REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CIVIL APPEAL NO. E080 OF 2024
FUNDI FLEX LIMITED …………………………….……………………..…….. APPELLANT
VERSUS
THE SCHOOL MANAGEMENT COMMITTEE
IKATHIMA PRIMARY SCHOOL
SAMUEL MWANGANGI
BEATRICE MWASI ………………………………………………………….RESPONDENTS
JUDGEMENT
1. This appeal arises from the proceedings and Judgment in the Small Claims’ Court Kitui.
Background Information
2. The appellant who was the plaintiff in the Lower Court instituted a suit in the vide a statement of claim dated 24th April, 2024 seeking judgement in the sum of Kshs.413,500/=,damages for breach of contract and costs of claim.
3. The claimant claim is that the school Ikathima Primary School owes them Kshs. 283, 500/= as a result of the claimant supplying to the school water worth 950 m' from mid 2017 to October 2021 when a faulty water meter was replaced and another 940 m' consumed as of 14th September 2023. The balance of Kshs. 130, 000/= arises as a result of the loss and damage which occurred on the 11th October 2023 as a result of an alleged hostile mob attack coordinated by the respondents. The damage that was done on the claimant's motor vehicle was assessed at Kshs. 120, 000/= hence the claim for Kshs. 413, 500/=.
2. The respondents filed a response to the claim dated 22nd May 2024 and they denied the averments by the claimant. The respondent stated that they have never had any contractual relationship-with-the claimant. They stated that the claimant had a contractual relationship with the county government of Kitui where they oversaw the running of the borehole on behalf of the County Government of Kitui.
4. The respondents further averred the claimant had been contracting with Ikathima Water Project in a management contract wherein the claimant managed the borehole on behalf of Ikathima water project. This was vide contracts dated 15th July 2017 and 3rd July 2023. It is their case that they were not privy to any of those contracts as they were neither parties nor participants in the contracts.
5. The respondents further denied being served with any water bills by the claimant save for 3rd July 2023 when they received a water bill from the claimant. That brought to their knowledge the existence of the management contract dated 3rd July 2023 between the claimant and Ikathima water project. They maintained that prior to that, the school used the borehole on the pretext that the same was sunk for the benefit of the community and the school was using it by the virtue of the same having been sunk for community’s benefit
6. The pleadings closed and the matter was set down for hearing.
Evidence
7. The claimant testified and called one witness. CW1 Peter Mugo testified that he is Engineer for Fundi Fix based in Kyuso. He adopted his witness statement dated 24.04.2024 as evidence in chief. He relied on list of documents dated 19.7.2012 and further list of documents dated 23.07.2024.
8. During cross examination by Mr.Kuria for the respondent CW1 confirmed that he is claiming Kshs.413,500/= from 1st respondent and he has not availed water bills served upon the respondent. He confirmed that he has not availed any agreement between Fundi Fix and the school. CW1 further confirmed that the contract of 2017 was between Fundi Fix and Ikathima Water Project and the school does not appear anywhere in the contract. He confirmed that it was only for repair and maintenance and it only bind parties to the said contract.
9. During re-examination CW1 clarified that Fundi fix claimed from the school because it was a beneficiary of the project.
10. CW2 Anne Karata testified that she works for Fundi Fix as a Technical Manager. She adopted her statement dated 24.04.2024 as evidence in chief. She also relied on her list of documents produced by CW1.
11. During cross examination by Mr. Kuria for respondent, CW2 clarified that they invoiced the school since 2017. She confirmed that they have not produced any invoices before court. She confirmed maintenance contract expired in 2018 and was renewed in 2018. She confirmed that she has availed evidence of renewal. CW2 clarified that she is referring to contract entered between Ikathima Community Water Project and Kitui County and Fundifix on July 2023.
12. CW2 clarified that the borehole is outside the school premises. Their vehicles were damaged. They have availed a valuation report or damage assessment report to show the damage and exhibit 8 is their proof of damage and they reported to the police the incident.
13. The claimant closed their case and matter proceeded to respondents hearing.
14. RW1 Samuel Mwangangi testified that he is a teacher and the headteacher of Ikathima Primary School. He adopted his statement dated 18.07.2024 as evidence in chief and relied on list of document dated 22.05.2024.
15. RW1 testified further dispute arose after 2nd agreement was signed on 3rd July,2023 between County Government and Ikathima Community and Fundi fix. RW1 testified that it is when the billing of the school started. It was presented for July 2023 and first bill was 7050/= and followed by bill of August 5700/=. He referred to agreement dated 3/7/2023. RW1 testified that at page 24 there was part for head teacher to sign, chairman of the board was to sign. He testified that the same was not signed because the school management was not invited to that meeting dispite the school being the owner of the borehole. RW1 testified that there was no contract between Fundi fix and the school.
16. During cross examination by Ms.Kendi RW1 clarified that Fundi Fix maintains the Ikathima borehole and the school is not supposed to pay for the maintainance. RW1 clarified that Ikathima Primary School is a beneficiary of the project. He clarified there was agreement between Ikathimani Water Project and Fundi fix and that is how the school benefitted from the project. He clarified after expiry Fundi fix continued to maintain the borehole.
17. RW1 clarified that the screenshot is true conversation between him and CW2 Ann Kavata and he accepted to pay the amount of water for month of July 2023 and he has not paid anything to date.
18. At conclusion of hearing the learned magistrate delivered a judgement dated 29th August,2024 as follows;
“In light of the foregoing, the claimant having failed to prove the existence of any contract between the claimant and the respondents, and the 2nd and 3rd respondent not being culpable for the violent acts meted out against the claimant, it automatically follows that the claim fails in its entirety. As such the same is dismissed with costs to the respondents.”
Appeal
19. The appellant was dissatisfied with the above Judgment dated 29th August,2024 delivered by learned magistrate and filed this appeal. It is based on the following grounds which are pleaded on the Amended Memorandum of Appeal dated 18th November,2024:
i. The Honourable Court erred in law and in fact in holding that the claimant’s claim had no merits and dismissed it.
ii. That the Honourable Court erred in failing to uphold that there was an agreement between the parties herein for supply of services.
iii. That the honourable small claim’s court erred in law and fact by failing to recognize that the respondent had acknowledged some of the Water Bills sent to them and willing to pay.
iv. That the subordinate court erred in law and fact by failing to hold that the respondents were in breach of agreement/contract by failing to pay for the water bill.
v. The honourable court erred in fact and law in failing to make a clear finding that the appellant’s services were received by the school administration thus erred in finding that the school ought to not pay for anything.
vi. That the honourable court erred in law and fact in finding that the appellant’s lorry was not damaged as a result of the respondents actions.
20. The appellant proposed that the appeal be allowed and cost of appeal be borne by the respondent.
21. The appeal was canvassed by way of written submissions. I have considered the submissions. The appellant filed written submissions dated 17th April,2024 through the firm of Kimathi & Muchiri Advocates. The respondents filed written submissions dated 26th June 2025 by Senior State Counsel Peter Kuria.
Appellant’s Submissions
22. The appellant submitted that the trial court erred in finding that there was no agreement between the parties despite clear evidence that the Respondent school received and benefited from the Appellant’s water supply and borehole maintenance services.
23. It was submission of the appellant that both parties’ witnesses confirmed that the school benefited from the Ikathima water project and that the Appellant continued maintaining the borehole even after the original contract expired.
24. It was further submission of the appellant that the Respondents also acknowledged communication regarding outstanding water bills and admitted that payment for some water services had been promised though never made. The Appellant relied on text messages exchanged between the Respondents and the Appellant’s employee, where the headteacher undertook to pay the allocated water capitation funds.
25. The Appellant submitted that these admissions demonstrated that the water bills were not disputed and that the Respondents’ denial of liability was untenable. It was further argued that the trial court erred in failing to recognize the admitted sums owed to the Appellant.
26. The Appellant submitted that the contracts need not always be in writing and cited decisions in Ali Abdi Mohamed v Kenya Shell & Company Limited [2017] eKLR and Abdulkadir Shariff Abdirahim & another vs. Awo Shariff Mohamed t/a AS Mohamed Investments [2014] eKLR, where courts held that agreements may arise through conduct and communication between parties.
27. The appellant submitted that the Respondents requested and received water services for consideration, thereby satisfying the essentials of a contract under Section 3(1) of the Sale of Goods Act. Even after the expiry of the formal agreement between Fundifix and Ikathima Water Project, services continued to be supplied based on oral requests by the Respondents, creating an implied contract through the conduct of the parties.
28. The appellant urged this court to hold that the Respondents were liable for payment because they received and benefited from the services, acknowledged some of the bills, and promised payment for the outstanding amounts.
29. The appellant submitted on that the trial court erred in failing to recognize that the Respondents had acknowledged the outstanding water bills. The Appellant relied on a mobile phone conversation between the Respondents’ witness (RW1) and the Appellant’s employee, Ann Kavata (CW2), where the headteacher admitted that payment would be made once funds were released, specifically stating that he would “pay all the amount allocated for water capitation for third term.” The Appellant submitted this amounted to an admission of liability and that the bills were never disputed.
30. The Appellant further submitted that, under Order 13 Rule 2 of the Civil Procedure Rules, the court ought to have entered judgment on admission based on the acknowledged debt. Reliance was placed on authorities including Family Bank Kenya Ltd v Kamwara & Another, Peters v Sunday Post Ltd, and Selle & Another v Associated Motor Boat Co. regarding the duty of an appellate court to re-evaluate evidence and correct errors made by the trial court.
31. The Appellant submitted that the trial court erred in failing to find that the Appellant’s lorry was damaged due to the Respondents’ actions. it was submitted that veidence was led showing that pupils allegedly attacked the Appellant’s employees and motor vehicle with stones on the instructions of the headteacher, resulting in injuries to Ann Kavata and damage to the vehicle. The appellant submitted copies of Repair receipts, police reports, treatment notes, and medical reports were produced in support of the claim.
32. The Appellant concluded that the Respondents had requested and benefited from the supplied services, had admitted all or part of the debt, and should therefore be held liable for payment as well as for damages arising from the destruction of the Appellant’s motor vehicle. The Appellant urged the appellate court to allow the appeal and award costs of both the trial suit and the appeal.
Respondent’s submissions
33. The respondent submitted on whether there was contract between appellant and respondents. The respondents submitted that no contractual relationship existed between them and the appellant and therefore no breach of contract was proved. They contend that the invoices relied upon by the appellant arose from contracts between the appellant, the County Government of Kitui, and Ikathima Community Water Project, to which the respondents were not parties.
34. Respondents further submit that the earlier contract only related to maintenance of the water supply scheme, lasted one year, and did not authorize the appellant to charge water fees or enter contracts on behalf of the project. Relying on cases including Tweedle v Atkinson and William Muthee Muthami v Bank of Baroda, they submitted that contractual rights and obligations only bind parties to a contract, and the appellant failed to prove offer, acceptance, and consideration between itself and the respondents.
35. The respondents further submitted that the WhatsApp message from the 2nd respondent could not create contractual obligations because the school’s Board of Management, not the headteacher, had authority to contract on behalf of the school. They maintain that only two invoices were ever issued before water supply was disconnected and that these were merely forwarded to the Board for discussion. Citing Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited and Ali Abdi Mohamed v Kenya Shell & Company Limited, they submit that although contracts may sometimes be implied through conduct, the appellant failed to show any intention by the parties to enter into a binding agreement or agree on payment terms. They therefore support the trial court’s finding that no enforceable contract existed between the appellant and the respondents.
36. On the claims for damage to property and assault, the respondents submit that the appellant failed to prove that the respondents caused the alleged damage to the vehicle or injuries to the employee. They submit that no ownership documents for the vehicle were produced, the vehicle itself was not identified, and no valuation report or evidence of the extent of damage was tendered. They relied on Bonham-Carter v Hyde Park Hotel Ltd for the principle that special damages must be specifically proved.
37. The respondents submit that the appellant only produced an OB extract and medical records but failed to link the respondents to the attack or show that criminal charges were ever brought against them. They therefore pray for the appeal to be dismissed with costs.
Analysis and Determination
38. From the appeal, evidence on record and submissions, the main issues which arise for determination are:
(1) Whether there was contractual agreement between the appellant and respondents.
(2) Whether the appellant proved its case against the respondent, and if so what remedies are available.
(3) Whether the appellant proved the claim of damage of their property and assault by respondents
39. The duty of this court as the first appellate court is well settled by a line of authorities from this court and the Court of Appeal. In James Odera T/A Odera & Associates -vs- John Patrick Machira & Company Advocates (2013) eKLR, the Court of Appeal stated that:
“This being a first appeal we are reminded of our primary role as a 1st appellate court, namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusion reached by the learned trial Judge are to stand or not and give reasons either way.”
I however note that the appeal arises from the proceedings in the small claims court. Section 38 of the Small Claims act provides:
(i) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.”
(ii) an appeal from any decision or order referred to in subsection (1) shall be final.
So, appeals from small claims Court to this Court are on points of Law only and the Court need not consider them.
40. Whether there was contractual agreement between the appellant and respondents.
The claimant/appellant through a statement of claim dated 24th April 2024 instituted the instant suit seeking judgement for a sum of Kshs.413,500/=. The appellant contention is that the 1st respondent Ikathima Primary school owed them Kshs.283,500/= as a result of appellant supplying to the school water from mid 2017 to October 2021. The appellant is seeking damages for breach of contract.
41. This court first need to establish whether there was contractual agreement between the appellant and 1st respondent. From the evidence on record the appellant relied on minutes of a meeting undertake on 29th September,2023 and agreement between Fundi Fix and Ikathima Water Project to support his claim.
42. It is clear from evidence on record that the appellant entered into an agreement with Ikathima Water Project for management of borehole on behalf of Ikathima water project. This was vide contracts dated 15th July 2017.
43. The appellant during his testimony before trial court testified and confirmed to this court that the contract of 2017 was between Fundi Fix and Ikathima Water Project and the school does not appear anywhere in the contract. He also confirmed that it was only for repair and maintenance and it only binds parties to the said contract.
44. From the claimant own testimony before the trial court it is clear that there was no contract between appellant and 1st respondent. Section 107 of the Evidence Act provides that:
“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 exists.”
45. I therefore agree with trial court findings that there was no proof produced between claimant and respondent that respondents owed claimant any obligation. It is my considered view that the appellant failed to prove on balance of probabilities existence of contract between appellant and respondents to entitle claimant to damages they were seeking in the statement of claim.
46. Whether the appellant proved its case against the respondent, and if so what remedies are available.
47. The appellant having failed to prove that there was a contract between the appellant and respondents for supply of water, this court finds that the appellant is not entitled to any damages.
48. Whether the appellant proved the claim of damage of their property and assault by respondents.
49. From the claimant statement of claim, they are seeking Kshs.130,000/= as compensation for damage of their property.
50. The appellant witness CW2 testified before trial court that the borehole is outside the school premises. CW2 testified that their vehicles were damaged. They have not availed a valuation report or damage assessment report to show the damage and exhibit 8 is their proof of damage and they reported to the police the incident.
51. From the evidence on record the appellants relied on OB extract and medical treatment notes to support their claim of damage to their property. The appellant did not avail evidence to show that the respondents were responsible for the alleged acts of damage. I find that the appellant failed to link the respondents to the alleged damage and therefore they are not entitled to compensation.
Disposition
The appellant based his appeal based on facts. Section 38 of the Small Claims Court Act expressly limits appeals to the High Court to matters of Law only and further that the decision of the high court shall be final. The intention of the law makers is that High Court should not reopen disputes from the small claims court which are based on facts. For the reasons stated above, I find that the appeal was not properly before this court as it was not based on pure points of law. It also lacks merits and is dismissed.
Costs to the respondent.
DATED AT KITUI THIS 15th DAY OF MAY, 2026
L. GITARI
JUDGE
IN THE HIGH COURT OF KENYA AT KITUI
CIVIL APPEAL NO. E080 OF 2024
FUNDI FLEX LIMITED …………………………….……………………..…….. APPELLANT
VERSUS
THE SCHOOL MANAGEMENT COMMITTEE
IKATHIMA PRIMARY SCHOOL
SAMUEL MWANGANGI
BEATRICE MWASI ………………………………………………………….RESPONDENTS
JUDGEMENT
1. This appeal arises from the proceedings and Judgment in the Small Claims’ Court Kitui.
Background Information
2. The appellant who was the plaintiff in the Lower Court instituted a suit in the vide a statement of claim dated 24th April, 2024 seeking judgement in the sum of Kshs.413,500/=,damages for breach of contract and costs of claim.
3. The claimant claim is that the school Ikathima Primary School owes them Kshs. 283, 500/= as a result of the claimant supplying to the school water worth 950 m' from mid 2017 to October 2021 when a faulty water meter was replaced and another 940 m' consumed as of 14th September 2023. The balance of Kshs. 130, 000/= arises as a result of the loss and damage which occurred on the 11th October 2023 as a result of an alleged hostile mob attack coordinated by the respondents. The damage that was done on the claimant's motor vehicle was assessed at Kshs. 120, 000/= hence the claim for Kshs. 413, 500/=.
2. The respondents filed a response to the claim dated 22nd May 2024 and they denied the averments by the claimant. The respondent stated that they have never had any contractual relationship-with-the claimant. They stated that the claimant had a contractual relationship with the county government of Kitui where they oversaw the running of the borehole on behalf of the County Government of Kitui.
4. The respondents further averred the claimant had been contracting with Ikathima Water Project in a management contract wherein the claimant managed the borehole on behalf of Ikathima water project. This was vide contracts dated 15th July 2017 and 3rd July 2023. It is their case that they were not privy to any of those contracts as they were neither parties nor participants in the contracts.
5. The respondents further denied being served with any water bills by the claimant save for 3rd July 2023 when they received a water bill from the claimant. That brought to their knowledge the existence of the management contract dated 3rd July 2023 between the claimant and Ikathima water project. They maintained that prior to that, the school used the borehole on the pretext that the same was sunk for the benefit of the community and the school was using it by the virtue of the same having been sunk for community’s benefit
6. The pleadings closed and the matter was set down for hearing.
Evidence
7. The claimant testified and called one witness. CW1 Peter Mugo testified that he is Engineer for Fundi Fix based in Kyuso. He adopted his witness statement dated 24.04.2024 as evidence in chief. He relied on list of documents dated 19.7.2012 and further list of documents dated 23.07.2024.
8. During cross examination by Mr.Kuria for the respondent CW1 confirmed that he is claiming Kshs.413,500/= from 1st respondent and he has not availed water bills served upon the respondent. He confirmed that he has not availed any agreement between Fundi Fix and the school. CW1 further confirmed that the contract of 2017 was between Fundi Fix and Ikathima Water Project and the school does not appear anywhere in the contract. He confirmed that it was only for repair and maintenance and it only bind parties to the said contract.
9. During re-examination CW1 clarified that Fundi fix claimed from the school because it was a beneficiary of the project.
10. CW2 Anne Karata testified that she works for Fundi Fix as a Technical Manager. She adopted her statement dated 24.04.2024 as evidence in chief. She also relied on her list of documents produced by CW1.
11. During cross examination by Mr. Kuria for respondent, CW2 clarified that they invoiced the school since 2017. She confirmed that they have not produced any invoices before court. She confirmed maintenance contract expired in 2018 and was renewed in 2018. She confirmed that she has availed evidence of renewal. CW2 clarified that she is referring to contract entered between Ikathima Community Water Project and Kitui County and Fundifix on July 2023.
12. CW2 clarified that the borehole is outside the school premises. Their vehicles were damaged. They have availed a valuation report or damage assessment report to show the damage and exhibit 8 is their proof of damage and they reported to the police the incident.
13. The claimant closed their case and matter proceeded to respondents hearing.
14. RW1 Samuel Mwangangi testified that he is a teacher and the headteacher of Ikathima Primary School. He adopted his statement dated 18.07.2024 as evidence in chief and relied on list of document dated 22.05.2024.
15. RW1 testified further dispute arose after 2nd agreement was signed on 3rd July,2023 between County Government and Ikathima Community and Fundi fix. RW1 testified that it is when the billing of the school started. It was presented for July 2023 and first bill was 7050/= and followed by bill of August 5700/=. He referred to agreement dated 3/7/2023. RW1 testified that at page 24 there was part for head teacher to sign, chairman of the board was to sign. He testified that the same was not signed because the school management was not invited to that meeting dispite the school being the owner of the borehole. RW1 testified that there was no contract between Fundi fix and the school.
16. During cross examination by Ms.Kendi RW1 clarified that Fundi Fix maintains the Ikathima borehole and the school is not supposed to pay for the maintainance. RW1 clarified that Ikathima Primary School is a beneficiary of the project. He clarified there was agreement between Ikathimani Water Project and Fundi fix and that is how the school benefitted from the project. He clarified after expiry Fundi fix continued to maintain the borehole.
17. RW1 clarified that the screenshot is true conversation between him and CW2 Ann Kavata and he accepted to pay the amount of water for month of July 2023 and he has not paid anything to date.
18. At conclusion of hearing the learned magistrate delivered a judgement dated 29th August,2024 as follows;
“In light of the foregoing, the claimant having failed to prove the existence of any contract between the claimant and the respondents, and the 2nd and 3rd respondent not being culpable for the violent acts meted out against the claimant, it automatically follows that the claim fails in its entirety. As such the same is dismissed with costs to the respondents.”
Appeal
19. The appellant was dissatisfied with the above Judgment dated 29th August,2024 delivered by learned magistrate and filed this appeal. It is based on the following grounds which are pleaded on the Amended Memorandum of Appeal dated 18th November,2024:
i. The Honourable Court erred in law and in fact in holding that the claimant’s claim had no merits and dismissed it.
ii. That the Honourable Court erred in failing to uphold that there was an agreement between the parties herein for supply of services.
iii. That the honourable small claim’s court erred in law and fact by failing to recognize that the respondent had acknowledged some of the Water Bills sent to them and willing to pay.
iv. That the subordinate court erred in law and fact by failing to hold that the respondents were in breach of agreement/contract by failing to pay for the water bill.
v. The honourable court erred in fact and law in failing to make a clear finding that the appellant’s services were received by the school administration thus erred in finding that the school ought to not pay for anything.
vi. That the honourable court erred in law and fact in finding that the appellant’s lorry was not damaged as a result of the respondents actions.
20. The appellant proposed that the appeal be allowed and cost of appeal be borne by the respondent.
21. The appeal was canvassed by way of written submissions. I have considered the submissions. The appellant filed written submissions dated 17th April,2024 through the firm of Kimathi & Muchiri Advocates. The respondents filed written submissions dated 26th June 2025 by Senior State Counsel Peter Kuria.
Appellant’s Submissions
22. The appellant submitted that the trial court erred in finding that there was no agreement between the parties despite clear evidence that the Respondent school received and benefited from the Appellant’s water supply and borehole maintenance services.
23. It was submission of the appellant that both parties’ witnesses confirmed that the school benefited from the Ikathima water project and that the Appellant continued maintaining the borehole even after the original contract expired.
24. It was further submission of the appellant that the Respondents also acknowledged communication regarding outstanding water bills and admitted that payment for some water services had been promised though never made. The Appellant relied on text messages exchanged between the Respondents and the Appellant’s employee, where the headteacher undertook to pay the allocated water capitation funds.
25. The Appellant submitted that these admissions demonstrated that the water bills were not disputed and that the Respondents’ denial of liability was untenable. It was further argued that the trial court erred in failing to recognize the admitted sums owed to the Appellant.
26. The Appellant submitted that the contracts need not always be in writing and cited decisions in Ali Abdi Mohamed v Kenya Shell & Company Limited [2017] eKLR and Abdulkadir Shariff Abdirahim & another vs. Awo Shariff Mohamed t/a AS Mohamed Investments [2014] eKLR, where courts held that agreements may arise through conduct and communication between parties.
27. The appellant submitted that the Respondents requested and received water services for consideration, thereby satisfying the essentials of a contract under Section 3(1) of the Sale of Goods Act. Even after the expiry of the formal agreement between Fundifix and Ikathima Water Project, services continued to be supplied based on oral requests by the Respondents, creating an implied contract through the conduct of the parties.
28. The appellant urged this court to hold that the Respondents were liable for payment because they received and benefited from the services, acknowledged some of the bills, and promised payment for the outstanding amounts.
29. The appellant submitted on that the trial court erred in failing to recognize that the Respondents had acknowledged the outstanding water bills. The Appellant relied on a mobile phone conversation between the Respondents’ witness (RW1) and the Appellant’s employee, Ann Kavata (CW2), where the headteacher admitted that payment would be made once funds were released, specifically stating that he would “pay all the amount allocated for water capitation for third term.” The Appellant submitted this amounted to an admission of liability and that the bills were never disputed.
30. The Appellant further submitted that, under Order 13 Rule 2 of the Civil Procedure Rules, the court ought to have entered judgment on admission based on the acknowledged debt. Reliance was placed on authorities including Family Bank Kenya Ltd v Kamwara & Another, Peters v Sunday Post Ltd, and Selle & Another v Associated Motor Boat Co. regarding the duty of an appellate court to re-evaluate evidence and correct errors made by the trial court.
31. The Appellant submitted that the trial court erred in failing to find that the Appellant’s lorry was damaged due to the Respondents’ actions. it was submitted that veidence was led showing that pupils allegedly attacked the Appellant’s employees and motor vehicle with stones on the instructions of the headteacher, resulting in injuries to Ann Kavata and damage to the vehicle. The appellant submitted copies of Repair receipts, police reports, treatment notes, and medical reports were produced in support of the claim.
32. The Appellant concluded that the Respondents had requested and benefited from the supplied services, had admitted all or part of the debt, and should therefore be held liable for payment as well as for damages arising from the destruction of the Appellant’s motor vehicle. The Appellant urged the appellate court to allow the appeal and award costs of both the trial suit and the appeal.
Respondent’s submissions
33. The respondent submitted on whether there was contract between appellant and respondents. The respondents submitted that no contractual relationship existed between them and the appellant and therefore no breach of contract was proved. They contend that the invoices relied upon by the appellant arose from contracts between the appellant, the County Government of Kitui, and Ikathima Community Water Project, to which the respondents were not parties.
34. Respondents further submit that the earlier contract only related to maintenance of the water supply scheme, lasted one year, and did not authorize the appellant to charge water fees or enter contracts on behalf of the project. Relying on cases including Tweedle v Atkinson and William Muthee Muthami v Bank of Baroda, they submitted that contractual rights and obligations only bind parties to a contract, and the appellant failed to prove offer, acceptance, and consideration between itself and the respondents.
35. The respondents further submitted that the WhatsApp message from the 2nd respondent could not create contractual obligations because the school’s Board of Management, not the headteacher, had authority to contract on behalf of the school. They maintain that only two invoices were ever issued before water supply was disconnected and that these were merely forwarded to the Board for discussion. Citing Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited and Ali Abdi Mohamed v Kenya Shell & Company Limited, they submit that although contracts may sometimes be implied through conduct, the appellant failed to show any intention by the parties to enter into a binding agreement or agree on payment terms. They therefore support the trial court’s finding that no enforceable contract existed between the appellant and the respondents.
36. On the claims for damage to property and assault, the respondents submit that the appellant failed to prove that the respondents caused the alleged damage to the vehicle or injuries to the employee. They submit that no ownership documents for the vehicle were produced, the vehicle itself was not identified, and no valuation report or evidence of the extent of damage was tendered. They relied on Bonham-Carter v Hyde Park Hotel Ltd for the principle that special damages must be specifically proved.
37. The respondents submit that the appellant only produced an OB extract and medical records but failed to link the respondents to the attack or show that criminal charges were ever brought against them. They therefore pray for the appeal to be dismissed with costs.
Analysis and Determination
38. From the appeal, evidence on record and submissions, the main issues which arise for determination are:
(1) Whether there was contractual agreement between the appellant and respondents.
(2) Whether the appellant proved its case against the respondent, and if so what remedies are available.
(3) Whether the appellant proved the claim of damage of their property and assault by respondents
39. The duty of this court as the first appellate court is well settled by a line of authorities from this court and the Court of Appeal. In James Odera T/A Odera & Associates -vs- John Patrick Machira & Company Advocates (2013) eKLR, the Court of Appeal stated that:
“This being a first appeal we are reminded of our primary role as a 1st appellate court, namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusion reached by the learned trial Judge are to stand or not and give reasons either way.”
I however note that the appeal arises from the proceedings in the small claims court. Section 38 of the Small Claims act provides:
(i) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.”
(ii) an appeal from any decision or order referred to in subsection (1) shall be final.
So, appeals from small claims Court to this Court are on points of Law only and the Court need not consider them.
40. Whether there was contractual agreement between the appellant and respondents.
The claimant/appellant through a statement of claim dated 24th April 2024 instituted the instant suit seeking judgement for a sum of Kshs.413,500/=. The appellant contention is that the 1st respondent Ikathima Primary school owed them Kshs.283,500/= as a result of appellant supplying to the school water from mid 2017 to October 2021. The appellant is seeking damages for breach of contract.
41. This court first need to establish whether there was contractual agreement between the appellant and 1st respondent. From the evidence on record the appellant relied on minutes of a meeting undertake on 29th September,2023 and agreement between Fundi Fix and Ikathima Water Project to support his claim.
42. It is clear from evidence on record that the appellant entered into an agreement with Ikathima Water Project for management of borehole on behalf of Ikathima water project. This was vide contracts dated 15th July 2017.
43. The appellant during his testimony before trial court testified and confirmed to this court that the contract of 2017 was between Fundi Fix and Ikathima Water Project and the school does not appear anywhere in the contract. He also confirmed that it was only for repair and maintenance and it only binds parties to the said contract.
44. From the claimant own testimony before the trial court it is clear that there was no contract between appellant and 1st respondent. Section 107 of the Evidence Act provides that:
“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 exists.”
45. I therefore agree with trial court findings that there was no proof produced between claimant and respondent that respondents owed claimant any obligation. It is my considered view that the appellant failed to prove on balance of probabilities existence of contract between appellant and respondents to entitle claimant to damages they were seeking in the statement of claim.
46. Whether the appellant proved its case against the respondent, and if so what remedies are available.
47. The appellant having failed to prove that there was a contract between the appellant and respondents for supply of water, this court finds that the appellant is not entitled to any damages.
48. Whether the appellant proved the claim of damage of their property and assault by respondents.
49. From the claimant statement of claim, they are seeking Kshs.130,000/= as compensation for damage of their property.
50. The appellant witness CW2 testified before trial court that the borehole is outside the school premises. CW2 testified that their vehicles were damaged. They have not availed a valuation report or damage assessment report to show the damage and exhibit 8 is their proof of damage and they reported to the police the incident.
51. From the evidence on record the appellants relied on OB extract and medical treatment notes to support their claim of damage to their property. The appellant did not avail evidence to show that the respondents were responsible for the alleged acts of damage. I find that the appellant failed to link the respondents to the alleged damage and therefore they are not entitled to compensation.
Disposition
The appellant based his appeal based on facts. Section 38 of the Small Claims Court Act expressly limits appeals to the High Court to matters of Law only and further that the decision of the high court shall be final. The intention of the law makers is that High Court should not reopen disputes from the small claims court which are based on facts. For the reasons stated above, I find that the appeal was not properly before this court as it was not based on pure points of law. It also lacks merits and is dismissed.
Costs to the respondent.
DATED AT KITUI THIS 15th DAY OF MAY, 2026
L. GITARI
JUDGE