REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. E017 OF 2025
(Before Hon. Justice Dr. Jacob Gakeri)
FLODIDA CONSTRUCTION
MACHINERY LIMITED....................................................................CLAIMANT
VERSUS
PETER WEPUKHULU WANYONYI…………………….…..…RESPONDENT
JUDGMENT
The claimant commenced the instant suit by a statement of claim dated 21st February 2025 filed on 21st March 2025 alleging that the respondent had diverted its funds amounting to Kshs.28,167,721.00 or thereabout. That the respondent was its Operations Manager at its quarry from August 2023 to December 2024.
The claimant prayed for:
(i) An Order of reversion against the Respondent to refund the claimant Kshs.28,167,721.00 or such sum of the claimant’s diverted funds the claimant proved against the respondent.
(ii) Costs.
(iii) Such other and further Orders the Honourable Court deemed fit and expedient to grant.
Respondent’s case
The respondent denied that he was an employee of the claimant serving as its Operations Manager stating that he was an independent contractor whose task was to source clients to purchase claimant’s goods and he was paid a commission or paid by a third party.
The respondent denied having diverted any funds and although he had been arrested at the instigation of the claimant, and provided a police bond which it was returned as no charges were preferred against him.
However, in his witness statement, the respondent admitted that he was an employee of the claimant and there was no linkage between the payments, delivery note and the respondent.
On cross-examination CWI, Mr. David Owuor Ogeno confirmed that cash payments could only be made at the Kenya Commercial Bank after the claimant migrated from SBM and Paybill 522522 was the collection account and no money for ballast was deposited in the SBM account.
The witness testified that all sales were authorised by four directors himself and co-directors.
The witness, however, had no evidence of any communication with the directors.
CWI testified that in 2023 and 2024 the respondent was the overall operations person at the Quarry but in August 2022, the sales person was Judith Atieno whom the respondent allegedly chased away.
That the respondent was employed in August 2023 and the appointment letter was signed by one Billy Rodgers and witnessed by Paul Odhiambo, a director.
The witness confirmed that the Mpesa statement related to a customer who had deposited cash into the respondents Mpesa account.
That the list of trucks of ballast was extracted from the delivery notes which showed the product and quantity and evidenced the sale.
That payment had to be effected at the bank for a delivery note to issue after confirmation by the respondent via cell phone.
The witness was emphatic that there was no debt.
Respondent’s evidence
On examination-in-chief, the respondent testified that the claimant had not provided evidence to prove that cell phone numbers 070 288344 and 0720 486810 were registered in his name and delivery notes and Mpesa statements bore only one name such as Fred and Wambua at page 4 and delivery notes had no amount paid for the goods.
According to RWI, none of the claimant’s customers had recorded a statement or testified that they sent monies through the cell phone numbers.
Counsel for the claimant opted not to cross-examine the respondent.
Claimant’s submissions
As to whether the Respondent was responsible for receiving or directing payments from the Quarry Counsel submitted that the Respondent was the Operation’s Manager and Co-ordinate its operations and knew the claimant’s customers and breached his fiduciary obligations by directing the customers to deposit cash in his mobile phone number 0720288344.
That the claimant availed delivery notes (exhibits 10-48) certified bank statements and Mpesa statement on payments received by the Respondent. Counsel submitted that the Respondent frauduantly diverted the claimant’s funds to his Mpesa account.
Reliance was placed on Banking Insurance and Finance Union v Cooperative Bank of Kenya Ltd (2017) eKLR and Junction Forex Beureau Ltd v Walid Mohammed Rafigue (2025) KEELRC 2136 (KLR) to reinforce the submission.
That the Respondent did not provide any alternative accounting record. The Respondent did not file submissions.
Analysis and determination
As to whether the respondent was an employee of the claimant, it is clear that none of the parties had any verifiable evidence of an employment relationship or terms.
Be that as it may, although the response to the statement claim stated that there was no employment relationship between the parties and that the respondent was an independent contract or the respondent provided no evidence to establish the allegation and in any event under paragraph 5 of his written witness statement signed on 28th January 2026, the respondent admitted that he discharged his duties diligently and faithfully in accordance with the contract of employment and his assigned duties and responsibilities.
This admission placed beyond doubt that the respondent was an employee of the claimant.
According to the claimant, the respondent who was based at the claimant’s quarry directed customers to deposit cash in cell phone numbers 0720288344 and 0720486810 as opposed to KCB Account Number 1295614952 and the sum of Kshs.28,167,721.00 was deposited.
To reinforce its claim, the claimant attached Mpesa statements of the Respondent’s cell phone number 0720288344 which showed that from 1st August 2023 to 14th December 2024, he had received the sum of Kshs.30,496,214.40
The statements were provided by Safaricom PLC pursuant to a court order issued on 12th June 2025.
Although the respondent opposed the claimant’s application for discovery by furnishing of Mpesa statements for cell phone number 0720288344 by Safaricom PLC, he did not disown the cell phone number or contest the Mpesa statements from Safaricom P.L.C which identified him by the name Peter Wanyonyi Wephukulu as the subscriber to whom the cell phone number was registered.
From the statement, it is clear that the cell phone received large sums of money consistent with the claimant’s claim that the respondent was receiving cash from its clients who purchased quarry materials.
Regrettably, the claimant did not furnish the court with any other document to demonstrate how the figures in the claimant’s written witness statement were arrived at and where they came from.
The crucial delivery notes were not attached to justify the alleged receipts and the purpose of payment.
More significantly, the claimant did not evidentiary demonstrate how it arrived at the conclusion that the respondent received Kshs.28,167,721.00 in his capacity as an employee and was therefore liable to account to the employer.
Other than Mr. Ben Ouma Otieno who swore an affidavit on 13th May 2025 attesting that he had sent cash to the respondent on 25 occasions to purchase quarry materials, no other customer swore an affidavit or testified as having sent money to the respondent’s cell phone number.
Puzzlingly, although Mr. Ben Ouma Otieno’s statements appeared truthful in that he did send cash to the respondent’s cell phone numbers, the Affidavit was not commissioned and was thus of no probative value because Mr. Ben Ouma Otieno did not testify in the matter.
Thus, the claimant availed no verifiable evidence to prove who its clients were, that they purchased quarry materials and deposited money in the respondents Mpesa account cell phone number 0720288344.
Audited or unaudited financial statements of the company for the years 2023 and 2024, would have revealed the loss suffered by the company in light of the quarry materials purchased by identifiable clients.
Finally, counsel for the claimant did not cross-examine the respondent before the respondent closed his case.
It is trite law that he who alleges bears the burden to prove the allegations.
Section 107 of the Evidence Act provides:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
Under Section 108 of the Act
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Finally Section 109 of the evidence Act states:
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
In Anne Wambui Ndiritu V Joseph Kiprono Rokoi & another [2004] KECA 65 (KLR) the Court of Appeal held:
“As a general proposition, the legal burden of proof lies upon the party who invokes the aid of the law and substantiary asserts the affirmative of the issue. This is the purport of Section 107(1) of the Evidence Act…
There is however the evidential burden that 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 Sections 109 and 112 of the Act… The two sections carry forward the often repeated evidential adage ‘he who asserts must prove’ ”.
Similarly, in Tadis Travel & Tours Ltd & another V Astral Aviation Ltd [2015] KECA 403 (KLR) the court held:
“[18] Of relevance to this appeal is the general rule that the standard of proof required in civil claims is proof on a balance of probabilities or preponderance of probability. This means that the claimant must adduce evidence that leads the court to a conclusion that it is more probable than not, that the facts happened as alleged by the claimant. Where there are two versions and there is a probability of both versions being true, or both being untrue then the burden of proof is not discharged.
[19] In an action anchored on a contractual relationship the burden of proving the existence of a contract, performance of conditions precedent, breach and damages, lies with the claimant…”
Finally, in Karugi & another V Kabiya & 3 Others [1983] KECA 38 (KLR), the Court of Appeal held:
“…The burden on the plaintiff to prove his case remains the same, though it is true that where the matter is not defended, the burden may become easier to discharge…”
In the instant case the claimant bore the evidential burden and other than the certified Mpesa statements for Wanyonyi Wepukhulu from Safaricom PLC Peter for the period 1st August 2023 to 16th December 2024, the claimant did not provide any other form of evidence to demonstrate its relationship with the respondent or its quarry business or receipt of monies from any of its clients or customers contrary to the claimant’s directions.
The Mpesa statement lacked clarity as to whom the claimant’s customers or clients were and what they purchased from the claimant but the respondent received payment irregularly.
If the respondent was misrepresenting himself as the owner of the quarry, was he acting fraudulently? Did he defraud the claimant company or received the alleged cash innocently. In other words, what wrong did the respondent commit?
This is important because if the respondent acted fraudulently such allegations are of a serious nature and must be strictly pleaded and proved on a standard higher than the ordinary preponderance of probabilities as held in Emfil Ltd V Registrar of titles & 2 Others [2014] eKLR.
See also, John Mbogua V Simon Parkoyiet Mokare, Karempu Kaata Nkama Group Ranch Chief Land Registrar & Attorney General [2017] KECA 156 (KLR) and Pravinchandra Jamnadas Kakad V Habayaweza Mawazo Anne (suing as Legal Representative to the Estate of Lucas Oluoch Mumia [2025] KECA 1757 (KLR).
In Kakads case (Supra) the court stated:
“… A higher burden and standard applies to fraudulent misrepresentation. This is because fraud requires proof of an element of intention. In order to prove fraud, it must be shown that the person making the false statement knew that it was false and made the statement with the intention of deceiving the other party…”
Puzzlingly, the claimant did not allege or testify that the respondent misappropriated or unjustly enriched himself by virtue of his position.
Contrary to the claimant’s averment under paragraph 11 of the statement of claim that delivery notes and security logbooks existed, none were availed to the court.
Similarly, although the respondent’s counsel was furnished with a hard copy of delivery notes a few days before the hearing of the respondent’s case none were availed to the court and no effort was made to avail the materials.
For the foregoing reasons, it is the finding of the court that the claimant failed to evidentiary demonstrate the amounts allegedly received by the respondent was paid by the claimant’s customers who had purchased quarry materials from its quarry.
Being a claim for a specific sum of money it was incumbent upon the claimant to prove its entitlement to each and every deposit in the respondent’s Mpesa account, which the claimant failed to do.
From the foregoing, it is discernible that the claimant’s suit against the respondent is unproven and it is accordingly dismissed.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU ON THIS 22ND DAY OF APRIL 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
FOOTNOTES
ENDNOTES
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