1. This appeal emanates from the judgement and decree of Hon. G.C. Serem, Resident Magistrate/Adjudicator delivered on 24th July, 2024 in Kisumu SCCCOMM No. E633 of 2023 Green Wells Energies Limited v Kabull Filling Station.
2. The grounds of appeal presented by the Appellant vide the memorandum of appeal dated 23rd August, 2024 upon which it seeks to upset the judgement and decree of the lower court are as follows:
i. That the learned trial Magistrate erred in law and in fact by failing to consider the evidence on record thereby arriving at a wrong conclusion.
ii. That the learned trial Magistrate erred in law and in fact in failing to consider that the Appellant is the only one who adduced records of evidence as opposed to the oral evidence backed by no proof from the Respondent.
iii. That the learned trial Magistrate erred in law and in fact in failing to find that the evidence adduced in court both orally and records by the Appellant is sufficient proof of debt accrued by the Respondent.
3. The Appellant proposes that this Honourable Court allows the appeal, sets aside the judgment delivered by the trial court in its entirety and grant the reliefs sought by finding in favour of the Appellant’s case. The Appellant further seeks for costs of the appeal.
4. 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 Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to re-assess, re-analyze and re-evaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
5. In Selle, 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.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
7. Notably however, this is an appeal from the Small Claims Court and Section 38 of the Small Claims Court Act provides that a person dissatisfied with a decision or order of the Small Claims Court may appeal to the High Court only on matters of law, not on questions of fact, and that once the High Court determines such an appeal, its decision is final.
8. I will proceed to re-assess, re-analyze and re-evaluate the evidence adduced before the trial court and reach my own findings while abiding by the principles set in Selle and Peters. While doing so, I will abide by Section 38 of the Small Claims Court Act.
9. The matter before the trial court was based on contract. The Appellant sued the Respondent vide the statement of claim dated 10th July, 2023 and pleaded that on or about the 1st of October, 2022, the Appellant, a fuel distribution company entered into an agreement with the Respondent for the supply of petroleum and petroleum products.
10. The Appellant further pleaded that it was an express term of the agreement that the Respondent would make payments upon receipt of the goods, in default of which the balance would attract a 3% monthly interest that would be calculated on a daily basis.
11. The Appellant contended that although the Respondent initially made progressive payments for the goods supplied, the Respondent subsequently fell into default. Consequently, the Appellant, after issuing due demands, instituted the claim seeking recovery of the outstanding sum of Ksh.104,799.99/-, together with costs and accrued interest.
12. The Respondent resisted the Appellant’s claim by filing a response to statement of claim dated 22nd January, 2024.
13. In its response, the Respondent denied any indebtedness to the Appellant and asserted that the parties’ agreement was strictly on a cash-on-delivery basis. The Respondent maintained that payment for the goods was required before the seal of the transport vehicle could be broken and the fuel offloaded and averred that at no time did the Appellant supply fuel without prior payment having been made.
14. The Respondent further pleaded that the alleged discrepancy arose from confusion and miscalculation occasioned by the Appellant’s change of its software management system, a transition which it averred similarly affected other traders. The Respondent sought that the Appellant’s suit be dismissed with costs.
15. The Appellant called James Ochieng Oloo as its witness (CW1). The witness testified before the trial court and adopted the contents of his witness statement dated 21st October, 2022 as his evidence-in-chief.
16. In his statement, CW1 stated that he was a director of the Appellant. He averred that around 1st October, 2022, the Appellant entered into an agreement with the Respondent for the sale and supply of petroleum and petroleum products to the Respondent’s facility, with payment to be made upon supply.
17. The witness stated that the Respondent initially complied with the payment terms but later began defaulting despite the Appellant continuing to supply the petroleum products in good faith and in the expectation that the outstanding balance would be settled.
18. CW1 further stated that despite several reminders and demands for payment, the Respondent ignored and/or refused to settle the outstanding amount, leaving a balance of Ksh.104,799.99/- due and owing to the Appellant, necessitating the suit before the trial court.
19. The Appellant’s witness produced the following documents in support of the Appellant’s case:
- Copy of customer statement.
- Certificate of incorporation of the Appellant.
- Specific Power of Attorney donated by the Appellant to CW1 authorizing him to represent the Appellant in the matter before the trial court.
20. During cross-examination, CW1 informed the trial court that he had worked with the Appellant since 2014 but acknowledged that he was not aware of when the business relationship between the parties began. He further stated that at times the Respondent would make payments in excess and at other times pay less than the amount due for the products delivered, with the balance being settled later through top-up payments.
21. Upon further cross-examination, CW1 stated that some of the Appellant’s staff were relieved of their duties due to mishandling of funds. He further stated that the Respondent did not acknowledge any indebtedness to the Appellant.
22. The Respondent, in its case, called its director, George Owigo Oteyo, as its witness (RW1), who adopted his witness statement dated 12th March, 2024 as his evidence in chief.
23. In his witness statement, RW1 stated the parties entered into an agreement on a cash-on-delivery basis for the supply of petroleum products. He averred that the Appellant supplied products for over five years, but he stopped dealing with it when the Appellant claimed that the Respondent had accrued debt from unpaid deliveries.
24. RW1 emphasized that at no point did he receive fuel without making payment, as the condition of delivery required payment before the transport vehicle’s seal could be broken and the fuel offloaded. He further stated that any confusion or miscalculations arose from the Appellant’s change of its software management system, which also affected other traders, and that the Appellant had not provided evidence of specific dates on which fuel was supplied but allegedly unpaid, contrary to the agreed cash-on-delivery arrangement.
25. Upon cross-examination, RW1 told the trial court that the parties had engaged in the contractual business for 3-4 years, and that he would make payments on behalf of the Respondent each time a delivery was made to its premises, either through M-Pesa mobile money transfer or by bank payment, before the seal was broken.
26. The Respondent explained that the dispute between the parties arose after the Appellant changed its business software, and he suspected that the issue stemmed from those software changes. He stated that there was not a single instance in which he underpaid for delivered goods and added that he did not understand the Appellant’s customer statement produced as an exhibit.
27. The learned Adjudicator, in her judgment delivered on 24th July, 2024, identified the issue for determination as whether the Appellant was entitled to the amount claimed in its pleadings. She then proceeded to render herself on the issue as follows:
“4. The claimant testified and stated that they supplied goods to the customer on cash and credit. Hе stated that he was a cash customer. He stated that there was no written contract and further that the change in system did not occasion any confusion. He stated that the balance in the old system was just brought forward. He claimed that the balance they were claiming for was a sum of Ksh.104,799.99/-. He stated that seals were broken upon payment. He stated that though sometime he used to pay later. He stated that at times the fuel was much more than the money was deposited. The respondent on the other hand testified and stated that he was only a cash client and the seal could be broken upon payment of the money. He stated that maybe a change in system could have occasioned the error. He stated that he did not understand the statement because it was from the claimant.
5. Section 107 of the Evidence Act Cap 80 Laws of Kenya 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 exist.”
6. It is thus trite that in civil cases, a party who wishes the court to give a judgment or to declare any legal right dependent on a particular fact or sets of facts, that party has a legal obligation to provide evidence that will best facilitate the proof of the existence of those facts. The party must present to the court all the evidence reasonably available on a litigated factual issue. Section 109 and 112 of the Evidence Act provides for the evidential burden of proof.
7. The two provisions were dealt with in Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2005]1 EA 334, in which the Court of Appeal held that:
“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. 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 which is captured in sections 109 and 112 of the Act.”
8. The court has looked at the evidence and states that the burden was on the claimant to prove their case. Firstly in CW1 testimony he did admit that the respondent was a cash buyer and that the seal would be broken upon payment of the money. So the burden was on him to explain where the debt then arose if this was a cash buyer, from the documents the claimant produced the account statement showing that there was a balance. He further stated in his testimony that at times the fuel delivered was more than what was paid for. There were no delivery notes or document to evidence what was extra fuel that was delivered and hence that was done on credit. Hence from the above analysis the claimant did not prove his case on a balance of probabilities and the case is dismissed with costs to the respondent.”
28. The court directed that the appeal be canvassed by way of written submissions and both parties filed their respective submissions.
29. The Appellant states in its submissions that the central issue in this appeal is whether it proved its claim for Ksh.104,799.99/- against the Respondent.
30. The Appellant submits that the burden of proof lies on the party making the allegation, citing Sections 107 – 109 of the Evidence Act, and Halsbury’s Laws of England, 4th Edition, Vol. 17, paras 13 – 14. It asserts that it fulfilled this burden by producing an unopposed customer statement documenting the Respondent’s transactions, payments and balances, including receipts RCT24294 and RCT19528 which partially cleared the opening balance from a prior accounting system.
31. The Appellant further states that the Respondent’s claim of miscalculation arising from a change in the accounting software was unsupported by evidence. It notes that the Respondent failed to produce receipts, bank statements or Mpesa records to prove full payment, invoking Section 112 of the Evidence Act regarding facts within the exclusive knowledge of a party. The Appellant relies on the cases of Airtel Networks (Kenya) Ltd v Anthony Kelly Muema, Civil Appeal No. 50 of 2018, Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR and Akiba Micro Financing Ltd v Ezekiel Chebii & 14 others [2012] eKLR to support the drawing of adverse inferences where a party fails to produce relevant evidence.
32. The Appellant contends that its accounting system, using a running balance format, accurately reflected transactions, overpayments and underpayments, contrary to the Respondent’s assertions. Evidence shows that prior overpayments were appropriately credited against subsequent invoices, leaving the disputed balance.
33. The Appellant submits that the Respondent’s blanket denial of owing money lacks credibility and constitutes an insufficient defence in light of the documented evidence.
34. In conclusion, the Appellant states that it has discharged its evidential and legal burdens, whereas the Respondent has failed to produce any evidence substantiating his claims. The Appellant therefore prays that the court finds merit in its appeal and holds that the Respondent owes it the sum of Ksh.104,799.99/-.
35. On its part, the Respondent submits that the alleged claim by the Appellant arises from an asserted outstanding sum for fuel deliveries, which the Respondent categorically denies.
36. The Respondent emphasizes that all transactions were strictly governed by a cash on delivery arrangement, under which fuel was only offloaded after full payment. It urges that this practice was confirmed in evidence by both parties and constituted a binding condition precedent, ensuring that no credit or post-delivery debt existed, consistent with Section 3(1) of the Sale of Goods Act. The Respondent notes that such arrangements are standard in the petroleum sector, citing Total Kenya Ltd v Janevams Ltd [2005] eKLR and Gulf Energy Ltd v County Government of Kiambu [2020] eKLR, which recognizes the necessity of immediate payment to mitigate financial risk.
37. The Respondent further submits that the burden of proof rests squarely on the Appellant, citing Section 107 of the Evidence Act and relies on the authority of Isaac Mugweru Kiraba T/A Isamu Refrielectricals v Net Plan East Africa Limited [2018] eKLR. The Respondent contends that the Appellant failed to produce credible documentary evidence such as delivery notes, signed invoices or reconciled statements to establish any unpaid deliveries.
38. Further, the Respondent proffers the position that the Appellant’s own admission of miscalculations following software changes casts doubt on the reliability of its records. The Respondent also relies on Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, emphasizing that uncorroborated claims are insufficient to meet the burden of proof.
39. The Respondent further submits that the Appellant is estopped from denying the cash on delivery practice it consistently applied and that under Section 120 of the Evidence Act, a party cannot deny a state of affairs that it represented as true if another acted to their detriment based on that representation. The Respondent submits that it relied on the Appellant’s practice by ensuring payment before delivery and reversal of that position would cause prejudice. The Respondent cites the cases of Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR, Republic v Kenya Revenue Authority Ex Parte Universal Corporation Ltd [2016] eKLR, and Hannah Wambui Mureithi v Mary Njambi Ndungu [2017] eKLR in support of this principle.
40. The Respondent contends that the trial court correctly found in its favour and that appellate interference is unwarranted in the absence of manifest error, misdirection or misapprehension of evidence, citing gthe case of Peters v Sunday Post Ltd [1958] EA 424.
41. The Respondent asserts that the trial court’s findings were properly based on evidence, particularly the Appellant’s own witness’s admission regarding cash on delivery. It concludes by urging the court to dismiss the Appellant’s claim with costs, uphold the cash on delivery arrangement and confirm that no debt is owed.
42. Having considered the grounds of appeal, the record of the trial court, the submissions of the parties and the applicable law, I will now proceed to set out the issues that I am required to determine as follows:
a. Whether the Appellant proved, on a balance of probabilities, that the Respondent owed it the sum of Ksh.104,799.99/- arising from the supply of petroleum and petroleum products and whether the learned trial Adjudicator erred in her judgement in dismissing the Appellant’s suit.
b. The allocation of costs of the appeal.
43. The first issue for determination is whether the Appellant proved, on a balance of probabilities, that the Respondent owed it the sum of Ksh.104,799.99/- arising from the supply of petroleum and petroleum products and whether the learned trial Adjudicator erred in her judgement in dismissing the Appellant’s suit.
44. It is trite law that the party who alleges a right or liability must prove the existence of the facts upon which he bases his claim. Sections 107 – 109 of the Evidence Act provide 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 exist and that the burden of proof lies on the person who would fail if no evidence at all were given on either side.
45. In determining whether the Appellant proved its claim against the Respondent on a balance of probabilities, the court does not look to submissions alone but to the evidence adduced. It is well established that documentary evidence, even if admissible, must be shown to have probative value by reference to what it is intended to prove.
46. The mere production and marking of a document is not, in itself, proof of its contents or the facts that the proponent seeks to derive from it. A witness must explain and contextualize the document’s relevance to the issues in dispute.
47. In this case, the principal documentary exhibit relied upon by the Appellant was the customer statement said to show the history of transactions and the outstanding balance of Ksh.104,799.99/-.
48. However, the Appellant’s witness failed to meaningfully explain or justify the figures in that statement, including the specific basis for the claimed amount and how it arose under the agreed terms of business. The witness merely referred to overpayments and underpayments in general terms without identifying which deliveries gave rise to a debt. As a result, the purported accounting record stood as an unilluminated figure devoid of clear linkage to specific supplies and payments.
49. This falls short of the standard required for proof on a balance of probabilities. The burden of proof lies on the party alleging a fact, and that proof must be cogent and convincing, tipping the scale of probabilities in that party’s favour. If the evidence cannot persuade the court that the claimed facts are more likely than not, the burden remains unfulfilled.
50. Moreover, the absence of clear explanation transforms the customer statement into a document of limited probative value. A document may be admissible and yet lack probative force unless the maker or a competent witness with personal knowledge explains its contents and relevance to the facts in issue. The reason is straightforward, i.e. the court cannot speculate about the meaning of figures or reconstruct the narrative of a transaction chain without testimony that links entries in the record to the pleaded facts.
51. Where documentary evidence is produced but inadequately explained, the party who produced it cannot rely on mere assertion. Relying on record alone without a coherent evidential foundation deprives the document of the persuasive quality required to discharge the burden of proof. In such circumstances, an adverse finding must follow because the alleging party has not persuaded the court that the existence of an alleged debt is more probable than its non existence.
52. Having considered the evidence as a whole and noting the inadequacy of the explanation of the customer statement, the court finds that the Appellant did not prove its claim for a debt owed by the Respondent. The Appellant’s failure to elucidate the customer statement’s contents and the basis for the claimed sums renders its evidence insufficient to meet the requisite standard on a balance of probabilities.
53. For these reasons, the first issue is determined in favour of the Respondent, with the consequence that the Appellant has not established that the Respondent owes the sum claimed. The learned Adjudicator did not err in her decision.
54. The second issue for determination is who should bear the costs of the appeal. Generally, the principle under Section 27 of the Civil Procedure Act is that costs follow the event, meaning that the party who succeeds in the proceedings is entitled to an order for costs, unless there is a reason to depart from this rule.
55. In Republic v Kenya Pipeline Company Ltd [2018] eKLR, the court emphasized that where a party succeeds on the merits, the award of costs is ordinarily appropriate unless the court considers special circumstances that justify a different order.
56. Similarly, in KCB Bank Ltd v Joseph Kirui [2021] eKLR, it was held that costs are discretionary, but the discretion must be exercised judicially, generally favoring the successful party.
57. In the present case, the Respondent is the successful party. The trial court’s finding that the Appellant failed to discharge its burden of proof, combined with the Appellant’s failure to explain its customer statement, led to the dismissal of the Appellant’s claim. No exceptional circumstances exist in this appeal that would justify departing from the general rule on costs. Therefore, it is just and proper that the Appellant should be ordered to pay the costs of the appeal to the Respondent.
58. Being of the foregoing findings, I reach the result that the appeal is devoid of merit. I proceed to dismiss it with costs to the Respondent, which I assess at Ksh.15,000/-.
59. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 6th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR APPELLANT: No appearance.
FOR RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
2. The grounds of appeal presented by the Appellant vide the memorandum of appeal dated 23rd August, 2024 upon which it seeks to upset the judgement and decree of the lower court are as follows:
i. That the learned trial Magistrate erred in law and in fact by failing to consider the evidence on record thereby arriving at a wrong conclusion.
ii. That the learned trial Magistrate erred in law and in fact in failing to consider that the Appellant is the only one who adduced records of evidence as opposed to the oral evidence backed by no proof from the Respondent.
iii. That the learned trial Magistrate erred in law and in fact in failing to find that the evidence adduced in court both orally and records by the Appellant is sufficient proof of debt accrued by the Respondent.
3. The Appellant proposes that this Honourable Court allows the appeal, sets aside the judgment delivered by the trial court in its entirety and grant the reliefs sought by finding in favour of the Appellant’s case. The Appellant further seeks for costs of the appeal.
4. 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 Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to re-assess, re-analyze and re-evaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
5. In Selle, 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.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
7. Notably however, this is an appeal from the Small Claims Court and Section 38 of the Small Claims Court Act provides that a person dissatisfied with a decision or order of the Small Claims Court may appeal to the High Court only on matters of law, not on questions of fact, and that once the High Court determines such an appeal, its decision is final.
8. I will proceed to re-assess, re-analyze and re-evaluate the evidence adduced before the trial court and reach my own findings while abiding by the principles set in Selle and Peters. While doing so, I will abide by Section 38 of the Small Claims Court Act.
9. The matter before the trial court was based on contract. The Appellant sued the Respondent vide the statement of claim dated 10th July, 2023 and pleaded that on or about the 1st of October, 2022, the Appellant, a fuel distribution company entered into an agreement with the Respondent for the supply of petroleum and petroleum products.
10. The Appellant further pleaded that it was an express term of the agreement that the Respondent would make payments upon receipt of the goods, in default of which the balance would attract a 3% monthly interest that would be calculated on a daily basis.
11. The Appellant contended that although the Respondent initially made progressive payments for the goods supplied, the Respondent subsequently fell into default. Consequently, the Appellant, after issuing due demands, instituted the claim seeking recovery of the outstanding sum of Ksh.104,799.99/-, together with costs and accrued interest.
12. The Respondent resisted the Appellant’s claim by filing a response to statement of claim dated 22nd January, 2024.
13. In its response, the Respondent denied any indebtedness to the Appellant and asserted that the parties’ agreement was strictly on a cash-on-delivery basis. The Respondent maintained that payment for the goods was required before the seal of the transport vehicle could be broken and the fuel offloaded and averred that at no time did the Appellant supply fuel without prior payment having been made.
14. The Respondent further pleaded that the alleged discrepancy arose from confusion and miscalculation occasioned by the Appellant’s change of its software management system, a transition which it averred similarly affected other traders. The Respondent sought that the Appellant’s suit be dismissed with costs.
15. The Appellant called James Ochieng Oloo as its witness (CW1). The witness testified before the trial court and adopted the contents of his witness statement dated 21st October, 2022 as his evidence-in-chief.
16. In his statement, CW1 stated that he was a director of the Appellant. He averred that around 1st October, 2022, the Appellant entered into an agreement with the Respondent for the sale and supply of petroleum and petroleum products to the Respondent’s facility, with payment to be made upon supply.
17. The witness stated that the Respondent initially complied with the payment terms but later began defaulting despite the Appellant continuing to supply the petroleum products in good faith and in the expectation that the outstanding balance would be settled.
18. CW1 further stated that despite several reminders and demands for payment, the Respondent ignored and/or refused to settle the outstanding amount, leaving a balance of Ksh.104,799.99/- due and owing to the Appellant, necessitating the suit before the trial court.
19. The Appellant’s witness produced the following documents in support of the Appellant’s case:
- Copy of customer statement.
- Certificate of incorporation of the Appellant.
- Specific Power of Attorney donated by the Appellant to CW1 authorizing him to represent the Appellant in the matter before the trial court.
20. During cross-examination, CW1 informed the trial court that he had worked with the Appellant since 2014 but acknowledged that he was not aware of when the business relationship between the parties began. He further stated that at times the Respondent would make payments in excess and at other times pay less than the amount due for the products delivered, with the balance being settled later through top-up payments.
21. Upon further cross-examination, CW1 stated that some of the Appellant’s staff were relieved of their duties due to mishandling of funds. He further stated that the Respondent did not acknowledge any indebtedness to the Appellant.
22. The Respondent, in its case, called its director, George Owigo Oteyo, as its witness (RW1), who adopted his witness statement dated 12th March, 2024 as his evidence in chief.
23. In his witness statement, RW1 stated the parties entered into an agreement on a cash-on-delivery basis for the supply of petroleum products. He averred that the Appellant supplied products for over five years, but he stopped dealing with it when the Appellant claimed that the Respondent had accrued debt from unpaid deliveries.
24. RW1 emphasized that at no point did he receive fuel without making payment, as the condition of delivery required payment before the transport vehicle’s seal could be broken and the fuel offloaded. He further stated that any confusion or miscalculations arose from the Appellant’s change of its software management system, which also affected other traders, and that the Appellant had not provided evidence of specific dates on which fuel was supplied but allegedly unpaid, contrary to the agreed cash-on-delivery arrangement.
25. Upon cross-examination, RW1 told the trial court that the parties had engaged in the contractual business for 3-4 years, and that he would make payments on behalf of the Respondent each time a delivery was made to its premises, either through M-Pesa mobile money transfer or by bank payment, before the seal was broken.
26. The Respondent explained that the dispute between the parties arose after the Appellant changed its business software, and he suspected that the issue stemmed from those software changes. He stated that there was not a single instance in which he underpaid for delivered goods and added that he did not understand the Appellant’s customer statement produced as an exhibit.
27. The learned Adjudicator, in her judgment delivered on 24th July, 2024, identified the issue for determination as whether the Appellant was entitled to the amount claimed in its pleadings. She then proceeded to render herself on the issue as follows:
“4. The claimant testified and stated that they supplied goods to the customer on cash and credit. Hе stated that he was a cash customer. He stated that there was no written contract and further that the change in system did not occasion any confusion. He stated that the balance in the old system was just brought forward. He claimed that the balance they were claiming for was a sum of Ksh.104,799.99/-. He stated that seals were broken upon payment. He stated that though sometime he used to pay later. He stated that at times the fuel was much more than the money was deposited. The respondent on the other hand testified and stated that he was only a cash client and the seal could be broken upon payment of the money. He stated that maybe a change in system could have occasioned the error. He stated that he did not understand the statement because it was from the claimant.
5. Section 107 of the Evidence Act Cap 80 Laws of Kenya 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 exist.”
6. It is thus trite that in civil cases, a party who wishes the court to give a judgment or to declare any legal right dependent on a particular fact or sets of facts, that party has a legal obligation to provide evidence that will best facilitate the proof of the existence of those facts. The party must present to the court all the evidence reasonably available on a litigated factual issue. Section 109 and 112 of the Evidence Act provides for the evidential burden of proof.
7. The two provisions were dealt with in Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2005]1 EA 334, in which the Court of Appeal held that:
“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. 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 which is captured in sections 109 and 112 of the Act.”
8. The court has looked at the evidence and states that the burden was on the claimant to prove their case. Firstly in CW1 testimony he did admit that the respondent was a cash buyer and that the seal would be broken upon payment of the money. So the burden was on him to explain where the debt then arose if this was a cash buyer, from the documents the claimant produced the account statement showing that there was a balance. He further stated in his testimony that at times the fuel delivered was more than what was paid for. There were no delivery notes or document to evidence what was extra fuel that was delivered and hence that was done on credit. Hence from the above analysis the claimant did not prove his case on a balance of probabilities and the case is dismissed with costs to the respondent.”
28. The court directed that the appeal be canvassed by way of written submissions and both parties filed their respective submissions.
29. The Appellant states in its submissions that the central issue in this appeal is whether it proved its claim for Ksh.104,799.99/- against the Respondent.
30. The Appellant submits that the burden of proof lies on the party making the allegation, citing Sections 107 – 109 of the Evidence Act, and Halsbury’s Laws of England, 4th Edition, Vol. 17, paras 13 – 14. It asserts that it fulfilled this burden by producing an unopposed customer statement documenting the Respondent’s transactions, payments and balances, including receipts RCT24294 and RCT19528 which partially cleared the opening balance from a prior accounting system.
31. The Appellant further states that the Respondent’s claim of miscalculation arising from a change in the accounting software was unsupported by evidence. It notes that the Respondent failed to produce receipts, bank statements or Mpesa records to prove full payment, invoking Section 112 of the Evidence Act regarding facts within the exclusive knowledge of a party. The Appellant relies on the cases of Airtel Networks (Kenya) Ltd v Anthony Kelly Muema, Civil Appeal No. 50 of 2018, Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR and Akiba Micro Financing Ltd v Ezekiel Chebii & 14 others [2012] eKLR to support the drawing of adverse inferences where a party fails to produce relevant evidence.
32. The Appellant contends that its accounting system, using a running balance format, accurately reflected transactions, overpayments and underpayments, contrary to the Respondent’s assertions. Evidence shows that prior overpayments were appropriately credited against subsequent invoices, leaving the disputed balance.
33. The Appellant submits that the Respondent’s blanket denial of owing money lacks credibility and constitutes an insufficient defence in light of the documented evidence.
34. In conclusion, the Appellant states that it has discharged its evidential and legal burdens, whereas the Respondent has failed to produce any evidence substantiating his claims. The Appellant therefore prays that the court finds merit in its appeal and holds that the Respondent owes it the sum of Ksh.104,799.99/-.
35. On its part, the Respondent submits that the alleged claim by the Appellant arises from an asserted outstanding sum for fuel deliveries, which the Respondent categorically denies.
36. The Respondent emphasizes that all transactions were strictly governed by a cash on delivery arrangement, under which fuel was only offloaded after full payment. It urges that this practice was confirmed in evidence by both parties and constituted a binding condition precedent, ensuring that no credit or post-delivery debt existed, consistent with Section 3(1) of the Sale of Goods Act. The Respondent notes that such arrangements are standard in the petroleum sector, citing Total Kenya Ltd v Janevams Ltd [2005] eKLR and Gulf Energy Ltd v County Government of Kiambu [2020] eKLR, which recognizes the necessity of immediate payment to mitigate financial risk.
37. The Respondent further submits that the burden of proof rests squarely on the Appellant, citing Section 107 of the Evidence Act and relies on the authority of Isaac Mugweru Kiraba T/A Isamu Refrielectricals v Net Plan East Africa Limited [2018] eKLR. The Respondent contends that the Appellant failed to produce credible documentary evidence such as delivery notes, signed invoices or reconciled statements to establish any unpaid deliveries.
38. Further, the Respondent proffers the position that the Appellant’s own admission of miscalculations following software changes casts doubt on the reliability of its records. The Respondent also relies on Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, emphasizing that uncorroborated claims are insufficient to meet the burden of proof.
39. The Respondent further submits that the Appellant is estopped from denying the cash on delivery practice it consistently applied and that under Section 120 of the Evidence Act, a party cannot deny a state of affairs that it represented as true if another acted to their detriment based on that representation. The Respondent submits that it relied on the Appellant’s practice by ensuring payment before delivery and reversal of that position would cause prejudice. The Respondent cites the cases of Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR, Republic v Kenya Revenue Authority Ex Parte Universal Corporation Ltd [2016] eKLR, and Hannah Wambui Mureithi v Mary Njambi Ndungu [2017] eKLR in support of this principle.
40. The Respondent contends that the trial court correctly found in its favour and that appellate interference is unwarranted in the absence of manifest error, misdirection or misapprehension of evidence, citing gthe case of Peters v Sunday Post Ltd [1958] EA 424.
41. The Respondent asserts that the trial court’s findings were properly based on evidence, particularly the Appellant’s own witness’s admission regarding cash on delivery. It concludes by urging the court to dismiss the Appellant’s claim with costs, uphold the cash on delivery arrangement and confirm that no debt is owed.
42. Having considered the grounds of appeal, the record of the trial court, the submissions of the parties and the applicable law, I will now proceed to set out the issues that I am required to determine as follows:
a. Whether the Appellant proved, on a balance of probabilities, that the Respondent owed it the sum of Ksh.104,799.99/- arising from the supply of petroleum and petroleum products and whether the learned trial Adjudicator erred in her judgement in dismissing the Appellant’s suit.
b. The allocation of costs of the appeal.
43. The first issue for determination is whether the Appellant proved, on a balance of probabilities, that the Respondent owed it the sum of Ksh.104,799.99/- arising from the supply of petroleum and petroleum products and whether the learned trial Adjudicator erred in her judgement in dismissing the Appellant’s suit.
44. It is trite law that the party who alleges a right or liability must prove the existence of the facts upon which he bases his claim. Sections 107 – 109 of the Evidence Act provide 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 exist and that the burden of proof lies on the person who would fail if no evidence at all were given on either side.
45. In determining whether the Appellant proved its claim against the Respondent on a balance of probabilities, the court does not look to submissions alone but to the evidence adduced. It is well established that documentary evidence, even if admissible, must be shown to have probative value by reference to what it is intended to prove.
46. The mere production and marking of a document is not, in itself, proof of its contents or the facts that the proponent seeks to derive from it. A witness must explain and contextualize the document’s relevance to the issues in dispute.
47. In this case, the principal documentary exhibit relied upon by the Appellant was the customer statement said to show the history of transactions and the outstanding balance of Ksh.104,799.99/-.
48. However, the Appellant’s witness failed to meaningfully explain or justify the figures in that statement, including the specific basis for the claimed amount and how it arose under the agreed terms of business. The witness merely referred to overpayments and underpayments in general terms without identifying which deliveries gave rise to a debt. As a result, the purported accounting record stood as an unilluminated figure devoid of clear linkage to specific supplies and payments.
49. This falls short of the standard required for proof on a balance of probabilities. The burden of proof lies on the party alleging a fact, and that proof must be cogent and convincing, tipping the scale of probabilities in that party’s favour. If the evidence cannot persuade the court that the claimed facts are more likely than not, the burden remains unfulfilled.
50. Moreover, the absence of clear explanation transforms the customer statement into a document of limited probative value. A document may be admissible and yet lack probative force unless the maker or a competent witness with personal knowledge explains its contents and relevance to the facts in issue. The reason is straightforward, i.e. the court cannot speculate about the meaning of figures or reconstruct the narrative of a transaction chain without testimony that links entries in the record to the pleaded facts.
51. Where documentary evidence is produced but inadequately explained, the party who produced it cannot rely on mere assertion. Relying on record alone without a coherent evidential foundation deprives the document of the persuasive quality required to discharge the burden of proof. In such circumstances, an adverse finding must follow because the alleging party has not persuaded the court that the existence of an alleged debt is more probable than its non existence.
52. Having considered the evidence as a whole and noting the inadequacy of the explanation of the customer statement, the court finds that the Appellant did not prove its claim for a debt owed by the Respondent. The Appellant’s failure to elucidate the customer statement’s contents and the basis for the claimed sums renders its evidence insufficient to meet the requisite standard on a balance of probabilities.
53. For these reasons, the first issue is determined in favour of the Respondent, with the consequence that the Appellant has not established that the Respondent owes the sum claimed. The learned Adjudicator did not err in her decision.
54. The second issue for determination is who should bear the costs of the appeal. Generally, the principle under Section 27 of the Civil Procedure Act is that costs follow the event, meaning that the party who succeeds in the proceedings is entitled to an order for costs, unless there is a reason to depart from this rule.
55. In Republic v Kenya Pipeline Company Ltd [2018] eKLR, the court emphasized that where a party succeeds on the merits, the award of costs is ordinarily appropriate unless the court considers special circumstances that justify a different order.
56. Similarly, in KCB Bank Ltd v Joseph Kirui [2021] eKLR, it was held that costs are discretionary, but the discretion must be exercised judicially, generally favoring the successful party.
57. In the present case, the Respondent is the successful party. The trial court’s finding that the Appellant failed to discharge its burden of proof, combined with the Appellant’s failure to explain its customer statement, led to the dismissal of the Appellant’s claim. No exceptional circumstances exist in this appeal that would justify departing from the general rule on costs. Therefore, it is just and proper that the Appellant should be ordered to pay the costs of the appeal to the Respondent.
58. Being of the foregoing findings, I reach the result that the appeal is devoid of merit. I proceed to dismiss it with costs to the Respondent, which I assess at Ksh.15,000/-.
59. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 6th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR APPELLANT: No appearance.
FOR RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.