(Appeal from the Judgment and decree of Hon. Irene Kabuteh, Resident Magistrate, delivered on 3 rd April, 2024 in Kitale Small Claims Court SCCOM Number E015 of 2020)
JUDGMENT
Brief facts
1. This appeal arises from the judgment of Kitale Small Claims Court SCOMM Number E015 of 2020, Andrew Githinji Muna vs Beatrice Akello Mboya, whereby the trial court allowed the Respondent’s suit against the Appellant.
2. The Respondents pleaded that on the 10 th November, 2022 she supplied 130 bags of maize to the Respondent at an agreed consideration of Kshs. 6,500.00 per bag thereby making the total consideration of 845,000.00 which the Appellant had promised to pay within 7 days but ended up not paying the said monies
3. It was further the Respondent’s case that the Appellant was later charged with obtaining money under false pretenses vide Kitale Criminal Case Number 3603 of 2023 and was released at a bond of Kshs. 200,00000. The Respondent pleaded that a judgement in the sum of Kshs. 845,000/= be entered against the Appellant with costs and interest.
4. The Appellant filed his response to statement of claim in which he impleaded that he did not owe the Respondent any money and that he was given a contract by the county government of Trans – Nzoia to supply maize and was issued with an LPO and since she did not have maize she asked the Respondent to supply using the LPO which has not been paid.
5. Judgement was entered against the Appellant and being dissatisfied with the court’s decision, the appellant lodged this appeal citing 6 grounds of appeal as follows: -
1) The learned trial magistrate erred in law and in fact in finding and holding that the invoice produced by the Appellant was equivalent to a note of the terms of sale between the claimant and the Respondent, yet the same was not valid.
2) The learned trial magistrate erred in law and in fact in finding and holding that there was a valid contract between the Appellant and the Respondent yet there was none.
3) That the learned trial magistrate erred in law by failing to scrutinize the invoice to determine its authenticity.
4) The learned trial magistrate fully relied on evidence and submissions by the Respondent and failed to analyze the law, evidence, and submissions supplied by the Appellant so as to arrive at a fair conclusion.
5) The learned magistrate erred in law and in fact in shifting the evidential burden of proof to the Appellant, ignoring the fact that the legal and evidential burden lay with the Respondent who failed to discharge the same.
6) That the findings of the learned trial magistrate were against the weight of available evidence.
6. The appeal was canvassed by way of written submissions which I have considered. From the pleadings and submissions, I find that the following issues arise for determination: -
1) Whether there existed a contract between the Appellant and the Respondent.
2) Whether the Appeal is meritorious.
Analysis & Determination
7. This is an appeal from the Small Claims Court which is established undersection 4(1) of the Small Claims Court Act. Section 38 of the said Act provides for appeals. It states as follows:
“Any person aggrieved by the decision or an order of the court may appeal against the decision or order to the High Court on matters of Law”.
8. It is apparent that the right of appeal from a decision of the said court is limited to matters of law. In Kitui Flour Mills Limited v Kirimi & another (Civil Appeal E172 of 2023) [2024] KEHC 420 the court examined the said provision and held as follows;
“It is trite that an appeal on a matter of law includes the inquiry whether the conclusions of the trial court are sound on the evidence availed before it and, therefore, with respect to counsel for the respondents, this involves the re-evaluation of the evidence. In the very decision cited by Counsel for the Respondents, Peter Gichuki King'ara v IEBC & 2 Others[2014]eKLR , the Court of Appeal (Visram, Koome (as she then was) & Odek, JJ.A.) where after considering the authorities held “Having established that we have jurisdiction to determine only issues of law as per the provisions of Section 85A of the Elections Act, to us the whole question of whether the trial Judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence with of course the usual caveat, that we did not see the witnesses demeanor is an issue of law.” [emphasis added]
9. The said provision was also addressed by the High court in Wanjiru vs Kiilu (2024) KEHC 8881 (KLR ) where it was held as follows:
“It therefore follows that appeals originating from the Small Claims Court to this court can only be on points of law. Consequently, this court cannot, in appeals emanating from that Court, entertain an invitation to interfere with the factual findings of the trial court. The duty of this court when dealing with such appeals, is therefore equivalent to that of the Court of Appeal in its capacity as a second appellate court. In Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR the Court of Appeal distinguished between matters of law and matters of fact and stated that: “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 analyze 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 analyzed 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.”
10. Also, 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 of the lower court. The appellate Court should not interfere with the decision of the trial court on the factual issues ‘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’. The court stated that;
“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] KLR78, 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 wherein, 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.”
11. Applying the above decisions to the instant appeal, it is therefore clear that when dealing with this appeal, this court will only confine itself to the issues of law raised in the Memorandum of Appeal.
12. On the first issue it is trite that there has to be evidence of an existing valid and enforceable contract between the Appellant and the Respondent. The Appellant’s contention is that there was no contract between the parties while the Respondent maintains that she supplied the Appellant with 130 bags of maize at an agreed price of Kshs. 6,500.00 per bag which was to be payable within seven days.
13. It is trite that a contract need not necessarily be in writing. A contract may be oral, provided that the essential elements of a valid contract are established. In William Muthee Muthami v Bank of Baroda [2014] eKLR , the Court of Appeal stated that for a contract to be valid and enforceable, there must be an offer, acceptance and consideration. The absence of a written agreement is therefore not of itself sufficient to invalidate an otherwise valid contract.
14. Further, in Ali Abdi Mohammed v Kenya Shell & Company Limited [2017] eKLR , the Court of Appeal recognized that a contract may arise not only through express words but also from the conduct of the parties. The court must therefore consider the evidence as a whole and determine whether the parties by their words or conduct, demonstrated an intention to create legal relations.
15. In the present case, the Respondent’s case before the trial court was that she supplied the Appellant with 130 bags of maize at Kshs. 6,500.00 per bag giving a total value of Kshs. 845,000.00 and that the Appellant undertook to make payment within seven days.
16. The Court also notes that the Respondent relied on the invoice as evidence of the transaction. The Appellant challenged the authenticity and validity of the invoice and contended that it did not constitute a contract between the parties.
17. It is my considered view that the production of an invoice does not necessarily establish the existence of a contract. However, the Court is under an obligation to investigate the circumstances upon which the said invoice was generated and whether it was accepted by the Appellant and if the goods were delivered and received by and on behalf of the Appellant and lastly whether there was an agreement as to the price and the time for payment.
18. The burden of proving the existence of the alleged contract lay in the first instance upon the Respondent as demonstrated by Section 107(1) of the Evidence Act , which provides that whoever desires a court to give judgment as to a legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Section 108 further places the burden on the person who would fail if no evidence at all were given on either.
19. To this end I am of the considered view that the Respondent was therefore required to establish on a balance of probabilities and not only that there was a transaction involving maize but also that there was an agreement between herself and the Appellant.
20. I have also read the Respondent’s response to the statement of claim which is also significant and the evidence tendered in court by both parties during the hearing of the main suit and she did not deny the existence or knowledge of the transaction. She testified that there had been contracted by the County Government of Homa Bay to supply maize and she had requested the Respondent to supply the maize to Kogolo maize milling Plant.
21. The said evidence in my considered view amounted to an acknowledgment of the underlying transaction involving the supply of maize, although the Appellant disputed personal liability for payment but it was delivered based on her instructions.
22. In Attorney General v Kabuito Contractors Limited [2023] KECA 230 (KLR ) , the Court of Appeal emphasized that where an oral contract is alleged, the party asserting its existence bears the burden of proving both the existence of the contract and its terms. The court must therefore be satisfied from the evidence that the parties reached a meeting of minds on the essential terms of the alleged agreement.
23. In the instance case the Appellant’s own evidence substantially corroborated the Respondent’s case that there was a transaction between the parties concerning the supply of maize.
24. The Appellant contention was principally that payment was to be made by the County Government. However, that does not negate the existence of a contractual relationship between the Appellant and the Respondent and
25. I therefore proceed to make a finding that even though the agreement was not reduced into a formal written contract, there existed an agreement that the Appellant and the Respondent were bound by.
26. Having so determined the first issue, I do find that the appeal by the Appellant is not merited. The Respondent supplied the maize as directed by the Appellant and the payment was to be done by the Appellant. The delay by the County Government to make payments to the Appellant does not negate both the contract between the Appellant and the Respondent nor the Appellants indebtedness to the Respondent. Whatever disputes there exists between the Appellant and the County Government do not affect the Appellants obligation to the Respondent. The Appellant is at liberty to proceed against the County Government separately for any liabilities incurred.
27. It therefor follows that the appeal against the judgment and decree of the trial court was made on sound analysis of the evidence before it.
Disposition .
a. The appeal against the judgment and decree of the trail court in Kitale SCCC No. E015 of 2024 is hereby dismissed.
b. Costs of the appeal are awarded to the Respondent .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 8 th September 2026.
HCCA NO. E019 OF 2024 BEATRICE AKELLO MBOYA VS ANDREW MUNA JUDGMENT Pg. 9
JUDGMENT
Brief facts
1. This appeal arises from the judgment of Kitale Small Claims Court SCOMM Number E015 of 2020, Andrew Githinji Muna vs Beatrice Akello Mboya, whereby the trial court allowed the Respondent’s suit against the Appellant.
2. The Respondents pleaded that on the 10 th November, 2022 she supplied 130 bags of maize to the Respondent at an agreed consideration of Kshs. 6,500.00 per bag thereby making the total consideration of 845,000.00 which the Appellant had promised to pay within 7 days but ended up not paying the said monies
3. It was further the Respondent’s case that the Appellant was later charged with obtaining money under false pretenses vide Kitale Criminal Case Number 3603 of 2023 and was released at a bond of Kshs. 200,00000. The Respondent pleaded that a judgement in the sum of Kshs. 845,000/= be entered against the Appellant with costs and interest.
4. The Appellant filed his response to statement of claim in which he impleaded that he did not owe the Respondent any money and that he was given a contract by the county government of Trans – Nzoia to supply maize and was issued with an LPO and since she did not have maize she asked the Respondent to supply using the LPO which has not been paid.
5. Judgement was entered against the Appellant and being dissatisfied with the court’s decision, the appellant lodged this appeal citing 6 grounds of appeal as follows: -
1) The learned trial magistrate erred in law and in fact in finding and holding that the invoice produced by the Appellant was equivalent to a note of the terms of sale between the claimant and the Respondent, yet the same was not valid.
2) The learned trial magistrate erred in law and in fact in finding and holding that there was a valid contract between the Appellant and the Respondent yet there was none.
3) That the learned trial magistrate erred in law by failing to scrutinize the invoice to determine its authenticity.
4) The learned trial magistrate fully relied on evidence and submissions by the Respondent and failed to analyze the law, evidence, and submissions supplied by the Appellant so as to arrive at a fair conclusion.
5) The learned magistrate erred in law and in fact in shifting the evidential burden of proof to the Appellant, ignoring the fact that the legal and evidential burden lay with the Respondent who failed to discharge the same.
6) That the findings of the learned trial magistrate were against the weight of available evidence.
6. The appeal was canvassed by way of written submissions which I have considered. From the pleadings and submissions, I find that the following issues arise for determination: -
1) Whether there existed a contract between the Appellant and the Respondent.
2) Whether the Appeal is meritorious.
Analysis & Determination
7. This is an appeal from the Small Claims Court which is established undersection 4(1) of the Small Claims Court Act. Section 38 of the said Act provides for appeals. It states as follows:
“Any person aggrieved by the decision or an order of the court may appeal against the decision or order to the High Court on matters of Law”.
8. It is apparent that the right of appeal from a decision of the said court is limited to matters of law. In Kitui Flour Mills Limited v Kirimi & another (Civil Appeal E172 of 2023) [2024] KEHC 420 the court examined the said provision and held as follows;
“It is trite that an appeal on a matter of law includes the inquiry whether the conclusions of the trial court are sound on the evidence availed before it and, therefore, with respect to counsel for the respondents, this involves the re-evaluation of the evidence. In the very decision cited by Counsel for the Respondents, Peter Gichuki King'ara v IEBC & 2 Others[2014]eKLR , the Court of Appeal (Visram, Koome (as she then was) & Odek, JJ.A.) where after considering the authorities held “Having established that we have jurisdiction to determine only issues of law as per the provisions of Section 85A of the Elections Act, to us the whole question of whether the trial Judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence with of course the usual caveat, that we did not see the witnesses demeanor is an issue of law.” [emphasis added]
9. The said provision was also addressed by the High court in Wanjiru vs Kiilu (2024) KEHC 8881 (KLR ) where it was held as follows:
“It therefore follows that appeals originating from the Small Claims Court to this court can only be on points of law. Consequently, this court cannot, in appeals emanating from that Court, entertain an invitation to interfere with the factual findings of the trial court. The duty of this court when dealing with such appeals, is therefore equivalent to that of the Court of Appeal in its capacity as a second appellate court. In Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR the Court of Appeal distinguished between matters of law and matters of fact and stated that: “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 analyze 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 analyzed 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.”
10. Also, 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 of the lower court. The appellate Court should not interfere with the decision of the trial court on the factual issues ‘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’. The court stated that;
“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] KLR78, 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 wherein, 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.”
11. Applying the above decisions to the instant appeal, it is therefore clear that when dealing with this appeal, this court will only confine itself to the issues of law raised in the Memorandum of Appeal.
12. On the first issue it is trite that there has to be evidence of an existing valid and enforceable contract between the Appellant and the Respondent. The Appellant’s contention is that there was no contract between the parties while the Respondent maintains that she supplied the Appellant with 130 bags of maize at an agreed price of Kshs. 6,500.00 per bag which was to be payable within seven days.
13. It is trite that a contract need not necessarily be in writing. A contract may be oral, provided that the essential elements of a valid contract are established. In William Muthee Muthami v Bank of Baroda [2014] eKLR , the Court of Appeal stated that for a contract to be valid and enforceable, there must be an offer, acceptance and consideration. The absence of a written agreement is therefore not of itself sufficient to invalidate an otherwise valid contract.
14. Further, in Ali Abdi Mohammed v Kenya Shell & Company Limited [2017] eKLR , the Court of Appeal recognized that a contract may arise not only through express words but also from the conduct of the parties. The court must therefore consider the evidence as a whole and determine whether the parties by their words or conduct, demonstrated an intention to create legal relations.
15. In the present case, the Respondent’s case before the trial court was that she supplied the Appellant with 130 bags of maize at Kshs. 6,500.00 per bag giving a total value of Kshs. 845,000.00 and that the Appellant undertook to make payment within seven days.
16. The Court also notes that the Respondent relied on the invoice as evidence of the transaction. The Appellant challenged the authenticity and validity of the invoice and contended that it did not constitute a contract between the parties.
17. It is my considered view that the production of an invoice does not necessarily establish the existence of a contract. However, the Court is under an obligation to investigate the circumstances upon which the said invoice was generated and whether it was accepted by the Appellant and if the goods were delivered and received by and on behalf of the Appellant and lastly whether there was an agreement as to the price and the time for payment.
18. The burden of proving the existence of the alleged contract lay in the first instance upon the Respondent as demonstrated by Section 107(1) of the Evidence Act , which provides that whoever desires a court to give judgment as to a legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Section 108 further places the burden on the person who would fail if no evidence at all were given on either.
19. To this end I am of the considered view that the Respondent was therefore required to establish on a balance of probabilities and not only that there was a transaction involving maize but also that there was an agreement between herself and the Appellant.
20. I have also read the Respondent’s response to the statement of claim which is also significant and the evidence tendered in court by both parties during the hearing of the main suit and she did not deny the existence or knowledge of the transaction. She testified that there had been contracted by the County Government of Homa Bay to supply maize and she had requested the Respondent to supply the maize to Kogolo maize milling Plant.
21. The said evidence in my considered view amounted to an acknowledgment of the underlying transaction involving the supply of maize, although the Appellant disputed personal liability for payment but it was delivered based on her instructions.
22. In Attorney General v Kabuito Contractors Limited [2023] KECA 230 (KLR ) , the Court of Appeal emphasized that where an oral contract is alleged, the party asserting its existence bears the burden of proving both the existence of the contract and its terms. The court must therefore be satisfied from the evidence that the parties reached a meeting of minds on the essential terms of the alleged agreement.
23. In the instance case the Appellant’s own evidence substantially corroborated the Respondent’s case that there was a transaction between the parties concerning the supply of maize.
24. The Appellant contention was principally that payment was to be made by the County Government. However, that does not negate the existence of a contractual relationship between the Appellant and the Respondent and
25. I therefore proceed to make a finding that even though the agreement was not reduced into a formal written contract, there existed an agreement that the Appellant and the Respondent were bound by.
26. Having so determined the first issue, I do find that the appeal by the Appellant is not merited. The Respondent supplied the maize as directed by the Appellant and the payment was to be done by the Appellant. The delay by the County Government to make payments to the Appellant does not negate both the contract between the Appellant and the Respondent nor the Appellants indebtedness to the Respondent. Whatever disputes there exists between the Appellant and the County Government do not affect the Appellants obligation to the Respondent. The Appellant is at liberty to proceed against the County Government separately for any liabilities incurred.
27. It therefor follows that the appeal against the judgment and decree of the trial court was made on sound analysis of the evidence before it.
Disposition .
a. The appeal against the judgment and decree of the trail court in Kitale SCCC No. E015 of 2024 is hereby dismissed.
b. Costs of the appeal are awarded to the Respondent .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 8 th September 2026.
HCCA NO. E019 OF 2024 BEATRICE AKELLO MBOYA VS ANDREW MUNA JUDGMENT Pg. 9