(Being an appeal against the judgment and decree of Hon. Wamae E. M., Adjudicator delivered on 2 nd May 2024 in Milimani Small Claims Court SCCCOMM. CLAIM NO. E1627 of 2024)
1. This appeal arises from a judgment of the Small Claims Court (SCC) dated 2 nd May 2024 in which the court dismissed the appellant’s claim for recovery of KShs 187,167/= as the outstanding amount for goods supplied to the respondent, chicken and chicken products allegedly sold and delivered by the appellant to the respondent in the month of July 2023.
2. The respondent filed a response to the claim and denied the claim in toto.
3. Upon analyzing the evidence and considering the law and an authority, the learned Adjudicator concluded that the claim had not been proved and she dismissed the same with costs to the respondent for reasons that the appellant had failed to prove the claim on a balance of probability that he was an unpaid seller under Part V of the Sale of Goods Act (Cap. 31) Laws of Kenya.
4. The appellant was dissatisfied with the judgment and in the memorandum of appeal dated 31 st May 2023 (should be 2024) he raised the following grounds, that is:
a) the trial magistrate erred in law and fact in his determination that special damages were not specifically proved by the appellant.
b) the trial magistrate erred in law and fact in failing to appreciate that the claimant’s evidence remained uncontroverted.
c) the trial magistrate erred in law and fact by failing to consider the documentary evidence in support of the appellant’s claim.
d) the trial magistrate erred in his application of the law and fact to ascertain the burden of proof.
5. The appellant therefore prays that the appeal be allowed and the judgment of the trial court delivered on 2 nd May 2024 be set aside and with an order for costs and that this court may make such further or consequential orders as it deems just.
6. The appeal was disposed of by way of written submissions filed by learned counsels for the parties. The same are considered in the analysis that follows.
7. I have considered the grounds set out in the Memorandum of Appeal and the submissions by learned counsels for the parties. The appellant reduced the four grounds above into one issue for determination, that is whether the appellant proved his claim before the SCC on a balance of probability. The respondent on his part raised four issues as follows:
a) Whether or not there existed an agreement between the appellant and the respondent.
b) Whether the appellant supplied the goods in question to the respondent.
c) Whether or not the respondent was in breach of the agreement in question.
d) Whether or not the respondent should be compelled to compensate the appellant.
8. The issues as set out by the respondent suggest that this court should proceed to consider, re-evaluate and re-analyse the evidence tendered before the SCC and arrive at its own findings and conclusions thereon as held in the case of Selle vs Associated Motor Boat Company (1969) E.A 123) . However, that is not correct because, as will be seen shortly, from the provisions of the Small Claims Court Act (Cap. 10A) Laws of Kenya, this court does not proceed with the appeal by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters before the magistrates’ courts.
9. As a preliminary issue for guidance to learned counsel for the appellant that the SCC is presided over by an Adjudicator and not a magistrate. It is important to bear in mind the vital provisions of the SCCA in order to appreciate and always have at the back of the mind the spirit behind the creation of this very distinguished court because, otherwise it gets meshed up with the operations of the magistrate’s court and there it loses meaning as a different court from the magistrate’s court. In the Kenyan context, an Adjudicator is indeed a magistrate, with full legal training and an admitted advocate of the High Court of Kenya. However, while presiding over the SCC she removes the robes of a magistrate and wears the ordinary garment of an Adjudicator who in the spirit of the SCCA should come down to the level of a reasonably informed person. The reasons are that the SCC is designed to be simple that is, without the strictures of formal procedure and strict evidentiary rules, fast and accessible.
10. First, an appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act . The Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) dealt with the issue of how grounds of appeal ought to be framed when the issue on appeal is a point of law only thus:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
11. On the issue of how an appellate court dealing with an appeal based on points of law only, the Court of Appeal in numerous decisions has reiterated consistently the decision in Stephen Muriungi and Another vs. Republic (1982-88) 1 KAR 360 , where Chesoni Acting JA (as he then was) said at page 366:
‘We would agree with the view expressed in the English case of Martin vs Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 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 as holdings of law or mixed 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’.”
12. Another important feature to bear in mind while considering the appeal is that the SCC Act exempts the court’s proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy (emphasis by underlining supplied). It follows from this provision that it is largely upon the Adjudicator to determine the material to rely upon. Section 32 of the Act provides that the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It further, provides that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence (emphasis by underlining supplied). This means the Adjudicator has the discretion to admit any evidence which may be helpful in establishing whether or not the claim is proved. This provision further limits the province of the appellate court to issues of law only as the appellate court would have no means to overturn the findings of fact by the trial court and substitute them with its own findings.
13. Given the provisions of the SCC Act excluding to a large extent the strict provisions of the law of evidence and the technicalities of procedure under the CPR, I would find that the standard of reasonableness would be that of reasonably informed person. My thinking therefore is that the responsibility of this court when considering an appeal from the SCC is to consider the legality and reasonableness of the decision of the learned Adjudicator. If this court is satisfied that the law was properly considered and applied and a reasonable evaluation of the facts had, then it will not interfere with the findings and determination of the trial court. The converse would also be true. That where the law was not properly considered and/or applied or where the decision does not seem reasonable on the standards of a reasonably informed person from the facts before the court, then this court will interfere.
14. The claim by the appellant was set out in his statement of claim dated 15 th February 2024 and expounded in his witness statement of the same date and documents produced in support of the claim being various invoices, a statement of account and a demand letter. The claim was that that the appellant entered into an agreement with the respondent for the supply by the appellant and purchase by the respondent of chicken and chicken products from the appellant. According to the appellant he did supply the goods to the respondent’s two restaurant outlets, one known as SanjeChulha Restaurant and the other as Qishmish Reataurant on the understanding that the respondent would pay for the same on delivery. The respondent however failed to pay for some of the goods supplied and as at July 2023, the outstanding amount was KShs 54,680/= for the supplu to SanjeChulha Restaurant and KShs 132,487/= for the supply to Qishmish Restaurant making a total of KShs 187,167/=. The claim also included KShs 10,000/= as the cost of issuance of the demand letter and collection fees.
15. In his response dated 18 th March 2024, the respondent stated that he did not owe the appellant any money and further that he denied the appellant’s averments made in the claim and put the appellant to strict proof thereof. The respondent did not file any witness statement or document to discounts the appellant’s claim.
16. The case proceeded by way of the pleadings, witness statements and documents filed by the parties under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya. Section 30 of the SCCA provides that:
S. 30. Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.
17. In the judgment dismissing the claim, the learned Adjudicator considered various aspects of the law relating to sale of goods as well as decided cases.
18. The learned Adjudicator found that on the provisions of sections 3 and 39(1)(a) of the Sale of Goods Act (Cap. 31) Laws of Kenya (SGA) and section 37 of the Evidence Act (Cap. 80 Laws of Kenya, the appellant had not proved that the respondent made an offer to purchase goods from the appellant as no LPOs or any contract had been produced as exhibit. She found that without exchange of LPOs/contracts and invoices “it did not consummate the sale agreement.” She also found that the appellant had failed to establish that he was an unpaid seller under section 39(1)(a) of the SGA. She found further that the appellant only produced invoices and client account statements as his evidence and that the claimant issued invoices “confirming the price of materials.” Further that, “ invoices and LPOs alone do not prove delivery or receipt of goods . A delivery note is proof of delivery of goods. The invoices were not supported by any delivery note or notes to show receipt of the goods stated therein . The claimant may have supplied the goods, but courts of law act on hard evidence not sympathy or speculation. In the absence of delivery note or evidence of receipt of goods, it becomes doubtful whether the goods were delivered.” ( Emphasis by underlining and bold by this court). It would appear that the learned Adjudicator may have imported some writings from another decision inadvertently into this case.
19. It is apparent from the foregoing analysis of the evidence by the learned Adjudicator that she was satisfied that an agreement for the supply of the goods existed but that the appellant had failed to prove that he had supplied the goods to the respondent due to lack of delivery notes or evidence of delivery of the goods.
20. It is however also apparent that the learned Adjudicator in her judgment brought into the claim issues of LPOs which neither of the parties had stated in his pleadings, witness statement or documents. Having been satisfied that an agreement existed between the parties, LPOs (which however were not referred to by either of the parties) were unnecessary to be considered as proof of existence of the agreement.
21. The learned Adjudicator also found wrongly that there were no delivery notes produced to prove delivery when in fact the documents relied upon by the appellant were delivery notes, invoices and statement of account.
22. The delivery notes and invoices were issued by Ledamcha Suppliers, the appellant, and addressed to the respondent Qishmish Restaurant and Sanje Chulha, the names in which the respondent conducts his business. The delivery notes and invoices made available are reduced into the table below:
Date
Delivery Note No.
Invoice No.
Amount (KShs)
28/06/2023
9222
11,000
02/06/2023
8213
5,700
03/05/2023
8548
33,250
23/09/2022
5460
16,500
22/09/2022
5556
42,900
13/09/2022
5347
72,100
08/08/2022
5137
14,375
03/08/2022
5113
17,630
19/10/2022
5909
46,370
25/07/2022
4964
10,750
23. I have set out this list of invoices and delivery notes relied upon by the appellant not show that they proved the outstanding amount but to show that they were made available by the appellant to support his case. In addition to these documents the appellant also provided two statements of account, one for Qishmish Restaurant and the other for Sanje Chulha each for the respective amounts made in the claim before the SCC.
24. The respondent did not dispute any of these documents by way of evidence and the SCC should have taken them to be correct and reliable in accordance with the provisions of the SCCA. When considered these documents, show and there is no dispute that the parties were in business as early as July 2022 and as late as November 2023. The business transactions shown therein were that the appellant was supplying the respondent with chicken and chicken products. Therefore, the existence of an agreement for the business, as claimed by the appellant was proved.
25. Further the learned Adjudicator found that the personal statement relied upon by the appellant was authored for purposes of the case and therefore, was not sufficient to prove liability on a balance of probability “especially considering the supporting documentation relied on was invoices without the evidence of LPOs and delivery of the goods.” (emphasis in bold supplied). It is apparent that the learned Adjudicator was proceeding on her earlier finding that delivery notes had not been made available when in fact they were. What the learned Adjudicator considered was not whether the delivery notes were not sealed by the respondent to signify receipt of the goods, as submitted by learned counsel for the respondent. For the learned Adjudicator her position was that they were not available made available at all. Had she considered that in fact there were delivery notes made available by the appellant, perhaps she would have come to a different conclusion since she had found earlier that the existence of the agreement was not disputed.
26. Learned counsel for the appellant submits that the learned Adjudicator was correct in her findings because she relied on section 37 of the Evidence Act (Cap. 80) Laws of Kenya and the case of Five Continents Ltd v Mpata Investments Ltd [2003] KECA 156 (KLR) . Section 37 of the Evidence Act provides that:
S. 37. Entries in books of account regularly kept in the course of business are admissible whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.
27. In Five Continents Ltd v Mpata Investments Ltd [2003] KECA 156 (KLR) , the Court of Appeal held that:
“The plaintiff mainly relied on the accounts analysis to show the defendant’s indebtedness. That accounts analysis was apparently prepared by the plaintiff for use in this suit. It is not itself a book of account regularly kept in the course of business. Even if it were, such a statement would not alone be sufficient evidence to charge the defendant with liability (see Section 37 of the Evidence Act). It follows that the accounts analysis on which the learned judge relied has no evidential value.”
28. When considering authorities, including decided cases and even text books on admissibility and reliability of evidence, an Adjudicator should always bear in mind the provisions of the SCCA which excludes the strict application of the rules of evidence as conventionally known, which the authority may not be in line with, such as the present case. The above case was therefore not applicable in the case of the SCCA.
29. Relying on the above authority the learned Adjudicator found that the statement of account produced by the appellant was not sufficient to prove liability against the respondent considering the supporting documents relied on were invoices without the evidence of LPOs and delivery of the goods. It was instructive for the learned Adjudicator at this point to recall the provisions of the SCCA that it permits the court to include as evidence any material that it deems credible or trustworthy and further that the court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence. The learned Adjudicator did not offer any reason why she would not have found the written witness statement of the appellant and the supporting documents to be credible and trustworthy. I have found that the issue of LPOs not being made available was not before the SCC for its consideration. What remained was whether the learned Adjudicator was correct to find that there was no proof of delivery of the goods.
30. I have found above that in fact there were delivery notes relied upon by the appellant. What is apparent is that the same were not signed by the respondent or his agent. Learned counsel for the respondent submits the respondent failed to prove that the agreement was enforceable as required under section 6 of the Sale of Goods Act (Cap. 31) Laws of Kenya. Section 6(1) of the Sale of Goods Act (Cap. 31) Laws of Kenya, provides as follows:
S. 6(1). A contract for the sale of any goods of the value of two hundred shillings or upwards shall not be enforceable by action unless the buyer accepts part of the goods so sold, and actually receives them, or gives something in earnest to bind the contract or in part payment, or unless some note or memorandum in writing of the contract is made and signed by the party to be charged or his agent in that behalf.
31. This section deals with the enforceability of a contract for sale of goods by action and not proof of delivery of the goods per se . One way of proof of a contract for the value of two hundred shillings and above is to show that the buyer accepted part of the goods and actually received them. The appellant provided a witness statement that was not challenged that he had supplied the goods. He also provided the supporting documents being the delivery notes, invoices, statements of account and demand notice.
32. Therefore, it was not correct as found by the learned Adjudicator that in the absence of LPOs/contracts there was no proof of existence of the contract. It is true as submitted by learned counsel for the respondent that the onus was upon the respondent to prove this. Parties agreed to proceed by way of documents filed. The appellant filed a witness statement and also made available documents to support his averments in the claim. The respondent did not even provide a witness statement to discount the one made by the appellant. The averments in the response to the claim remained bare denials without support. I am guided by the case of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] KECA 99 (KLR) where the case of Magunga General Stores v Pepco Distributors [1987] 2 KAR 89 is cited where Platt JA stated that:
“First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.”
Thus in Magunga General Stores this court authoritatively enunciated the principle that in an action for a debt or liquidated demand a mere denial or general traverse will not do for all purposes. Applying the same principle a defence in an action of that type that is a mere general traverse cannot be and is not a sufficient defence and also discloses no reasonable defence ...”
33. On account of the foregoing analysis, this court is bound to interfere with the judgment of the learned Adjudicator for reasons that the SCC considered matters it should not have considered and failed to consider matters it should have considered (see the case of Kenya Breweries Ltd v Odoyo [2010] KECA 498 (KLR) .
34. What the learned trial Adjudicator needed only to determine was whether in the estimation of a reasonably informed person, the documentary material produced by the appellant supported the claim or not. On the standard of a reasonably informed person looking at the facts as presented herein, I think the finding should be that the documentary material consisting of the witness statement, the delivery notes, the invoices, the statement of accounts and the demand notice was good enough to support the claim.
35. From the foregoing analysis, I find that the appellant’s claim through his written statement was supported by the documents he made available. On the other hand, the respondent made bare averments in response to the claim, denying the same. He left it to the court to consider whether the witness statement by the appellant and the documents filed were sufficient to prove the claim. I am satisfied that considering the same objectively under the provisions of the SCCA and on what decision a reasonably informed person presented with the facts would come to, I am satisfied that the claim was proved that the amount claimed was by the appellant was due to him from the respondent.
36. Consequently, I find that the appeal has merit and the same is allowed. The judgment of the trial court was erroneous in law and must be and is hereby set aside and substituted with a judgment allowing the appellant’s claim against the respondent before the SCC in the sum of KShs 187,167/= with interest from the date of filing the suit before the SCC.
37. Costs for both this appeal and before the SCC are awarded to the appellant.
38. Orders accordingly.
Delivered, dated and signed on the Virtual Platform, Teams this 8 th day of June 2026 and uploaded on the CTS for access by parties.
ANDAYI W. F.
JUDGE
In the presence of:
... for the Appellant.
Cherop (Ms) h/b for Osore the Respondent (counsel appeared on the virtual platform and the judgment was uploaded afterwards on the CTS as directed).
Ummu: Court Assistant.
ANDAYI W.F.
JUDGE
HCCA No. E668/202411/contract-sale of goods
1. This appeal arises from a judgment of the Small Claims Court (SCC) dated 2 nd May 2024 in which the court dismissed the appellant’s claim for recovery of KShs 187,167/= as the outstanding amount for goods supplied to the respondent, chicken and chicken products allegedly sold and delivered by the appellant to the respondent in the month of July 2023.
2. The respondent filed a response to the claim and denied the claim in toto.
3. Upon analyzing the evidence and considering the law and an authority, the learned Adjudicator concluded that the claim had not been proved and she dismissed the same with costs to the respondent for reasons that the appellant had failed to prove the claim on a balance of probability that he was an unpaid seller under Part V of the Sale of Goods Act (Cap. 31) Laws of Kenya.
4. The appellant was dissatisfied with the judgment and in the memorandum of appeal dated 31 st May 2023 (should be 2024) he raised the following grounds, that is:
a) the trial magistrate erred in law and fact in his determination that special damages were not specifically proved by the appellant.
b) the trial magistrate erred in law and fact in failing to appreciate that the claimant’s evidence remained uncontroverted.
c) the trial magistrate erred in law and fact by failing to consider the documentary evidence in support of the appellant’s claim.
d) the trial magistrate erred in his application of the law and fact to ascertain the burden of proof.
5. The appellant therefore prays that the appeal be allowed and the judgment of the trial court delivered on 2 nd May 2024 be set aside and with an order for costs and that this court may make such further or consequential orders as it deems just.
6. The appeal was disposed of by way of written submissions filed by learned counsels for the parties. The same are considered in the analysis that follows.
7. I have considered the grounds set out in the Memorandum of Appeal and the submissions by learned counsels for the parties. The appellant reduced the four grounds above into one issue for determination, that is whether the appellant proved his claim before the SCC on a balance of probability. The respondent on his part raised four issues as follows:
a) Whether or not there existed an agreement between the appellant and the respondent.
b) Whether the appellant supplied the goods in question to the respondent.
c) Whether or not the respondent was in breach of the agreement in question.
d) Whether or not the respondent should be compelled to compensate the appellant.
8. The issues as set out by the respondent suggest that this court should proceed to consider, re-evaluate and re-analyse the evidence tendered before the SCC and arrive at its own findings and conclusions thereon as held in the case of Selle vs Associated Motor Boat Company (1969) E.A 123) . However, that is not correct because, as will be seen shortly, from the provisions of the Small Claims Court Act (Cap. 10A) Laws of Kenya, this court does not proceed with the appeal by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters before the magistrates’ courts.
9. As a preliminary issue for guidance to learned counsel for the appellant that the SCC is presided over by an Adjudicator and not a magistrate. It is important to bear in mind the vital provisions of the SCCA in order to appreciate and always have at the back of the mind the spirit behind the creation of this very distinguished court because, otherwise it gets meshed up with the operations of the magistrate’s court and there it loses meaning as a different court from the magistrate’s court. In the Kenyan context, an Adjudicator is indeed a magistrate, with full legal training and an admitted advocate of the High Court of Kenya. However, while presiding over the SCC she removes the robes of a magistrate and wears the ordinary garment of an Adjudicator who in the spirit of the SCCA should come down to the level of a reasonably informed person. The reasons are that the SCC is designed to be simple that is, without the strictures of formal procedure and strict evidentiary rules, fast and accessible.
10. First, an appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act . The Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) dealt with the issue of how grounds of appeal ought to be framed when the issue on appeal is a point of law only thus:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
11. On the issue of how an appellate court dealing with an appeal based on points of law only, the Court of Appeal in numerous decisions has reiterated consistently the decision in Stephen Muriungi and Another vs. Republic (1982-88) 1 KAR 360 , where Chesoni Acting JA (as he then was) said at page 366:
‘We would agree with the view expressed in the English case of Martin vs Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 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 as holdings of law or mixed 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’.”
12. Another important feature to bear in mind while considering the appeal is that the SCC Act exempts the court’s proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy (emphasis by underlining supplied). It follows from this provision that it is largely upon the Adjudicator to determine the material to rely upon. Section 32 of the Act provides that the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It further, provides that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence (emphasis by underlining supplied). This means the Adjudicator has the discretion to admit any evidence which may be helpful in establishing whether or not the claim is proved. This provision further limits the province of the appellate court to issues of law only as the appellate court would have no means to overturn the findings of fact by the trial court and substitute them with its own findings.
13. Given the provisions of the SCC Act excluding to a large extent the strict provisions of the law of evidence and the technicalities of procedure under the CPR, I would find that the standard of reasonableness would be that of reasonably informed person. My thinking therefore is that the responsibility of this court when considering an appeal from the SCC is to consider the legality and reasonableness of the decision of the learned Adjudicator. If this court is satisfied that the law was properly considered and applied and a reasonable evaluation of the facts had, then it will not interfere with the findings and determination of the trial court. The converse would also be true. That where the law was not properly considered and/or applied or where the decision does not seem reasonable on the standards of a reasonably informed person from the facts before the court, then this court will interfere.
14. The claim by the appellant was set out in his statement of claim dated 15 th February 2024 and expounded in his witness statement of the same date and documents produced in support of the claim being various invoices, a statement of account and a demand letter. The claim was that that the appellant entered into an agreement with the respondent for the supply by the appellant and purchase by the respondent of chicken and chicken products from the appellant. According to the appellant he did supply the goods to the respondent’s two restaurant outlets, one known as SanjeChulha Restaurant and the other as Qishmish Reataurant on the understanding that the respondent would pay for the same on delivery. The respondent however failed to pay for some of the goods supplied and as at July 2023, the outstanding amount was KShs 54,680/= for the supplu to SanjeChulha Restaurant and KShs 132,487/= for the supply to Qishmish Restaurant making a total of KShs 187,167/=. The claim also included KShs 10,000/= as the cost of issuance of the demand letter and collection fees.
15. In his response dated 18 th March 2024, the respondent stated that he did not owe the appellant any money and further that he denied the appellant’s averments made in the claim and put the appellant to strict proof thereof. The respondent did not file any witness statement or document to discounts the appellant’s claim.
16. The case proceeded by way of the pleadings, witness statements and documents filed by the parties under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya. Section 30 of the SCCA provides that:
S. 30. Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.
17. In the judgment dismissing the claim, the learned Adjudicator considered various aspects of the law relating to sale of goods as well as decided cases.
18. The learned Adjudicator found that on the provisions of sections 3 and 39(1)(a) of the Sale of Goods Act (Cap. 31) Laws of Kenya (SGA) and section 37 of the Evidence Act (Cap. 80 Laws of Kenya, the appellant had not proved that the respondent made an offer to purchase goods from the appellant as no LPOs or any contract had been produced as exhibit. She found that without exchange of LPOs/contracts and invoices “it did not consummate the sale agreement.” She also found that the appellant had failed to establish that he was an unpaid seller under section 39(1)(a) of the SGA. She found further that the appellant only produced invoices and client account statements as his evidence and that the claimant issued invoices “confirming the price of materials.” Further that, “ invoices and LPOs alone do not prove delivery or receipt of goods . A delivery note is proof of delivery of goods. The invoices were not supported by any delivery note or notes to show receipt of the goods stated therein . The claimant may have supplied the goods, but courts of law act on hard evidence not sympathy or speculation. In the absence of delivery note or evidence of receipt of goods, it becomes doubtful whether the goods were delivered.” ( Emphasis by underlining and bold by this court). It would appear that the learned Adjudicator may have imported some writings from another decision inadvertently into this case.
19. It is apparent from the foregoing analysis of the evidence by the learned Adjudicator that she was satisfied that an agreement for the supply of the goods existed but that the appellant had failed to prove that he had supplied the goods to the respondent due to lack of delivery notes or evidence of delivery of the goods.
20. It is however also apparent that the learned Adjudicator in her judgment brought into the claim issues of LPOs which neither of the parties had stated in his pleadings, witness statement or documents. Having been satisfied that an agreement existed between the parties, LPOs (which however were not referred to by either of the parties) were unnecessary to be considered as proof of existence of the agreement.
21. The learned Adjudicator also found wrongly that there were no delivery notes produced to prove delivery when in fact the documents relied upon by the appellant were delivery notes, invoices and statement of account.
22. The delivery notes and invoices were issued by Ledamcha Suppliers, the appellant, and addressed to the respondent Qishmish Restaurant and Sanje Chulha, the names in which the respondent conducts his business. The delivery notes and invoices made available are reduced into the table below:
Date
Delivery Note No.
Invoice No.
Amount (KShs)
28/06/2023
9222
11,000
02/06/2023
8213
5,700
03/05/2023
8548
33,250
23/09/2022
5460
16,500
22/09/2022
5556
42,900
13/09/2022
5347
72,100
08/08/2022
5137
14,375
03/08/2022
5113
17,630
19/10/2022
5909
46,370
25/07/2022
4964
10,750
23. I have set out this list of invoices and delivery notes relied upon by the appellant not show that they proved the outstanding amount but to show that they were made available by the appellant to support his case. In addition to these documents the appellant also provided two statements of account, one for Qishmish Restaurant and the other for Sanje Chulha each for the respective amounts made in the claim before the SCC.
24. The respondent did not dispute any of these documents by way of evidence and the SCC should have taken them to be correct and reliable in accordance with the provisions of the SCCA. When considered these documents, show and there is no dispute that the parties were in business as early as July 2022 and as late as November 2023. The business transactions shown therein were that the appellant was supplying the respondent with chicken and chicken products. Therefore, the existence of an agreement for the business, as claimed by the appellant was proved.
25. Further the learned Adjudicator found that the personal statement relied upon by the appellant was authored for purposes of the case and therefore, was not sufficient to prove liability on a balance of probability “especially considering the supporting documentation relied on was invoices without the evidence of LPOs and delivery of the goods.” (emphasis in bold supplied). It is apparent that the learned Adjudicator was proceeding on her earlier finding that delivery notes had not been made available when in fact they were. What the learned Adjudicator considered was not whether the delivery notes were not sealed by the respondent to signify receipt of the goods, as submitted by learned counsel for the respondent. For the learned Adjudicator her position was that they were not available made available at all. Had she considered that in fact there were delivery notes made available by the appellant, perhaps she would have come to a different conclusion since she had found earlier that the existence of the agreement was not disputed.
26. Learned counsel for the appellant submits that the learned Adjudicator was correct in her findings because she relied on section 37 of the Evidence Act (Cap. 80) Laws of Kenya and the case of Five Continents Ltd v Mpata Investments Ltd [2003] KECA 156 (KLR) . Section 37 of the Evidence Act provides that:
S. 37. Entries in books of account regularly kept in the course of business are admissible whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.
27. In Five Continents Ltd v Mpata Investments Ltd [2003] KECA 156 (KLR) , the Court of Appeal held that:
“The plaintiff mainly relied on the accounts analysis to show the defendant’s indebtedness. That accounts analysis was apparently prepared by the plaintiff for use in this suit. It is not itself a book of account regularly kept in the course of business. Even if it were, such a statement would not alone be sufficient evidence to charge the defendant with liability (see Section 37 of the Evidence Act). It follows that the accounts analysis on which the learned judge relied has no evidential value.”
28. When considering authorities, including decided cases and even text books on admissibility and reliability of evidence, an Adjudicator should always bear in mind the provisions of the SCCA which excludes the strict application of the rules of evidence as conventionally known, which the authority may not be in line with, such as the present case. The above case was therefore not applicable in the case of the SCCA.
29. Relying on the above authority the learned Adjudicator found that the statement of account produced by the appellant was not sufficient to prove liability against the respondent considering the supporting documents relied on were invoices without the evidence of LPOs and delivery of the goods. It was instructive for the learned Adjudicator at this point to recall the provisions of the SCCA that it permits the court to include as evidence any material that it deems credible or trustworthy and further that the court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence. The learned Adjudicator did not offer any reason why she would not have found the written witness statement of the appellant and the supporting documents to be credible and trustworthy. I have found that the issue of LPOs not being made available was not before the SCC for its consideration. What remained was whether the learned Adjudicator was correct to find that there was no proof of delivery of the goods.
30. I have found above that in fact there were delivery notes relied upon by the appellant. What is apparent is that the same were not signed by the respondent or his agent. Learned counsel for the respondent submits the respondent failed to prove that the agreement was enforceable as required under section 6 of the Sale of Goods Act (Cap. 31) Laws of Kenya. Section 6(1) of the Sale of Goods Act (Cap. 31) Laws of Kenya, provides as follows:
S. 6(1). A contract for the sale of any goods of the value of two hundred shillings or upwards shall not be enforceable by action unless the buyer accepts part of the goods so sold, and actually receives them, or gives something in earnest to bind the contract or in part payment, or unless some note or memorandum in writing of the contract is made and signed by the party to be charged or his agent in that behalf.
31. This section deals with the enforceability of a contract for sale of goods by action and not proof of delivery of the goods per se . One way of proof of a contract for the value of two hundred shillings and above is to show that the buyer accepted part of the goods and actually received them. The appellant provided a witness statement that was not challenged that he had supplied the goods. He also provided the supporting documents being the delivery notes, invoices, statements of account and demand notice.
32. Therefore, it was not correct as found by the learned Adjudicator that in the absence of LPOs/contracts there was no proof of existence of the contract. It is true as submitted by learned counsel for the respondent that the onus was upon the respondent to prove this. Parties agreed to proceed by way of documents filed. The appellant filed a witness statement and also made available documents to support his averments in the claim. The respondent did not even provide a witness statement to discount the one made by the appellant. The averments in the response to the claim remained bare denials without support. I am guided by the case of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] KECA 99 (KLR) where the case of Magunga General Stores v Pepco Distributors [1987] 2 KAR 89 is cited where Platt JA stated that:
“First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.”
Thus in Magunga General Stores this court authoritatively enunciated the principle that in an action for a debt or liquidated demand a mere denial or general traverse will not do for all purposes. Applying the same principle a defence in an action of that type that is a mere general traverse cannot be and is not a sufficient defence and also discloses no reasonable defence ...”
33. On account of the foregoing analysis, this court is bound to interfere with the judgment of the learned Adjudicator for reasons that the SCC considered matters it should not have considered and failed to consider matters it should have considered (see the case of Kenya Breweries Ltd v Odoyo [2010] KECA 498 (KLR) .
34. What the learned trial Adjudicator needed only to determine was whether in the estimation of a reasonably informed person, the documentary material produced by the appellant supported the claim or not. On the standard of a reasonably informed person looking at the facts as presented herein, I think the finding should be that the documentary material consisting of the witness statement, the delivery notes, the invoices, the statement of accounts and the demand notice was good enough to support the claim.
35. From the foregoing analysis, I find that the appellant’s claim through his written statement was supported by the documents he made available. On the other hand, the respondent made bare averments in response to the claim, denying the same. He left it to the court to consider whether the witness statement by the appellant and the documents filed were sufficient to prove the claim. I am satisfied that considering the same objectively under the provisions of the SCCA and on what decision a reasonably informed person presented with the facts would come to, I am satisfied that the claim was proved that the amount claimed was by the appellant was due to him from the respondent.
36. Consequently, I find that the appeal has merit and the same is allowed. The judgment of the trial court was erroneous in law and must be and is hereby set aside and substituted with a judgment allowing the appellant’s claim against the respondent before the SCC in the sum of KShs 187,167/= with interest from the date of filing the suit before the SCC.
37. Costs for both this appeal and before the SCC are awarded to the appellant.
38. Orders accordingly.
Delivered, dated and signed on the Virtual Platform, Teams this 8 th day of June 2026 and uploaded on the CTS for access by parties.
ANDAYI W. F.
JUDGE
In the presence of:
... for the Appellant.
Cherop (Ms) h/b for Osore the Respondent (counsel appeared on the virtual platform and the judgment was uploaded afterwards on the CTS as directed).
Ummu: Court Assistant.
ANDAYI W.F.
JUDGE
HCCA No. E668/202411/contract-sale of goods