Introduction
1. This an appeal from the Judgment in the Nairobi Small Claims Court (SCCCOMM) case No. E012 OF 2021 delivered on 2nd December 2021 against the Appellant. In the Judgment, the trial court upheld the Respondent’s claim for Kshs. 999,999 against the Appellant for monies then owing under a contract between the parties.
2. The Respondent’s claim against the Appellant at the lower court was that sometime in 2016, the parties entered into a contractual agreement where the Respondent was to provide booking and travel services to the Appellant’s employees at a cost. The Respondent claimed that from the year 2019, the Appellant stopped making any payments under the said contract and that the amount then outstanding was Kshs. 999, 999/-.
3. Due to the failure by the Appellant to make the payments, the Respondent sued the Appellant seeking payment of the Kshs. 999,999/. In the claim, the Respondent listed specific invoices which it claimed remained unpaid.
4. On 2nd December 2021, the trial court delivered its Judgment upholding the Respondent’s claim. The court found that the Appellant had not demonstrated that the specific invoices listed by the Respondent in the claim had in fact been paid.
The Appeal
5. Aggrieved by the trial court’s Judgment, the Appellant lodged this appeal vide its Memorandum of Appeal dated 20th January 2022 and raised the following as the grounds of appeal; -
i. That the learned trial magistrate erred in law in failing to appreciate that the evidence tendered by the Appellant at trial proved full settlement of all invoices claimed by the Respondent.
ii. That the learned trial magistrate erred in law in failing to shift the evidentiary burden to the Respondent upon production of evidence by the Appellant to the effect that the Respondent had received from the Appellant all the monies claimed.
iii. That the learned trial magistrate erred in law in failing to consider the evidence and submissions of the Appellant and critically analyse the same and accord it due weight to the extent that it was able to prove and corroborate the Appellant’s statements that they did not owe any sums to the Respondent.
iv. That the learned erred in law by failing to consider the Respondent’s inability to rebut the Appellant’s reconciled account statements correlating all invoices raised and payments made.
6. Consequently, the Appellant prayed that the following reliefs be granted by this court; -
a) That the judgment/decree of the honourable court dated 2nd December 2021 be set aside.
b) The Respondent’s case be dismissed.
c) That the Respondent to bear the cost of this appeal.
7. The appeal was canvased by way of written submissions. Both parties complied and the Appellant filed its submissions dated 13th March 2024 whilst the Respondent filed theirs dated 29th April 2024.
8. Whereas the Appellant urged this court to allow the appeal and grant the reliefs sought, the Respondent on their part asserted that this appeal is one for dismissal with costs to the Respondent.
Analysis and determination
9. This is an appeal emanating from the Small Claims Court. Section 38 of the Small Claims Court Act which clothes this court with jurisdiction provides as follows in relation to appeals from that court; -
“(1)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.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.”
10. It therefore follows that in appeals originating from the Small Claims Court to this court can only on the points of law in terms of Section 38(1) of the Small Claims Act. consequently, this court cannot, in appeals emanating from the Small Claims Court, entertain an invitation to interfere with the factual findings of the trial court.
11. The duty and jurisdiction of this court when dealing with an appeal from Small Claims Court is comparable to that of the Court of Appeal when dealing with a matter on a second appeal. In Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR the Court of Appeal, distinguishing between matters of law and matters of fact stated as follows: -
“First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyse it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of a retrial and facts must be revisited and analysed a fresh, - see Selle and Another vs. Associated Motor Boat Company Ltd and Others (1968) EA 123. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.”
12. Again, in Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR the Court of Appeal further clarified that where a right of appeal is confined to questions of law only, an appellate court is duty bound to accept the findings of fact by the lower court. That it should not interfere with the findings of the trial on the factual issues unless it is apparent that, based on the evidence on record, no reasonable tribunal or court could have reached the same conclusion, in which case, the holding or decision would be bad in law and therefore qualify to be reviewed on a second appeal. The court stated as follows; -
“This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina versus Mugiria [1983] KLR 78, Kenya Breweries Ltd versus Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another versus Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. See also the English case of Martin versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 where in, it was held inter alia that, where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court (s) and resist the temptation to treat findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.”
13. Before delving into the substantive questions as framed by the Appellant in its memorandum of appeal, it is imperative for this court to first consider whether or not the issues raised and framed in the memorandum of appeal are matters of law and therefore falls within the jurisdiction of this court bestowed under section 38 of the Small Claims Act.
14. While the Appellants asserted that this appeal is on matters of law and that this court has jurisdiction to deal with the same pursuant to section 38 of the Small Claims Act, the Respondent on the other hand submitted that the appeal as presented by the Appellant does not raise even a single issue of law so as to attract the jurisdiction of this court.
15. I have perused the grounds of appeal as presented by the Appellant. I note that the major complaint by the Appellant is that the trial court erred in law in failing to shift the evidentiary burden to the Respondent after the Appellant had presented evidence that all monies owed to the Respondent had in fact been overpaid by Kshs. 32,797.60. In essence, the Appellant was questioning the trial court’s appreciation of when and how to shift the burden of proof in the course of a civil proceeding.
16. Burden of proof is a legal concept which in the Kenyan legal system is generally anchored under Sections 107, 108 and 109 of the Evidence Act Cap. 80 Laws of Kenya. In the case of Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) Mativo J (as he then was) stated the following regarding the burden of proof; -
“26. “Burden of Proof” is a legal term used to assign evidentiary responsibilities to parties in litigation. The party that carries the burden of proof must produce evidence to meet a threshold or “standard” in order to prove their claim. If a party fails to meet their burden of proof, their claim will fail. The general rule in civil cases is that the party who has the legal burden also has the evidential burden. If the Plaintiff does not discharge this legal burden, then the Plaintiff’s claim will fail. In civil suits, the plaintiff bears the burden of proof that the defendant's action or inaction caused injury to the Plaintiff, and the defendant bears the burden of proving an affirmative defense. If the claimant fails to discharge the burden of proof to prove its case, the claim will be dismissed. If, however the claimant does adduce some evidence and discharges the burden of proof so as to prove its own case, it is for the defendant to adduce evidence to counter that evidence of proof of the alleged facts. If after weighing the evidence in respect of any particular allegation of fact, the court decides whether the (1) the claimant has proved the fact, (2) the defendant has proved the fact, or (3) neither party has proved the fact.”
17. Shifting of the burden of proof in a trial essentially involves the changing of responsibility of proving or disproving of a point, by way evidence, from one party to the other. The question of who bears the burden of proof and circumstances under which the burden of proof may be shifted and on what conditions is undoubtedly a question of law.
18. In the premises, I therefore find and hold that the question of shifting of the burden of proof as raised by the Appellant in the instant appeal is clearly one of law and therefore fits within the ambit of section 38 (1) of the Small Claims Court Act. Consequently, this court has jurisdiction to entertain this appeal.
19. Having established that this court has jurisdiction to entertain this appeal, I will then proceed and examine the substance of the appeal with a view of establishing whether trial court erred in failing to shift the burden of proof to the Respondent under the circumstances alleged by the Appellant in its memorandum of appeal.
20. It is an established principle of law that whoever lays a claim before the court against another has the burden to prove it. Sections 107, 108 and 109 of the Evidence Act are unequivocal on this and provide as follows: -
“107. Burden of proof.
(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
108. Incidence of burden.
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.
109. Proof of a particular fact.
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.”
21. In this case, the burden to prove that monies owed had not been paid lay squarely with the Respondent. It is only after the Respondent discharged that burden, the legal burden, to the required standards, that the Appellant would be called upon to rebut the same by way of evidence.
22. The Court of Appeal in Mbuthia Macharia v Annah Mutua & Another [2017] eKLR stated the following regarding the burden of proof: -
“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.
23. The Halsbury’s Laws of England, 4th edition, Volume 17 at paras 13 and 14 discusses the burden of proof as follows; -
“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he had failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues. The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence.
24. I have reviewed the pleadings and the proceedings in this matter. I note that upon filing of the claim at the trial court, the Respondent particularized and provided copies of the invoices which they claimed remained unsettled from the Appellants. The Respondent’s managing director Ms. Vidya Jethwa on 7th September 2021 testified in court as PW1 and adopted in evidence her written statement of 29th July 2021. She testified that the Appellant owed the Respondent a sum of Kshs. 1,124,308/- and produced twenty-nine (29) invoices in that regard. The copies of the invoices are at pages 12 – 46 of the Record of Appeal.
25. The witness further testified that in the course of pursuing payment from the Appellants, parties exchanged correspondence where the Appellants vide their email of 8th May 2020 sought to among others, make a payment plan. I have checked and found that email correspondence between the parties at pages 16 to 18 of the record of appeal where Appellant’s representative while responding to the Respondent’s wrote that “Let me check Maxxis statement so that we can come up with a payment plan.”
26. From the pleadings, the evidence of PW1 and the documents submitted at trial, it is evident that the Respondent had actually particularized their claim against the Appellants. The Respondents had proved, on a preponderance of evidence, that there was a contractual agreement for supply of booking and ticketing services between the Respondent and the Appellant and that there were some monies owing from the Appellant under the contract. The Respondent produced in support of its claim invoices and email correspondence between the parties.
27. The Respondent having demonstrated by way of evidence, on a balance of probabilities, that there were monies owing from the Appellant to the Respondent under the contract, the burden then shifted to the Appellant to adduce evidence to dislodge the Respondent’s claim.
28. In seeking to dislodge the Respondent’s claim, I note that two witnesses testified in support of the Appellant’s position. The first was Mr. Geofrey Thuo, a director of the Appellant who testified as RW1 and adopted his witness statement of 10th August 2021. In examination-in chief, he told the trial court that the Appellant and Respondent were business partners and because of the partnership, the Respondent’s managing director was also managing the affairs of the Appellant. That the Respondent through its directors had access to the Appellant’s bank account at Diamond Trust Bank Limited and that the Respondents cashed out the monies in settlement of the debt. According to the witness, this demonstrated that no monies were owing from the Appellants to the Respondents under the contract.
29. On re-examination, the witness told court that Respondents were not signatories to the aforesaid Appellant’s bank account at Diamond Trust Bank Limited. The witness further told court that from the bank statement, there was no entry showing monies moving from the Appellant to the Respondent. That notwithstanding, the witness still insisted that all the monies owing to the Respondents had been fully settled.
30. The second witness for the Appellants Mr. Tom Oyugi, who testified as RW2 was the Appellant’s external auditor. His testimony was largely in line with that of RW1 and was to the effect that the Respondents being in charge of the business affairs of the Appellant, including the Appellant’s bank accounts, paid themselves. He testified that he did the reconciliations and established that no monies were owing from the Appellant to the Respondent under the contract.
31. The trial court after considering the evidence by both parties came to the conclusion that the Appellant was unable to link the payments allegedly made to the Respondent, with the invoices produced by the Respondent at trial as the evidence of the amounts then outstanding. The court stated that it was unable to draw a correlation to the invoice numbers, amounts, cheques and details of accounts and bank statements adduced by the Respondent as being evidence of payment.
32. In their submissions in this appeal, the Appellant argued that the trial court committed an error of law when it failed to shift the burden of proof to the Respondent after the Appellant had proved, by way of evidence in the trial court, that all the monies owed to the Respondent had been paid and that it was the Respondent who actually owed the Appellant a sum of Kshs. 32, 797.60 in line with the Appellant’s audit report.
33. I have considered the memorandum of appeal, the record of appeal and the parties’ rival submissions including the authorities cited by both Counsel in this appeal. I note that while the Respondent clearly particularized the invoices which according to them were owing from the Appellant and therefore remained unpaid, the Appellant’s response and evidence was like a pendulum. On one hand, the Appellant averred that the Respondent paid themselves since the Respondent was then in charge of the affairs of the Appellant, including their bank account at Diamond Trust Bank Limited. On the other hand, the Appellant stated and confirmed to court that the Respondent’s director was not a signatory to the Appellant’s said bank account. One then wonders how a person who is not a signatory in a bank account can pay themselves from monies in the bank.
34. Further, the Appellant produced in evidence a statement from Diamond Trust Bank Ltd in evidence. I have perused the whole of the proceedings and I have been unable to sight anywhere in the proceedings where the Appellant demonstrated an entry in the bank statements that exhibited that monies from the bank had in fact been transferred to the Respondent in satisfaction of the invoices in question. What is present in the proceedings is PW1’s evidence in confirmation that no such demonstration could be made from the bank statement.
35. Further, from the proceedings, I note that the Appellants produced two sets of cheques, some stamped, others unstamped where the Respondent is named as the payee. However, no evidence was provided by the Appellant that the cheques in fact cleared and that they were actually cashed by the Respondent in satisfaction of the specific invoices that the Respondent had claimed.
36. In view of the foregoing, I find as the trial court did, that the Appellant failed to sufficiently demonstrate, by way of evidence, that the invoices claimed by the Respondent had actually been paid.
37. Finally, it is important that I deal with the issue raised by the Appellant that the Respondent failed to produce evidence in rebuttal of the evidence in the audited statement of accounts by Shilasi and Associates which showed that all the monies owing to the Respondent had been paid, with a credit of Kshs. 32, 797.60. This report was produced as evidence by RW2, the Appellant’s external auditor.
38. The Appellant argued that the opinion expressed in audited statement of accounts was that of an expert and was more credible and that the Respondent needed to dislodge it with equally credible evidence. That the Respondent having failed to controvert the said expert report by producing a counter expert report, their claim against the Appellant could not succeed. In support of their position, the Appellant cited the case of Calvin Ouma Miganda v Sammy Traders Limited [2021] eKLR where the court held that; -
“31. This court fully associated itself with the holding in the case of Ali Mohamed Sunkar vs Diamond Trust Bank Ltd (Supra) where it was held that an expert report can only be challenged through a counter expert report.”
39. On their part, the Respondent submitted that RW2, the Appellant’s witness who produced the report was placed as a witness merely to introduce the audited statements and nothing more. That the appellants did not treat him as an expert witness. That he was simply an external auditor who was paid by the Appellant to provide them with an audited statement of accounts and that the witness did not meet the standards set under section 48 of the Evidence Act regarding the testimony by an expert witness.
40. The question whether or not Mr. Tom Oyugi, the Appellant’s witness who testified as RW2 and produced the report on the audited financial statements was an expert witness can best be answered by the following paragraph from the case of AG v Republic (Criminal Appeal E008 of 2021) [2022] KEHC 11299 (KLR) where Mativo J (as he then was), stated as follows; -
“The first and foremost requirement of a party who calls an expert witness is to establish the credentials of the person as an expert, or one who is especially skilled in that branch of science, to the satisfaction of the court. That, is, the witness should fall within the definition of 'specially skilled' as laid down under section 48 of the Evidence Act.”
41. From the proceedings, it is evident that Mr. Tom Oyugi, the Appellant’s witness who testified as RW2 was not treated by the Appellant and indeed the court as an expert witness.
42. Therefore, contrary to the position held by the Appellant, the evidence by RW2 before the trial court was not that of an expert witness since his credentials had not been established prior to his testimony.
43. In any event, even when he testified for the Appellant that all monies owed to the Respondent had been paid, he failed match the payments with the specific invoices claimed by the Respondent. His evidence was general in nature and did not address the specific invoices that were in question.
44. For the reasons set out above, the appeal herein fails and the same is hereby dismissed with costs to the Respondents.
45. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 6TH DAY OF AUGUST 2024
ADO MOSES
JUDGE
Moses – Court Assistant
Agina for the Appellant.
Wansi h/b for Kirui for the Respondent.
1. This an appeal from the Judgment in the Nairobi Small Claims Court (SCCCOMM) case No. E012 OF 2021 delivered on 2nd December 2021 against the Appellant. In the Judgment, the trial court upheld the Respondent’s claim for Kshs. 999,999 against the Appellant for monies then owing under a contract between the parties.
2. The Respondent’s claim against the Appellant at the lower court was that sometime in 2016, the parties entered into a contractual agreement where the Respondent was to provide booking and travel services to the Appellant’s employees at a cost. The Respondent claimed that from the year 2019, the Appellant stopped making any payments under the said contract and that the amount then outstanding was Kshs. 999, 999/-.
3. Due to the failure by the Appellant to make the payments, the Respondent sued the Appellant seeking payment of the Kshs. 999,999/. In the claim, the Respondent listed specific invoices which it claimed remained unpaid.
4. On 2nd December 2021, the trial court delivered its Judgment upholding the Respondent’s claim. The court found that the Appellant had not demonstrated that the specific invoices listed by the Respondent in the claim had in fact been paid.
The Appeal
5. Aggrieved by the trial court’s Judgment, the Appellant lodged this appeal vide its Memorandum of Appeal dated 20th January 2022 and raised the following as the grounds of appeal; -
i. That the learned trial magistrate erred in law in failing to appreciate that the evidence tendered by the Appellant at trial proved full settlement of all invoices claimed by the Respondent.
ii. That the learned trial magistrate erred in law in failing to shift the evidentiary burden to the Respondent upon production of evidence by the Appellant to the effect that the Respondent had received from the Appellant all the monies claimed.
iii. That the learned trial magistrate erred in law in failing to consider the evidence and submissions of the Appellant and critically analyse the same and accord it due weight to the extent that it was able to prove and corroborate the Appellant’s statements that they did not owe any sums to the Respondent.
iv. That the learned erred in law by failing to consider the Respondent’s inability to rebut the Appellant’s reconciled account statements correlating all invoices raised and payments made.
6. Consequently, the Appellant prayed that the following reliefs be granted by this court; -
a) That the judgment/decree of the honourable court dated 2nd December 2021 be set aside.
b) The Respondent’s case be dismissed.
c) That the Respondent to bear the cost of this appeal.
7. The appeal was canvased by way of written submissions. Both parties complied and the Appellant filed its submissions dated 13th March 2024 whilst the Respondent filed theirs dated 29th April 2024.
8. Whereas the Appellant urged this court to allow the appeal and grant the reliefs sought, the Respondent on their part asserted that this appeal is one for dismissal with costs to the Respondent.
Analysis and determination
9. This is an appeal emanating from the Small Claims Court. Section 38 of the Small Claims Court Act which clothes this court with jurisdiction provides as follows in relation to appeals from that court; -
“(1)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.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.”
10. It therefore follows that in appeals originating from the Small Claims Court to this court can only on the points of law in terms of Section 38(1) of the Small Claims Act. consequently, this court cannot, in appeals emanating from the Small Claims Court, entertain an invitation to interfere with the factual findings of the trial court.
11. The duty and jurisdiction of this court when dealing with an appeal from Small Claims Court is comparable to that of the Court of Appeal when dealing with a matter on a second appeal. In Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR the Court of Appeal, distinguishing between matters of law and matters of fact stated as follows: -
“First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyse it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of a retrial and facts must be revisited and analysed a fresh, - see Selle and Another vs. Associated Motor Boat Company Ltd and Others (1968) EA 123. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.”
12. Again, in Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR the Court of Appeal further clarified that where a right of appeal is confined to questions of law only, an appellate court is duty bound to accept the findings of fact by the lower court. That it should not interfere with the findings of the trial on the factual issues unless it is apparent that, based on the evidence on record, no reasonable tribunal or court could have reached the same conclusion, in which case, the holding or decision would be bad in law and therefore qualify to be reviewed on a second appeal. The court stated as follows; -
“This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina versus Mugiria [1983] KLR 78, Kenya Breweries Ltd versus Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another versus Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. See also the English case of Martin versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 where in, it was held inter alia that, where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court (s) and resist the temptation to treat findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.”
13. Before delving into the substantive questions as framed by the Appellant in its memorandum of appeal, it is imperative for this court to first consider whether or not the issues raised and framed in the memorandum of appeal are matters of law and therefore falls within the jurisdiction of this court bestowed under section 38 of the Small Claims Act.
14. While the Appellants asserted that this appeal is on matters of law and that this court has jurisdiction to deal with the same pursuant to section 38 of the Small Claims Act, the Respondent on the other hand submitted that the appeal as presented by the Appellant does not raise even a single issue of law so as to attract the jurisdiction of this court.
15. I have perused the grounds of appeal as presented by the Appellant. I note that the major complaint by the Appellant is that the trial court erred in law in failing to shift the evidentiary burden to the Respondent after the Appellant had presented evidence that all monies owed to the Respondent had in fact been overpaid by Kshs. 32,797.60. In essence, the Appellant was questioning the trial court’s appreciation of when and how to shift the burden of proof in the course of a civil proceeding.
16. Burden of proof is a legal concept which in the Kenyan legal system is generally anchored under Sections 107, 108 and 109 of the Evidence Act Cap. 80 Laws of Kenya. In the case of Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) Mativo J (as he then was) stated the following regarding the burden of proof; -
“26. “Burden of Proof” is a legal term used to assign evidentiary responsibilities to parties in litigation. The party that carries the burden of proof must produce evidence to meet a threshold or “standard” in order to prove their claim. If a party fails to meet their burden of proof, their claim will fail. The general rule in civil cases is that the party who has the legal burden also has the evidential burden. If the Plaintiff does not discharge this legal burden, then the Plaintiff’s claim will fail. In civil suits, the plaintiff bears the burden of proof that the defendant's action or inaction caused injury to the Plaintiff, and the defendant bears the burden of proving an affirmative defense. If the claimant fails to discharge the burden of proof to prove its case, the claim will be dismissed. If, however the claimant does adduce some evidence and discharges the burden of proof so as to prove its own case, it is for the defendant to adduce evidence to counter that evidence of proof of the alleged facts. If after weighing the evidence in respect of any particular allegation of fact, the court decides whether the (1) the claimant has proved the fact, (2) the defendant has proved the fact, or (3) neither party has proved the fact.”
17. Shifting of the burden of proof in a trial essentially involves the changing of responsibility of proving or disproving of a point, by way evidence, from one party to the other. The question of who bears the burden of proof and circumstances under which the burden of proof may be shifted and on what conditions is undoubtedly a question of law.
18. In the premises, I therefore find and hold that the question of shifting of the burden of proof as raised by the Appellant in the instant appeal is clearly one of law and therefore fits within the ambit of section 38 (1) of the Small Claims Court Act. Consequently, this court has jurisdiction to entertain this appeal.
19. Having established that this court has jurisdiction to entertain this appeal, I will then proceed and examine the substance of the appeal with a view of establishing whether trial court erred in failing to shift the burden of proof to the Respondent under the circumstances alleged by the Appellant in its memorandum of appeal.
20. It is an established principle of law that whoever lays a claim before the court against another has the burden to prove it. Sections 107, 108 and 109 of the Evidence Act are unequivocal on this and provide as follows: -
“107. Burden of proof.
(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
108. Incidence of burden.
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.
109. Proof of a particular fact.
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.”
21. In this case, the burden to prove that monies owed had not been paid lay squarely with the Respondent. It is only after the Respondent discharged that burden, the legal burden, to the required standards, that the Appellant would be called upon to rebut the same by way of evidence.
22. The Court of Appeal in Mbuthia Macharia v Annah Mutua & Another [2017] eKLR stated the following regarding the burden of proof: -
“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.
23. The Halsbury’s Laws of England, 4th edition, Volume 17 at paras 13 and 14 discusses the burden of proof as follows; -
“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he had failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues. The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence.
24. I have reviewed the pleadings and the proceedings in this matter. I note that upon filing of the claim at the trial court, the Respondent particularized and provided copies of the invoices which they claimed remained unsettled from the Appellants. The Respondent’s managing director Ms. Vidya Jethwa on 7th September 2021 testified in court as PW1 and adopted in evidence her written statement of 29th July 2021. She testified that the Appellant owed the Respondent a sum of Kshs. 1,124,308/- and produced twenty-nine (29) invoices in that regard. The copies of the invoices are at pages 12 – 46 of the Record of Appeal.
25. The witness further testified that in the course of pursuing payment from the Appellants, parties exchanged correspondence where the Appellants vide their email of 8th May 2020 sought to among others, make a payment plan. I have checked and found that email correspondence between the parties at pages 16 to 18 of the record of appeal where Appellant’s representative while responding to the Respondent’s wrote that “Let me check Maxxis statement so that we can come up with a payment plan.”
26. From the pleadings, the evidence of PW1 and the documents submitted at trial, it is evident that the Respondent had actually particularized their claim against the Appellants. The Respondents had proved, on a preponderance of evidence, that there was a contractual agreement for supply of booking and ticketing services between the Respondent and the Appellant and that there were some monies owing from the Appellant under the contract. The Respondent produced in support of its claim invoices and email correspondence between the parties.
27. The Respondent having demonstrated by way of evidence, on a balance of probabilities, that there were monies owing from the Appellant to the Respondent under the contract, the burden then shifted to the Appellant to adduce evidence to dislodge the Respondent’s claim.
28. In seeking to dislodge the Respondent’s claim, I note that two witnesses testified in support of the Appellant’s position. The first was Mr. Geofrey Thuo, a director of the Appellant who testified as RW1 and adopted his witness statement of 10th August 2021. In examination-in chief, he told the trial court that the Appellant and Respondent were business partners and because of the partnership, the Respondent’s managing director was also managing the affairs of the Appellant. That the Respondent through its directors had access to the Appellant’s bank account at Diamond Trust Bank Limited and that the Respondents cashed out the monies in settlement of the debt. According to the witness, this demonstrated that no monies were owing from the Appellants to the Respondents under the contract.
29. On re-examination, the witness told court that Respondents were not signatories to the aforesaid Appellant’s bank account at Diamond Trust Bank Limited. The witness further told court that from the bank statement, there was no entry showing monies moving from the Appellant to the Respondent. That notwithstanding, the witness still insisted that all the monies owing to the Respondents had been fully settled.
30. The second witness for the Appellants Mr. Tom Oyugi, who testified as RW2 was the Appellant’s external auditor. His testimony was largely in line with that of RW1 and was to the effect that the Respondents being in charge of the business affairs of the Appellant, including the Appellant’s bank accounts, paid themselves. He testified that he did the reconciliations and established that no monies were owing from the Appellant to the Respondent under the contract.
31. The trial court after considering the evidence by both parties came to the conclusion that the Appellant was unable to link the payments allegedly made to the Respondent, with the invoices produced by the Respondent at trial as the evidence of the amounts then outstanding. The court stated that it was unable to draw a correlation to the invoice numbers, amounts, cheques and details of accounts and bank statements adduced by the Respondent as being evidence of payment.
32. In their submissions in this appeal, the Appellant argued that the trial court committed an error of law when it failed to shift the burden of proof to the Respondent after the Appellant had proved, by way of evidence in the trial court, that all the monies owed to the Respondent had been paid and that it was the Respondent who actually owed the Appellant a sum of Kshs. 32, 797.60 in line with the Appellant’s audit report.
33. I have considered the memorandum of appeal, the record of appeal and the parties’ rival submissions including the authorities cited by both Counsel in this appeal. I note that while the Respondent clearly particularized the invoices which according to them were owing from the Appellant and therefore remained unpaid, the Appellant’s response and evidence was like a pendulum. On one hand, the Appellant averred that the Respondent paid themselves since the Respondent was then in charge of the affairs of the Appellant, including their bank account at Diamond Trust Bank Limited. On the other hand, the Appellant stated and confirmed to court that the Respondent’s director was not a signatory to the Appellant’s said bank account. One then wonders how a person who is not a signatory in a bank account can pay themselves from monies in the bank.
34. Further, the Appellant produced in evidence a statement from Diamond Trust Bank Ltd in evidence. I have perused the whole of the proceedings and I have been unable to sight anywhere in the proceedings where the Appellant demonstrated an entry in the bank statements that exhibited that monies from the bank had in fact been transferred to the Respondent in satisfaction of the invoices in question. What is present in the proceedings is PW1’s evidence in confirmation that no such demonstration could be made from the bank statement.
35. Further, from the proceedings, I note that the Appellants produced two sets of cheques, some stamped, others unstamped where the Respondent is named as the payee. However, no evidence was provided by the Appellant that the cheques in fact cleared and that they were actually cashed by the Respondent in satisfaction of the specific invoices that the Respondent had claimed.
36. In view of the foregoing, I find as the trial court did, that the Appellant failed to sufficiently demonstrate, by way of evidence, that the invoices claimed by the Respondent had actually been paid.
37. Finally, it is important that I deal with the issue raised by the Appellant that the Respondent failed to produce evidence in rebuttal of the evidence in the audited statement of accounts by Shilasi and Associates which showed that all the monies owing to the Respondent had been paid, with a credit of Kshs. 32, 797.60. This report was produced as evidence by RW2, the Appellant’s external auditor.
38. The Appellant argued that the opinion expressed in audited statement of accounts was that of an expert and was more credible and that the Respondent needed to dislodge it with equally credible evidence. That the Respondent having failed to controvert the said expert report by producing a counter expert report, their claim against the Appellant could not succeed. In support of their position, the Appellant cited the case of Calvin Ouma Miganda v Sammy Traders Limited [2021] eKLR where the court held that; -
“31. This court fully associated itself with the holding in the case of Ali Mohamed Sunkar vs Diamond Trust Bank Ltd (Supra) where it was held that an expert report can only be challenged through a counter expert report.”
39. On their part, the Respondent submitted that RW2, the Appellant’s witness who produced the report was placed as a witness merely to introduce the audited statements and nothing more. That the appellants did not treat him as an expert witness. That he was simply an external auditor who was paid by the Appellant to provide them with an audited statement of accounts and that the witness did not meet the standards set under section 48 of the Evidence Act regarding the testimony by an expert witness.
40. The question whether or not Mr. Tom Oyugi, the Appellant’s witness who testified as RW2 and produced the report on the audited financial statements was an expert witness can best be answered by the following paragraph from the case of AG v Republic (Criminal Appeal E008 of 2021) [2022] KEHC 11299 (KLR) where Mativo J (as he then was), stated as follows; -
“The first and foremost requirement of a party who calls an expert witness is to establish the credentials of the person as an expert, or one who is especially skilled in that branch of science, to the satisfaction of the court. That, is, the witness should fall within the definition of 'specially skilled' as laid down under section 48 of the Evidence Act.”
41. From the proceedings, it is evident that Mr. Tom Oyugi, the Appellant’s witness who testified as RW2 was not treated by the Appellant and indeed the court as an expert witness.
42. Therefore, contrary to the position held by the Appellant, the evidence by RW2 before the trial court was not that of an expert witness since his credentials had not been established prior to his testimony.
43. In any event, even when he testified for the Appellant that all monies owed to the Respondent had been paid, he failed match the payments with the specific invoices claimed by the Respondent. His evidence was general in nature and did not address the specific invoices that were in question.
44. For the reasons set out above, the appeal herein fails and the same is hereby dismissed with costs to the Respondents.
45. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 6TH DAY OF AUGUST 2024
ADO MOSES
JUDGE
Moses – Court Assistant
Agina for the Appellant.
Wansi h/b for Kirui for the Respondent.