JUDGMENT
BACKGROUND
1. By a Plaint dated 30 th June, 2021, the Respondent sued the Appellant for judgment to be entered against the Appellant for ;-
a) The outstanding sum of Kshs. 7,782,742/=
b) Interest on the outstanding sum (a) at the Kenya Commercial Bank rates from 14 th June, 2021, until payment in full.
c) Costs of this suit
2. The Respondent averred that on diverse dates in 2021, the Appellant requested the Respondent to supply milk at an agreed unit price of Kshs. 43/= per kg resulting to the supply of 180,994 kgs of milk.
3. The Appellant was said to have refused to pay for the supply resulting to a debt of Kshs. 7,782,742/= as at the date of filing suit.
4. The Appellant filed its statement of Defence on 4/08/2021 where they denied the amount as sought by the Respondent in its Plaint and termed the amount as exaggerated.
5. The matter proceeded to a full hearing. The trial court found that the amount of milk delivered was 161.466 kgs at Kshs. 43/= totalling to Kshs. 6,943,038/=. The trial court found this to be the amount owed and entered judgment in the said sum.
6. The Appellant is dissatisfied with the lower Court’s judgment and has preferred the present Appeal. In its Memorandum of Appeal, it has listed the following grounds of appeal that:-
a) The Learned Magistrate erred in fact and in law by awarding special damages worth Kshs. 6,943,038/= to the Respondent based on fictitious delivery notes.
b) The Learned Magistrate erred in law and fact by shifting the burden of proof to the Defendant by holding to that the Appellant did not adduce any delivery notes to evidence how much milk it received.
c) The Learned Magistrate erred in law and fact by failing to hold that the Respondent had proved its case on a balance of probability.
d) The Learned Magistrate failed to give a chance to the Appellant to reconcile the parties statement of account in a bid to harmonize the disputed issued invoices.
7. The court directed the parties to canvass the appeal by way of written submissions.
APPELLANT’S SUBMISSIONS.
8. The Appellant submits that the burden of proof is on the Respondent to prove its case on a balance of probabilities. It was said that it was the Respondent’s burden to prove that the Appellant owed them Kshs. 7,782,742/= for the milk supplied but not paid for. Reliance was placed in the case of Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & another (2005) 1 EA 334 . The claim was said to be one of special damages as such must be pleaded and proved. It was submitted that the trial court failed to consider the accounts analysis in its ratio decidendi. It was submitted that the delivery notes provided by the Respondent were not stamped and the alleged people who signed the said delivery notes were not the Appellant’s employees. Reliance was placed in the case of Makutano Makumba Self Help Group vs Abdul Wahab Majid (2020) eKLR. The Respondent was said to have failed to prove that the delivery notes were signed by the Appellant hence the trial court erred in finding that the Appellant received the milk. The delivery notes produced were said to be falsified as they did not have a stamp. Reliance was placed in the case of E.P. Communications Limited vs East Africa Courier Services Limited (2019) eKLR . It was submitted that the trial court should have carefully examined the delivery notes, the Appellant having denied knowledge of the employees who signed the said delivery dates
RESPONDENT’S SUBMISSIONS
9. The Respondent submits that it tabled before the trial court delivery notes and invoices supporting its claim of Kshs. 7,782,742/=. The trial magistrate was said to have considered each delivery note while disallowing delivery numbers 657 and 697 as they had not been counter checked by the Appellant and arrived at a total of 6,634 kilo/litres of milk. The trial court tallied the delivery notes and arrived at 161,466 kilo litres of milk @ Kshs. 43/= and awarded the Respondent Kshs. 6,943,038/=. Further, the Respondent submitted that the burden of proof was never shifted to the Appellant at any time and that despite the express admission by the Appellant to owing the Respondent Kshs. 6,085,545/=, the trial court still considered the delivery notes produced before arriving at its decision. The Appellant was said to have failed to prove the allegations that it was not aware of who was signing the delivery notes. The court was urged not to interfere with the findings of the trial court and dismiss the appeal. Reliance was placed in the case of Mwanasokoni vs Kenya Bus Service Ltd (1982-88) 1 KAR 278 and Kiruga vs Kiruga & another (1988) KLR 3481.
TRIAL COURT’S EVIDENCE
10. PETER MUKOMA MBUTHA (PW1) the director of La Gloria Farmers Ltd wished to adopt his witness statement and list of documents. In cross-examination he stated that he engaged the Defendant on matters purchase and not packaging. He stated that the invoices are not exaggerated and that they issued delivery notes. He gave out the original invoices and was left with carbon copies. He gave out correct figures from 1/4/2021 to 14/5/2021. He stated that the Defendant was served with the demand letter on 15/6/2021.
11. ALPHONE ONDORO (DW1) the Defendant’s Accountant adopted his witness statement. in cross exam he stated that they accepted 141.522.18 kgs and that the invoices in court were not genuine. He stated that the vendor must verify that the milk has been received. He stated that the outstanding amount is Kshs. 6,085,454/= and not the amount pleaded in the Plaint. He stated that the invoices before court were not valid and that the delivery notes were not stamped.
ISSUES FOR DETERMINATION
12. Having read and considered the trial court record and the submissions by both parties, the main issue arising for determination is;
(i) Whether the Respondent proved its case on a balance of probability
ANALYSIS
13. This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others (1968) EA 123, this principle was enunciated thus;-
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
Whether the Respondent proved its case on a balance of probability;
14. The Appellant herein contends that the Respondent failed to prove its claim on a balance of probability. And the trial court is accused of shifting the burden of prove to the Appellant.
15. The claim herein arises from supply of milk which is evidenced by the issuance of delivery notes. The Respondent produced delivery notes to prove its claim.
16. The trial court in its judgment carefully considered the delivery notes provided by the Respondent as such the Appellant cannot claim that the burden was shifted to them to prove the Respondent’s claim as the Respondent was the one who provided the delivery notes that were considered by the trial court in arriving at the final decision.
17. The trial court cannot be said to have shifted the burden of proof to the Appellant as it is the Respondent who proved its case by producing delivery notes which were issued by the Appellant upon delivery of the milk.
18. The Appellant claims that the delivery notes provided by the Respondent are not valid as they are not stamped by the Appellant. Further that the people who signed on the delivery notes are not its employees.
19. The Appellant provided a list of its employees to prove that the people whose names that appear on the delivery notes are not among its employees.
20. This court is not satisfied with the authenticity of the list provided by the Appellant as the list just provides names and it lacks features to make it appear genuine and it also lacks proper letter headed paper with the name of the company
21. Be that as it may, it is noteworthy that the Appellant’s witness ( DW1 ) during trial admitted to being indebted to the Respondent for a sum of Kshs. 6,085,454/= and as such cannot turn around and claim that the delivery notes provided are not valid.
22. The court in its ruling dated 27/10/2022 ordered that there be taking of accounts and the findings be filed in court. The Respondent in that regard filed its supplementary list of documents producing invoice number 311 dated 1/5/21 for delivery notes for 124,750.8 kgs amounting to Kshs. 5,364,284/= and invoice number 312 dated 16/5/21 for 56,243.2 kgs amounting to Kshs. 2,418,457/=.
23. The trial court in its judgment considered the delivery notes provided leaving out the ones that were not signed. In the end the trial court found that the amount of milk delivered was 161.466 kgs at Kshs. 43/= totalling to Kshs. 6,943,038/=. The trial court found this to be the amount owed and thus entered judgment.
24. This court after perusal of the trial court record notes that the trial court directed the parties herein to take accounts and the same be filed in court. There is no evidence that both parties participated in this activity. The Respondent went ahead to file its supplementary list of documents which contained the delivery notes.
25. This court takes note that the amount being claimed by the Respondent is contested by the Appellant; the taking of accounts by both parties would have assisted the Court in determining the correct amount that is owed to the Respondent by the Appellant.
26. Be that as it may, both parties in their evidence admit that the Appellant during the main trial admitted that milk was supplied and admitted to owing the Respondent Kshs. 6,085,454/=. Both parties also agreed to reconciliation and failed to comply upon being granted indulgence to meet and iron out issues. In the circumstances, this court is satisfied that in the absence of compliance with the Order for the taking of accounts the admitted sum is the amount that is found due and owing to the Respondent.
FINDINGS AND DETERMINATION
27. For the forgoing reasons this Court makes the following findings and determinations.
(i) The Appeal is found to be partially with merit.
(ii) The judgment dated 27/06/2024 is hereby set aside and substituted with a judgment in favour of the Plaintiff/Respondent in the sum of Kshs.6,085,454/=
(iii) Interest at Court rates be applicable on Kshs.6,085,454/- and shall be applied from the date of filing suit.
(iv) The Respondent shall have costs of the trial; On the appeal each party shall bear its own costs.
Orders Accordingly
DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 7 TH DAY OF JANUARY, 2026
A.MSHILA
JUDGE
In the presence of;
Julie – Court assistant
N/A - For the Appellant
Oduor h/b for Mwaniki - For the Respondent
BACKGROUND
1. By a Plaint dated 30 th June, 2021, the Respondent sued the Appellant for judgment to be entered against the Appellant for ;-
a) The outstanding sum of Kshs. 7,782,742/=
b) Interest on the outstanding sum (a) at the Kenya Commercial Bank rates from 14 th June, 2021, until payment in full.
c) Costs of this suit
2. The Respondent averred that on diverse dates in 2021, the Appellant requested the Respondent to supply milk at an agreed unit price of Kshs. 43/= per kg resulting to the supply of 180,994 kgs of milk.
3. The Appellant was said to have refused to pay for the supply resulting to a debt of Kshs. 7,782,742/= as at the date of filing suit.
4. The Appellant filed its statement of Defence on 4/08/2021 where they denied the amount as sought by the Respondent in its Plaint and termed the amount as exaggerated.
5. The matter proceeded to a full hearing. The trial court found that the amount of milk delivered was 161.466 kgs at Kshs. 43/= totalling to Kshs. 6,943,038/=. The trial court found this to be the amount owed and entered judgment in the said sum.
6. The Appellant is dissatisfied with the lower Court’s judgment and has preferred the present Appeal. In its Memorandum of Appeal, it has listed the following grounds of appeal that:-
a) The Learned Magistrate erred in fact and in law by awarding special damages worth Kshs. 6,943,038/= to the Respondent based on fictitious delivery notes.
b) The Learned Magistrate erred in law and fact by shifting the burden of proof to the Defendant by holding to that the Appellant did not adduce any delivery notes to evidence how much milk it received.
c) The Learned Magistrate erred in law and fact by failing to hold that the Respondent had proved its case on a balance of probability.
d) The Learned Magistrate failed to give a chance to the Appellant to reconcile the parties statement of account in a bid to harmonize the disputed issued invoices.
7. The court directed the parties to canvass the appeal by way of written submissions.
APPELLANT’S SUBMISSIONS.
8. The Appellant submits that the burden of proof is on the Respondent to prove its case on a balance of probabilities. It was said that it was the Respondent’s burden to prove that the Appellant owed them Kshs. 7,782,742/= for the milk supplied but not paid for. Reliance was placed in the case of Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & another (2005) 1 EA 334 . The claim was said to be one of special damages as such must be pleaded and proved. It was submitted that the trial court failed to consider the accounts analysis in its ratio decidendi. It was submitted that the delivery notes provided by the Respondent were not stamped and the alleged people who signed the said delivery notes were not the Appellant’s employees. Reliance was placed in the case of Makutano Makumba Self Help Group vs Abdul Wahab Majid (2020) eKLR. The Respondent was said to have failed to prove that the delivery notes were signed by the Appellant hence the trial court erred in finding that the Appellant received the milk. The delivery notes produced were said to be falsified as they did not have a stamp. Reliance was placed in the case of E.P. Communications Limited vs East Africa Courier Services Limited (2019) eKLR . It was submitted that the trial court should have carefully examined the delivery notes, the Appellant having denied knowledge of the employees who signed the said delivery dates
RESPONDENT’S SUBMISSIONS
9. The Respondent submits that it tabled before the trial court delivery notes and invoices supporting its claim of Kshs. 7,782,742/=. The trial magistrate was said to have considered each delivery note while disallowing delivery numbers 657 and 697 as they had not been counter checked by the Appellant and arrived at a total of 6,634 kilo/litres of milk. The trial court tallied the delivery notes and arrived at 161,466 kilo litres of milk @ Kshs. 43/= and awarded the Respondent Kshs. 6,943,038/=. Further, the Respondent submitted that the burden of proof was never shifted to the Appellant at any time and that despite the express admission by the Appellant to owing the Respondent Kshs. 6,085,545/=, the trial court still considered the delivery notes produced before arriving at its decision. The Appellant was said to have failed to prove the allegations that it was not aware of who was signing the delivery notes. The court was urged not to interfere with the findings of the trial court and dismiss the appeal. Reliance was placed in the case of Mwanasokoni vs Kenya Bus Service Ltd (1982-88) 1 KAR 278 and Kiruga vs Kiruga & another (1988) KLR 3481.
TRIAL COURT’S EVIDENCE
10. PETER MUKOMA MBUTHA (PW1) the director of La Gloria Farmers Ltd wished to adopt his witness statement and list of documents. In cross-examination he stated that he engaged the Defendant on matters purchase and not packaging. He stated that the invoices are not exaggerated and that they issued delivery notes. He gave out the original invoices and was left with carbon copies. He gave out correct figures from 1/4/2021 to 14/5/2021. He stated that the Defendant was served with the demand letter on 15/6/2021.
11. ALPHONE ONDORO (DW1) the Defendant’s Accountant adopted his witness statement. in cross exam he stated that they accepted 141.522.18 kgs and that the invoices in court were not genuine. He stated that the vendor must verify that the milk has been received. He stated that the outstanding amount is Kshs. 6,085,454/= and not the amount pleaded in the Plaint. He stated that the invoices before court were not valid and that the delivery notes were not stamped.
ISSUES FOR DETERMINATION
12. Having read and considered the trial court record and the submissions by both parties, the main issue arising for determination is;
(i) Whether the Respondent proved its case on a balance of probability
ANALYSIS
13. This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others (1968) EA 123, this principle was enunciated thus;-
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
Whether the Respondent proved its case on a balance of probability;
14. The Appellant herein contends that the Respondent failed to prove its claim on a balance of probability. And the trial court is accused of shifting the burden of prove to the Appellant.
15. The claim herein arises from supply of milk which is evidenced by the issuance of delivery notes. The Respondent produced delivery notes to prove its claim.
16. The trial court in its judgment carefully considered the delivery notes provided by the Respondent as such the Appellant cannot claim that the burden was shifted to them to prove the Respondent’s claim as the Respondent was the one who provided the delivery notes that were considered by the trial court in arriving at the final decision.
17. The trial court cannot be said to have shifted the burden of proof to the Appellant as it is the Respondent who proved its case by producing delivery notes which were issued by the Appellant upon delivery of the milk.
18. The Appellant claims that the delivery notes provided by the Respondent are not valid as they are not stamped by the Appellant. Further that the people who signed on the delivery notes are not its employees.
19. The Appellant provided a list of its employees to prove that the people whose names that appear on the delivery notes are not among its employees.
20. This court is not satisfied with the authenticity of the list provided by the Appellant as the list just provides names and it lacks features to make it appear genuine and it also lacks proper letter headed paper with the name of the company
21. Be that as it may, it is noteworthy that the Appellant’s witness ( DW1 ) during trial admitted to being indebted to the Respondent for a sum of Kshs. 6,085,454/= and as such cannot turn around and claim that the delivery notes provided are not valid.
22. The court in its ruling dated 27/10/2022 ordered that there be taking of accounts and the findings be filed in court. The Respondent in that regard filed its supplementary list of documents producing invoice number 311 dated 1/5/21 for delivery notes for 124,750.8 kgs amounting to Kshs. 5,364,284/= and invoice number 312 dated 16/5/21 for 56,243.2 kgs amounting to Kshs. 2,418,457/=.
23. The trial court in its judgment considered the delivery notes provided leaving out the ones that were not signed. In the end the trial court found that the amount of milk delivered was 161.466 kgs at Kshs. 43/= totalling to Kshs. 6,943,038/=. The trial court found this to be the amount owed and thus entered judgment.
24. This court after perusal of the trial court record notes that the trial court directed the parties herein to take accounts and the same be filed in court. There is no evidence that both parties participated in this activity. The Respondent went ahead to file its supplementary list of documents which contained the delivery notes.
25. This court takes note that the amount being claimed by the Respondent is contested by the Appellant; the taking of accounts by both parties would have assisted the Court in determining the correct amount that is owed to the Respondent by the Appellant.
26. Be that as it may, both parties in their evidence admit that the Appellant during the main trial admitted that milk was supplied and admitted to owing the Respondent Kshs. 6,085,454/=. Both parties also agreed to reconciliation and failed to comply upon being granted indulgence to meet and iron out issues. In the circumstances, this court is satisfied that in the absence of compliance with the Order for the taking of accounts the admitted sum is the amount that is found due and owing to the Respondent.
FINDINGS AND DETERMINATION
27. For the forgoing reasons this Court makes the following findings and determinations.
(i) The Appeal is found to be partially with merit.
(ii) The judgment dated 27/06/2024 is hereby set aside and substituted with a judgment in favour of the Plaintiff/Respondent in the sum of Kshs.6,085,454/=
(iii) Interest at Court rates be applicable on Kshs.6,085,454/- and shall be applied from the date of filing suit.
(iv) The Respondent shall have costs of the trial; On the appeal each party shall bear its own costs.
Orders Accordingly
DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 7 TH DAY OF JANUARY, 2026
A.MSHILA
JUDGE
In the presence of;
Julie – Court assistant
N/A - For the Appellant
Oduor h/b for Mwaniki - For the Respondent