1. This appeal emanates from the judgement and decree of Hon. P.K. Rotich, Senior Principal Magistrate delivered on 14th July, 2023 in Milimani CMCC No. E10718 of 2021.
2. The grounds of appeal presented by the Appellant Company vide the Memorandum of Appeal dated 3rd August, 2023, upon which it seeks to upset the judgement and decree of the lower court are as follows:
1. That the Honourable trial Magistrate erred in fact and law in failing to take into consideration the evidence tendered by the Appellant in support of its claim thereby occasioning a miscarriage of justice.
2. That the Honourable trial Magistrate erred in fact in finding that the Appellant did not lead any evidence in support of its claim for breach of contract and the award sought thereof.
3. That the Honourable trial Magistrate failed to appreciate the breach of contract by the Respondent and basically relied on technicalities in dismissing the Appellant’s suit.
4. That the Honourable trial Magistrate erred in fact and law by failing to appreciate that there was no other evidence negating the evidence of the Appellant that indeed premix was supplied to the Respondent and not paid for to the tune of the award claimed.
5. That the Honourable trial Magistrate erred in fact and law by failing to appreciate that in civil matters, the burden (standard?) of proof is that of a balance of probabilities and not beyond reasonable doubt and that the Appellant had proved its case on the required balance.
3. The Appellant proposes that the appeal be allowed and that this court sets aside the trial court’s judgement and proceeds to enter judgement for the Appellant as was prayed for in the trial court.
4. The present appeal was canvassed by way of written submissions. Both sides complied with the court’s directions by filing their respective submissions.
5. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Sielle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the evidence adduced in the Magistrate’s Court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
6. In Sielle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
7. The matter before trial court, a claim based on breach of contract, was commenced by the Appellant (the Plaintiff before the lower court) by way of an amended plaint dated 14t January, 2022 in which it sought the following reliefs:
a. An order be issued directed to the Defendant to pay to the Plaintiff a sum of Ksh.10,495,000/-being the cost of premix supplied to the Defendant by the Plaintiff.
b. An order be issued directed to the Defendant to pay to the Plaintiff general damages for breach of contract.
c. The costs of this suit to be provided.
d. Interest on a and b above at court rates.
8. The Respondent (the Defendant before the lower court) resisted the suit by filing an amended statement of defence dated 2nd January, 2022 and sought that the same be dismissed with costs.
9. In the matter before the trial court, the Appellant called its director Michael Abdul Naim as its witness. The witness testified and adopted the contents of his statement dated 23rd August, 2021 as his evidence in chief.
10. In his statement, the Appellant’s witness stated that the Appellant was in the business of selling premix, a substance used to construct tarmac roads, that is a mixture of gravel and bitumen.
11. The witness stated that in the year 2019, the Respondent requested to be supplied by the Appellant with premix and the Appellant entered into a verbal agreement with the Respondent to that effect. The agreement between the parties was that the Respondent pays for the premix within one month of each delivery.
12. The witness told the trial court that the premix was subsequently supplied and delivered during the period between 15th May, 2019 and 14th November, 2019. The Respondent partly paid for the deliveries leaving an outstanding balance of Ksh.10,495,000/-, as shown below:
Date Invoice no. Tonnes Amount Amount paid
15/5/19 896 645 5,482,500 7,800,000
4/7/19 904 795 6,757,500 3,675,000
20/8/19 921 645 5,482,500 5,247,500
14/11/19 941 1470 12,495,000 3,000,000
Total 30,217,500 19,722,500
13. From the testimony of the witness, what the Appellant sought to recover was the unpaid balance of Ksh.10,495,000/- (i.e. Ksh.30,217,500/- less the paid amount of Ksh.19,722,500/-), for which the Appellant issued invoice number 1047 on 2nd July, 2021, which the Respondent failed to pay, necessitating the suit before the trial court.
14. The witness produced the following documents before the trial court in support of the Appellant’s case:
- Form CR12 of the Respondent.
- The Respondent’s balance details drawn by the Appellant’s account.
- Bundle of invoices.
- Bundle of delivery notes.
- The Appellant’s special resolution to institute the suit.
15. The Appellant thus prayed for judgement for the liquidated amount of Ksh.10,495,000/- together with costs and interest.
16. The Respondent called its director Chege Karanja as its witness.
17. The witness adopted the contents of his witness statement dated 30th October, 2021 in which he admitted entering into a verbal contract with the Appellant, who was introduced to the Respondent by a broker, for the supply of premix. The witness stated that at the time, the Respondent had a contract to carpet roads in Narok County, which project was completed in the year 2019.
18. The Respondent outlined the material supplied to it by the Appellant, for which he stated he fully paid for, as follows:
Invoice date Invoice No. Invoiced amount Amount paid Payment date
15/5/19 896 7,800,000 7,800,000 16/5/19.
4/7/19 906 3,675,000 3,675,000 5/7/19.
2/8/19 921 5,247,500 5,247,500 20/9/19.
14/11/19 941 3,000,000 3,000,000 14/11/19.
19. The position of the Respondent was therefore that all the material that the Appellant supplied to the Respondent between May, 2019 and November, 2019 was fully paid for within the agreed timelines. That as such, the Respondent was not indebted to the Appellant as was pleaded or at all.
20. The Respondent’s witness produced the following documents in support of the Respondent’s case before the trial court:
- The Respondent’s business registration certificate.
- Narok road carpeting tender.
- Delivery notes between 26th June, 2019 and 18th July, 2019.
- Evidence of payment.
21. In his judgement rendered on 14th July, 2022, the learned trial Magistrate, after considering the evidence before him and the record, stated as follows:
“The issue in this matter is whether the Defendant owes the Plaintiff the sum of Ksh.10,495,000/- claimed herein. The claim is not supported by the relevant invoices and delivery notes or any other document. It is therefore my finding that the Plaintiff has not proved the claim of Ksh.10,495,000/- on the balance of probabilities.”
22. With that, the court went on to dismiss the Appellant’s case with costs to the Respondent.
23. I have had a look at the documents that the Appellant produced before the trial court. Although in its list of documents the Appellant refers to invoices and delivery notes, all I see are what appears to be five invoices, which are so faint that the amounts stated therein are not discernible. There are no delivery notes that are included in the record of appeal as having been produced by the Appellant.
24. On the other hand, the Respondent produced delivery notes and evidence of payment. The tabulation of the Respondent indicates that the payments corresponded with the deliveries and the invoices that the Appellant issued.
25. In civil cases, the burden of proof lies on the party that makes an assertion against another party. The legal burden of proof in a civil case was discussed in the case of Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR where the court stated as follows:
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(1) of the Evidence Act Chapter 80 Laws of Kenya. Furthermore, the evidential burden … is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the Act that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
26. What amounts to proof on a balance of probabilities was discussed by Kimaru J. (as he then was) in the case of William Kabogo Gitau v George Thuo & 2 others [2010] 1 KLR 526 where the court held as follows:
“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
27. In the same breath, the Court of Appeal in the case of Palace Investment Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR observed as follows:
“Denning J. in Miller v Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say:
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.””
28. In view of the above, the burden of proof lay with the Appellant to establish its claim, on a balance of probabilities, that it supplied the Respondent with the premix and that the Respondent failed to pay the amount claimed.
29. The documents produced by the Respondent did not, in my view adequately address its claim against the Respondent. That being so, the Appellant did not discharge its burden of proving, on a balance of probabilities, that the Respondent was indebted to it to the tune of Ksh.10,495,000/-. In the circumstances, I have no reason to fault the learned trial Magistrate on the findings that he reached.
30. In the result, I am of the persuasion that the instant appeal is devoid of merit. I proceed to dismiss it with costs to the Respondent, which I assess at Ksh.40,000/-.
31. This file is closed.
DELIVERED (virtually), DATED & SIGNED this 3rd day of July, 2025.
JOE M. OMIDO
JUDGE
FOR THE APPELLANT: Ms. Gwembere for Ms. Nyongesa.
FOR THE RESPONDENT: Ms. Buluma.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
2. The grounds of appeal presented by the Appellant Company vide the Memorandum of Appeal dated 3rd August, 2023, upon which it seeks to upset the judgement and decree of the lower court are as follows:
1. That the Honourable trial Magistrate erred in fact and law in failing to take into consideration the evidence tendered by the Appellant in support of its claim thereby occasioning a miscarriage of justice.
2. That the Honourable trial Magistrate erred in fact in finding that the Appellant did not lead any evidence in support of its claim for breach of contract and the award sought thereof.
3. That the Honourable trial Magistrate failed to appreciate the breach of contract by the Respondent and basically relied on technicalities in dismissing the Appellant’s suit.
4. That the Honourable trial Magistrate erred in fact and law by failing to appreciate that there was no other evidence negating the evidence of the Appellant that indeed premix was supplied to the Respondent and not paid for to the tune of the award claimed.
5. That the Honourable trial Magistrate erred in fact and law by failing to appreciate that in civil matters, the burden (standard?) of proof is that of a balance of probabilities and not beyond reasonable doubt and that the Appellant had proved its case on the required balance.
3. The Appellant proposes that the appeal be allowed and that this court sets aside the trial court’s judgement and proceeds to enter judgement for the Appellant as was prayed for in the trial court.
4. The present appeal was canvassed by way of written submissions. Both sides complied with the court’s directions by filing their respective submissions.
5. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Sielle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the evidence adduced in the Magistrate’s Court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
6. In Sielle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
7. The matter before trial court, a claim based on breach of contract, was commenced by the Appellant (the Plaintiff before the lower court) by way of an amended plaint dated 14t January, 2022 in which it sought the following reliefs:
a. An order be issued directed to the Defendant to pay to the Plaintiff a sum of Ksh.10,495,000/-being the cost of premix supplied to the Defendant by the Plaintiff.
b. An order be issued directed to the Defendant to pay to the Plaintiff general damages for breach of contract.
c. The costs of this suit to be provided.
d. Interest on a and b above at court rates.
8. The Respondent (the Defendant before the lower court) resisted the suit by filing an amended statement of defence dated 2nd January, 2022 and sought that the same be dismissed with costs.
9. In the matter before the trial court, the Appellant called its director Michael Abdul Naim as its witness. The witness testified and adopted the contents of his statement dated 23rd August, 2021 as his evidence in chief.
10. In his statement, the Appellant’s witness stated that the Appellant was in the business of selling premix, a substance used to construct tarmac roads, that is a mixture of gravel and bitumen.
11. The witness stated that in the year 2019, the Respondent requested to be supplied by the Appellant with premix and the Appellant entered into a verbal agreement with the Respondent to that effect. The agreement between the parties was that the Respondent pays for the premix within one month of each delivery.
12. The witness told the trial court that the premix was subsequently supplied and delivered during the period between 15th May, 2019 and 14th November, 2019. The Respondent partly paid for the deliveries leaving an outstanding balance of Ksh.10,495,000/-, as shown below:
Date Invoice no. Tonnes Amount Amount paid
15/5/19 896 645 5,482,500 7,800,000
4/7/19 904 795 6,757,500 3,675,000
20/8/19 921 645 5,482,500 5,247,500
14/11/19 941 1470 12,495,000 3,000,000
Total 30,217,500 19,722,500
13. From the testimony of the witness, what the Appellant sought to recover was the unpaid balance of Ksh.10,495,000/- (i.e. Ksh.30,217,500/- less the paid amount of Ksh.19,722,500/-), for which the Appellant issued invoice number 1047 on 2nd July, 2021, which the Respondent failed to pay, necessitating the suit before the trial court.
14. The witness produced the following documents before the trial court in support of the Appellant’s case:
- Form CR12 of the Respondent.
- The Respondent’s balance details drawn by the Appellant’s account.
- Bundle of invoices.
- Bundle of delivery notes.
- The Appellant’s special resolution to institute the suit.
15. The Appellant thus prayed for judgement for the liquidated amount of Ksh.10,495,000/- together with costs and interest.
16. The Respondent called its director Chege Karanja as its witness.
17. The witness adopted the contents of his witness statement dated 30th October, 2021 in which he admitted entering into a verbal contract with the Appellant, who was introduced to the Respondent by a broker, for the supply of premix. The witness stated that at the time, the Respondent had a contract to carpet roads in Narok County, which project was completed in the year 2019.
18. The Respondent outlined the material supplied to it by the Appellant, for which he stated he fully paid for, as follows:
Invoice date Invoice No. Invoiced amount Amount paid Payment date
15/5/19 896 7,800,000 7,800,000 16/5/19.
4/7/19 906 3,675,000 3,675,000 5/7/19.
2/8/19 921 5,247,500 5,247,500 20/9/19.
14/11/19 941 3,000,000 3,000,000 14/11/19.
19. The position of the Respondent was therefore that all the material that the Appellant supplied to the Respondent between May, 2019 and November, 2019 was fully paid for within the agreed timelines. That as such, the Respondent was not indebted to the Appellant as was pleaded or at all.
20. The Respondent’s witness produced the following documents in support of the Respondent’s case before the trial court:
- The Respondent’s business registration certificate.
- Narok road carpeting tender.
- Delivery notes between 26th June, 2019 and 18th July, 2019.
- Evidence of payment.
21. In his judgement rendered on 14th July, 2022, the learned trial Magistrate, after considering the evidence before him and the record, stated as follows:
“The issue in this matter is whether the Defendant owes the Plaintiff the sum of Ksh.10,495,000/- claimed herein. The claim is not supported by the relevant invoices and delivery notes or any other document. It is therefore my finding that the Plaintiff has not proved the claim of Ksh.10,495,000/- on the balance of probabilities.”
22. With that, the court went on to dismiss the Appellant’s case with costs to the Respondent.
23. I have had a look at the documents that the Appellant produced before the trial court. Although in its list of documents the Appellant refers to invoices and delivery notes, all I see are what appears to be five invoices, which are so faint that the amounts stated therein are not discernible. There are no delivery notes that are included in the record of appeal as having been produced by the Appellant.
24. On the other hand, the Respondent produced delivery notes and evidence of payment. The tabulation of the Respondent indicates that the payments corresponded with the deliveries and the invoices that the Appellant issued.
25. In civil cases, the burden of proof lies on the party that makes an assertion against another party. The legal burden of proof in a civil case was discussed in the case of Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR where the court stated as follows:
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(1) of the Evidence Act Chapter 80 Laws of Kenya. Furthermore, the evidential burden … is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the Act that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
26. What amounts to proof on a balance of probabilities was discussed by Kimaru J. (as he then was) in the case of William Kabogo Gitau v George Thuo & 2 others [2010] 1 KLR 526 where the court held as follows:
“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
27. In the same breath, the Court of Appeal in the case of Palace Investment Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR observed as follows:
“Denning J. in Miller v Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say:
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.””
28. In view of the above, the burden of proof lay with the Appellant to establish its claim, on a balance of probabilities, that it supplied the Respondent with the premix and that the Respondent failed to pay the amount claimed.
29. The documents produced by the Respondent did not, in my view adequately address its claim against the Respondent. That being so, the Appellant did not discharge its burden of proving, on a balance of probabilities, that the Respondent was indebted to it to the tune of Ksh.10,495,000/-. In the circumstances, I have no reason to fault the learned trial Magistrate on the findings that he reached.
30. In the result, I am of the persuasion that the instant appeal is devoid of merit. I proceed to dismiss it with costs to the Respondent, which I assess at Ksh.40,000/-.
31. This file is closed.
DELIVERED (virtually), DATED & SIGNED this 3rd day of July, 2025.
JOE M. OMIDO
JUDGE
FOR THE APPELLANT: Ms. Gwembere for Ms. Nyongesa.
FOR THE RESPONDENT: Ms. Buluma.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.