is under a duty to reconsider and re-evaluate the evidence and draw its own conclusions while bearing in mind that it did not have the opportunity of seeing and hearing the witnesses testify.
17) Based on the foregoing, the appellant prays that the appeal be allowed, the judgment and decree of the subordinate court be set aside, and judgment be entered in his favour for Kshs. 319,116.98 together with costs and interest, and that the respondent be condemned to pay the costs of both the trial and the appeal.
ii. The Respondent’s Submissions
18) The respondent submits that the appeal is devoid of merit and that the learned trial magistrate properly dismissed the appellant’s suit after correctly finding that there was no valid and enforceable contract between the parties. According to the respondent, the central issue in the appeal concerns the validity of the sugarcane farming contract dated 6th August 2014, which formed the basis of the appellant’s claim for Kshs. 319,116.98 allegedly arising from the harvesting of sugarcane from LR No. Transmara/Mapashi/27.
19) The respondent argues that the trial court correctly applied Section 3(3) of the Law of Contract Act, Cap. 23 Laws of Kenya, which requires a contract relating to an interest in land to be in writing, signed by all the parties, and for each signature to be attested by a witness present at the time of signing. Counsel submits that a scrutiny of the contract produced as P EXH 4 reveals that it lacked the names, signatures, identity card details, and attestation by witnesses on behalf of the respondent. Consequently, the contract failed to satisfy the mandatory statutory requirements and was therefore unenforceable. In support of this position, reliance is placed on Maisha Investments Limited v Mohamed Hassanali Alimohammadi Jam Mohamed & Another [2019] KEELC 1048 (KLR), where the court held that for a contract concerning the disposition of an interest in land to be enforceable, it must comply with all the requirements set out under Section 3(3) of the Law of Contract Act, including execution by the parties and attestation of their signatures by witnesses.
20) The respondent further submits that the contract was improperly executed because it was allegedly signed by a manager rather than a director of the respondent company. Counsel contends that there was no evidence demonstrating that the manager had authority to bind the company or execute contracts on its behalf. It is argued that the execution of company documents is governed by Section 37 of the Companies Act, which requires a document to be signed either by two authorised signatories or by a director in the presence of a witness who attests the signature. Since the contract was not executed in accordance with these statutory requirements, the respondent maintains that the trial court correctly found it to be unenforceable.
21) To reinforce this argument, the respondent relies on Ram International Limited v Maasai Mara University [2021] KEHC 5147 (KLR), where the court held that a contract that is not properly executed by an authorised officer of a corporate entity is unenforceable. The respondent also cites Chon Jeuk Suk Kim & Another v E. J. Austin & 2 Others [2013] eKLR, in which the Court of Appeal held that where agency and authority to execute a document on behalf of a company are not proved, the document cannot be enforced as a valid contract.
22) On the appellant’s complaint that the respondent did not file submissions before the trial court, the respondent contends that the omission was not fatal and did not affect the legality of the judgment. Counsel argues that submissions do not constitute evidence and cannot substitute for proof of facts. The trial court was entitled to determine the case based on the pleadings, evidence, and exhibits on record. In support of this proposition, reliance is placed on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR, where the Court of Appeal held that submissions cannot take the place of evidence and that courts may determine cases solely based on evidence presented. The respondent also relies on Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR , where the court observed that submissions merely assist the court by highlighting issues for determination and do not form part of the evidence in a case.
23) Regarding the appellant’s challenge to the award of costs, the respondent submits that the trial court properly exercised its discretion under Section 27 of the Civil Procedure Act by awarding costs to the successful party. Counsel argues that the appellant has failed to demonstrate any misdirection, improper exercise of discretion, or other basis upon which the appellate court should interfere with the trial court’s decision on costs.
24) Finally, the respondent submits that the appellant failed to discharge the burden of proof imposed by Sections 107 and 108 of the Evidence Act. It is argued that the appellant did not establish the existence of a valid and enforceable contract capable of supporting the claim for payment. In support of the applicable standard of proof in civil cases, the respondent relies on James Muniu Mucheru v National Bank of Kenya Limited [2019] eKLR, in which the court reiterated that civil claims must be proved on the balance of probabilities. The respondent therefore urges the court to find that the appellant failed to prove his case and to dismiss the appeal with costs.
E. Issues for Determination
25) Having considered the memorandum of appeal, the record of appeal, the judgment of the trial court, and the submissions by both parties, the following issues arise for determination:
i. Whether the sugarcane farming contract dated 6 th August 2014 was valid and enforceable in law.
ii. Whether the appellant proved his claim against the respondent on a balance of probabilities.
iii. Whether the trial court erred in dismissing the suit and awarding costs to the respondent.
F. ANALYSIS AND DETERMINATION
i. Whether the sugarcane farming contract dated 6 th August 2014 was valid and enforceable in law.
26) The appellant's claim was entirely founded upon the contract dated 6 th August 2014. The validity and enforceability of that contract, therefore, formed the cornerstone of the suit before the trial court and remains the central issue in this appeal.
27) Section 3(3) of the Law of Contract Act, Cap 23 Laws of Kenya provides that no suit shall be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all the parties thereto. The signature of each party is attested by a witness present when the contract is signed.
28) The Court of Appeal in Kukal Properties Development Ltd v Tafazzal H. Maloo & 3 Others [1993] eKLR emphasised that a contract falling within the ambit of Section 3(3) of the Law of Contract Act must be properly executed by the parties, failing which it becomes unenforceable.
29) Similarly, in Maisha Investments Limited v Mohamed Hassanali Alimohamed Jammohamed & Another [2019] eKLR, the court held that compliance with the requirements of Section 3(3) is mandatory and that an agreement which the parties do not properly execute cannot be found to be a valid cause of action.
30) The learned trial magistrate found that the contract had not been signed by the farmer on the execution page and further that there was no proper attestation of the respondent's execution. The court also found that the contract had been signed by a manager rather than a director of the company.
31) Having examined the record, this Court notes that the respondent prepared the contract document, issued the contract booklet, supplied inputs, harvested the appellant's sugarcane, and generated delivery receipts and statements showing the amount payable to the appellant. The respondent provided no evidence to dispute these actions.
32) More importantly, the respondent did not call any witness to challenge the authenticity of the contract, deny its execution, dispute the authority of the Agricultural Manager, or explain why it processed and harvested the appellant's crop if indeed no valid contractual relationship existed.
33) The Court of Appeal in Trust Bank Limited v Paramount Universal Bank Ltd & 2 Others [2009] eKLR observed that uncontroverted evidence which is not inherently incredible ought generally to be accepted by the court.
34) The respondent's conduct after the execution of the contract is particularly significant. Having acted upon the contract by facilitating planting, harvesting the sugarcane, and generating statements of account, the respondent cannot readily disown the very document upon which those activities were undertaken.
35) In National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR, the Court of Appeal held that the terms of their contract bind parties unless vitiating factors are demonstrated.
36) Whereas compliance with statutory requirements is important, the evidence on record demonstrates that the parties acted on the contract for several years, and the respondent recognised the appellant as a contracted farmer. No evidence was tendered to show that the Agricultural Manager lacked authority to execute the contract or that the respondent had repudiated the contract.
37) In the circumstances, this Court finds that the learned trial magistrate placed undue emphasis on technical deficiencies in execution while overlooking the substantial evidence demonstrating the existence and performance of the contractual relationship between the parties.
38) Consequently, I find that the appellant established the existence of a valid and enforceable contractual relationship between himself and the respondent.
ii. Whether the appellant proved his claim on a balance of probabilities
39) Sections 107 and 108 of the Evidence Act place the burden of proof upon the party asserting a fact.
40) In Mbuthia Macharia v Annah Mutua & Another [2017] eKLR , the Court of Appeal held that while the legal burden remains constant, the evidential burden shifts depending on the evidence adduced.
41) The appellant produced a farmer query sheet, statement of account, delivery receipts, demand letter, lease agreement, and the contract. The documents showed that sugarcane was harvested and that a sum of Kshs. 319,116.98 was due after deductions.
42) The respondent did not challenge the authenticity of these documents through evidence. Neither did it produce payment records demonstrating that the appellant had been paid or that the proceeds had lawfully been paid to another person.
43) Although the respondent had instituted third-party proceedings, no evidence was led to establish that the appellant's entitlement had been extinguished or that the respondent had discharged its obligations under the contract.
44) In Miller v Minister of Pensions [1947] 2 All ER 372, Lord Denning stated that proof on a balance of probabilities means that a court must find in favour of the party whose version is more probable than not.
45) Upon evaluating the entire record, this Court is satisfied that the appellant discharged his burden of proof and established his claim on a balance of probabilities.
iii. Whether the trial court erred in dismissing the suit and awarding costs to the respondent
46) Having found that the appellant proved the existence of a contractual relationship and established the amount due, it follows that the trial court erred in dismissing the suit.
47) The appellant also challenged the award of costs. Costs ordinarily follow the event pursuant to Section 27 of the Civil Procedure Act unless the court, for good reason, orders otherwise.
48) Since the dismissal of the suit cannot stand, the consequential order on costs must be set aside equally.
49) I further agree with the respondent's submission that written submissions do not constitute evidence. The Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR held that submissions cannot take the place of evidence. However, the absence of submissions by the respondent does not, by itself, determine the outcome of the case.
50) The appeal succeeds not because the respondent failed to file submissions, but because the evidence on record established the appellant's claim on a balance of probabilities.
G. DISPOSITION
i. The appeal is hereby allowed.
ii. The judgment and decree of the Senior Resident Magistrate delivered on 18 th January 2024 in Kilgoris CMCC No. 7 of 2020 are hereby set aside.
iii. Judgment is entered in favour of the appellant against the respondent for the sum of Kshs. 319,116.98.
iv. The appellant shall have interest on the said sum at court rates from the date of filing suit until payment in full.
v. The appellant shall have the costs of the suit before the trial court and the costs of this appeal.
51) Orders accordingly.
DATED, SIGNED, AND DELIVERED AT KILGORIS, THIS 3RD DAY OF JULY, 2026.Top of Form
CHARLES KARIUKI
JUDGE
52) Bottom of Form
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KILGORIS HCCA NO. E002 OF 2024 Page 13 of 14