(Being Appeals from the Judgement of the Magistrates Court dated the 4th day of June, 2025 in MCCC No. E018 of 2025 at Bondo by Honorable Resident Magistrate, Chepchirchir Christabel Maiyo)
1. This Consolidated Appeal arises from the Judgment and Decree of the Resident Magistrate’s Court at Bondo (Hon. Chepchirchir Christabel Maiyo, RM) delivered on the 4th day of June 2025 in Bondo MCCC No. E018 of 2025. The trial court entered judgment in favor of the Plaintiffs (the 1st and 2nd Respondents herein) allowing their claim for special damages, refund of transit costs and dismissing the 1st and 2nd Defendants’ Counterclaim. Dissatisfied with that decision, the Appellants filed two separate appeals: Civil Appeal No. E041 of 2025 (filed by the 1st and 2nd Appellants) and Civil Appeal No. E042 of 2025 (filed by the 3rd Appellant). By an order of this Court, the two appeals were consolidated.
2. Aggrieved by the trial court’s decision of the trial court, the Appellants (Hussein Nyimbo Company Limited and Hussein Nyimbo) vide Civil Appeal No. E041 of 2025 filed a Memorandum of Appeal dated 2nd July 2025 raising the following grounds:
a. That the learned Magistrate erred in law and fact by failing to adequately evaluate and appreciate the evidence and facts presented by the Appellants during the trial.
b. That the learned Magistrate erred in law and fact by disregarding material legal and factual issues critical to a just determination of the case.
c. That the learned Magistrate erred in fact and law by failing to consider the Appellants' defence and counterclaim, which raised substantial triable issues.
d. That the learned Magistrate erred in fact and law by writing a judgment that was against the weight of evidence and facts adduced by the Appellants at the trial.
e. That the learned Magistrate erred in law and fact by holding that the Appellants' defence had no merit in the circumstances of the case contrary to the evidence on record.
3. Aggrieved by the decision of the trial court, the Appellant (Erick Amosi Ndindulu) vide Civil Appeal No.E042 of 2025 filed a Memorandum of Appeal dated 3rd July 2025 raising the following grounds:
a. That the learned Magistrate erred in law and in fact in finding the Appellant liable for the alleged loss of bags of fish feed without sufficient and cogent evidence.
b. That the learned Magistrate erred in relying on a purported confession by the Appellant without conducting a proper inquiry as to its voluntariness, authenticity, or evidentiary value in civil proceedings.
c. That the learned Magistrate erred in law in failing to consider that the Appellant was acting under the instructions of his employer and without a direct contractual relationship with the Respondents.
d. That the learned Magistrate erred in holding the Appellant jointly and severally liable without establishing any privity of contract or negligence on his part.
e. That the learned Magistrate misdirected herself in law and fact in entering judgment against the Appellant despite the lack of specific pleading or proof of individual liability.
f. That the learned Magistrate erred in fact and law by writing a judgment that was against the weight of evidence on record and facts adduced by the Appellant at the trial.
4. This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See Selle vs Associated Motor boat Co. Ltd [1968] EA 123.
5. By a Plaint dated 1st April 2025, the 1st Respondent (a limited liability company) and the 2nd Respondent (its manager) sued the Appellants and the OCS Bondo. The Respondents’ case was that on 14th March 2025, they contracted the 1st and 2nd Appellants to transport a consignment of 1,000 bags of fish feeds (weighing 25 tonnes valued at USD 18,000) from Lusaka, Zambia to Bondo Sirongo Beach, Kenya, for an agreed freight charge of USD 3,500.
6. The consignment was loaded onto the 1st Appellant's truck (Scania Registration No. T613 EDN / Trailer No. T214 DZX) which was driven by the 3rd Appellant, an employee of the 1st and 2nd Appellants.
7. The Respondents alleged that during transit, upon reaching the Zambia-Tanzania border, the 3rd Appellant tampered with the cargo, offloaded 349 bags of fish feeds, sold them to an unknown trader, resealed the truck and proceeded to deliver the depleted consignment to Kenya through the Isebania Border Post. Upon offloading at Bondo on 26th March 2025, a physical count revealed a shortage of 349 bags.
8. The 3rd Appellant was arrested and that he allegedly made a written out-of-court confession admitting to the theft of the 349 bags before the OCS Bondo. While criminal charges were subsequently dropped administratively by the ODPP, the Respondents instituted civil proceedings seeking Kshs. 975,240/- being the cost of the 349 missing bags; refund of freight and insurance costs totaling Kshs. 467,885/-; general damages for breach of contract, interest and costs.
9. In defense, the 1st and 2nd Appellants denied the existence of a direct contract with the Respondents asserting that they were instead contracted by an intermediary entity, "Lusaka One Innovations Limited." They further argued that the truck’s customs seals were checked and found intact at Nakonde (Zambia), Tunduma (Tanzania) and Isebania (Kenya) border posts indicating no tampering or theft in transit. They also filed a Counterclaim seeking the release of the detained truck and damages for loss of use (demurrage of USD 100/day for the container and USD 200/day for the truck).
10. The 3rd Appellant filed a separate defense, pleading that his out-of-court confession was extracted under coercion and duress without translation into a language he understood.
11. The matter proceeded by way of viva voce evidence.
12. Jiang Peng (PW1) was the manager, Snowball Agricultural Company Limited. He testified that on 14th March 2025, they had contracted the 1st and 2nd Appellants (Hussein Nyimbo Company Limited and Hussein Nyimbo) to transport a consignment of 1,000 bags of fish feeds from Lusaka, Zambia, to Bondo Sirongo Beach, Kenya. He stated that the cargo weighed 25 tonnes was valued at USD 18,000, and was carried for an agreed freight charge of USD 3,500. He further testified that the consignment had been loaded onto the 1st Appellant's truck Scania Registration No. T613 EDN / Trailer No. T214 DZX which was driven by the 3rd Appellant. He asserted that upon the truck's arrival at Bondo on 26th March 2025, he had personally supervised the physical offloading and counting of the cargo which revealed a deficit of 349 bags of fish feeds. He explained that the 3rd Appellant had subsequently been arrested and had made a voluntary, written out-of-court confession at Bondo Police Station admitting to the theft and sale of the 349 missing bags during transit. On cross examination, he admitted that he was not present at the loading point in Lusaka, Zambia when the 1,000 bags of fish feeds were packed into the container. He conceded that he did not personally witness the application or locking of the official customs seals at the point of origin. When confronted with the customs documents from the Nakonde, Tunduma and Isebania border posts, he acknowledged that the official transit records indicated that the serial numbers of the customs seals matched at all check points and were recorded as intact by customs officials. He further admitted that the invoice generated by the 1st and 2nd Appellants for the freight charges was addressed to "Lusaka One Innovations Limited" and not directly to Snowball Agricultural Company Limited. However, he disputed the assertion that his company had no agreement with the carriers stating that the carriers knew the destination and the identity of the cargo owner. When questioned on why the criminal charges against the driver were dropped by the ODPP, he stated that he was not privy to the administrative reasons behind the prosecution's internal decision but maintained that the physical shortage at Bondo was an indisputable fact. In re-examination, he clarified that while the invoice was routed through an intermediary agent, the Bill of Lading, Export Permits and clearing waybills all expressly named Snowball Agricultural Company Limited as the consignee and legal owner of the cargo. He re-emphasized that regardless of what the border seal records claimed, the truck arrived at its final destination in Bondo under the exclusive custody of the driver and a physical offloading count in his presence confirmed that 349 bags were physically missing from the container .
13. Erick Amosi Ndindulu (DW1), the driver testified that he was employed as a driver by the 1st and 2nd Appellants and had been tasked with driving the truck carrying the Respondents' cargo. He denied having tampered with the cargo, offloaded any bags or sold them to an unknown trader at the border. He asserted that the written out-of-court confession he had signed on 29th March 2025 at Bondo Police Station had been extracted under extreme police coercion, physical threat and duress. He further testified that the statement had been recorded in a language he did not fully understand and without the assistance of a certified interpreter. He maintained that the customs seals on the truck and trailer had remained fully intact and untampered with at the Nakonde, Tunduma, and Isebania border control points. Under cross-examination, he admitted that he was the sole custodian of the truck and its keys throughout the entire transit route from Lusaka to Bondo. He confirmed that he was accompanied during the police interrogation by a third-party representative named Emmanuel Njombe who had freely signed the out-of-court confession form as a witness. When pressed on the language used during the recording of the statement, he conceded that while he claimed not to understand English perfectly, the confession itself was written in Kiswahili, a language he admitted he could speak and read. He was hard-pressed to explain how the exact number of missing bags (349) came to be captured in his statement if he had no knowledge of the theft to which he responded that the police had provided that figure to him. He further admitted that he did not formally report any allegations of physical assault, torture or administrative coercion to a medical officer or higher police authority immediately after leaving Bondo Police Station. In re-examination, the witness stated that he only signed the document because he was kept in police custody for several days without communication and felt deeply intimidated by the station environment. He reiterated that his signature was given out of fear for his personal safety and that he was never given an independent opportunity to write the statement in his own words or have a legal representative present.
14. Hussein Nyimbo (DW2) testified that he was the director of Hussein Nyimbo Company Limited. He stated that his company had no direct contractual relationship or privity of contract with the Respondents. He explained that they had instead been contracted by an intermediary entity known as "Lusaka One Innovations Limited" through an agent named Amani Anzameni Mlanga, producing an invoice marked HN-2 to support this assertion. He further testified that his company had exercised all reasonable duty of care as a carrier. He stated that the transit records indicated that the customs seals on the truck and trailer were inspected and confirmed to be intact by customs officials at Nakonde (Zambia), Tunduma (Tanzania) and Isebania (Kenya). He contended that because the seals were unbroken, no theft could have occurred while the goods were in his company's custody and he prayed for the dismissal of the suit and the allowance of their counterclaim for demurrage. Under cross-examination, he admitted that his company operates as a commercial bailee for reward and routinely accepts cargo for delivery across East and Central Africa. He conceded that once a driver employed by his company is assigned a truck and a consignment, that driver acts as the direct agent of the company until final delivery is acknowledged by the recipient. He further admitted that his company did not obtain a signed delivery note from Snowball Agricultural Company Limited showing a successful delivery of the full 1,000 bags. He acknowledged that he had no independent physical proof or personal knowledge to contradict the physical shortage verified during offloading at Bondo, relying entirely on the assumption that intact customs seals meant no loss could have occurred. In re-examination, the witness clarified that in international road freight transit, carriers place strict reliance on the integrity of international customs seals. He explained that if a seal is intact upon arrival, any underlying cargo shortage is typically considered an issue of incorrect loading at the point of origin rather than a theft in transit which justified his position that his company was not at fault and was entitled to demurrage for the detention of the truck.
15. The Appeal was canvassed by way of written submissions. The parties filed and exchanged submissions.
16. It was argued by the Appellants that it was trite law that he who alleges must prove and that in this case, the burden lay on the Plaintiffs to prove the allegations made against the Defendants. Reference was made to Sections 107 and 108 of the Evidence Act (Chapter 80 of the Laws of Kenya), which provide:
Section 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.
Section 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.
17. It was submitted that the standard of proof in the matter was on a balance of probabilities. The jurisprudence on the burden of proof in civil matters was described as clear. Reference was made to the judgment of the High Court in Githaiga v Mwangi (Civil Appeal E064 of 2022) [2024] KEHC 13449 (KLR) (30 October 2024), which comprehensively addressed the aspect of evidence and the required probability test in civil matters. Reference was further made to the Court of Appeal holding in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, where it was 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 while the evidential burden is cast upon any party seeking to prove any particular fact which he desires the court to believe in its existence, as captured under Sections 109 and 112 of the Act.
18. It was further submitted that while the initial burden of proof lay with the Plaintiff, the same could shift to the Defendant depending on the circumstances of the case and the evidence tendered. In support of this, the holding in Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR was cited which reinforced that the legal burden of proof lies on the party asserting the affirmative of an issue under Section 107(1) of the Evidence Act, and that the failure to discharge that burden would result in the party failing under Section 108 of the Act if no evidence were given on either side.
19. It was urged that a court must rely on both exhibits and testimonies. It was argued that the practice in constitutional reviews where parties rely solely on submissions is not useful in cases of this nature because in those reviews, affidavit evidence already exists. In the present case, it was contended that no such evidence was produced meaning the civil standard could not be met. It was asserted that courts are not soothsayers or traditional seers to receive facts from the world beyond and that there must be concrete evidence rather than conjecture, surmise, hyperbole and guesswork. To define the balance of probability standard, the submissions cited Lord Nicholls of Birkenhead in RH and Others (Minors) [1996] AC 563, 586, who held that the balance of probability standard means a court is satisfied an event occurred if the court considers that on the evidence, the occurrence of the event was more likely than not. It was highlighted from the citation that when assessing probabilities, the court must keep in mind that the more serious the allegation, the less likely it is that the event occurred and thus the stronger the evidence should be before concluding that the allegation is established.
20. It was further submitted that if the probabilities are equal (a draw), the burden of proof is not discharged. The submissions cited the Court of Appeal's holding in Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, which referenced Denning J in Miller v Minister of Pensions [1947] 2 All ER 372. That authority established that while the degree of probability does not need to be as high as in a criminal case, if the probabilities are equal, the burden is not discharged and a draw is not enough to win; hence, if both parties are equally unconvincing, the party bearing the burden of proof must lose because the requisite standard has not been attained.
21. It was submitted that a keen perusal of the entire proceedings of the lower court revealed that the entire complaint was based on the alleged loss of the 349 bags. It was pointed out that during cross-examination of the 1st and 2nd Plaintiffs, no material was produced in court to comprehensively support the court's arrival at its "unfortunate destination." It was stated that the 1st and 2nd Respondents had merely alleged during cross-examination that they conducted a physical count but no physical report was tabled by them at the trial court. It was argued that the learned Magistrate failed to take into account that the 1st and 2nd Respondents had admitted during cross-examination that the Appellants had no contract with them. It was submitted that this admission also meant that the issue of vicarious liability could not arise. It was further pointed out that the 1st and 2nd Respondents had admitted in cross-examination that the container seal was secured and untampered with raising the question of how the trial court arrived at its determination without concrete evidence.
22. It was submitted that the evidentiary threshold is not merely a formal rule but one that goes to the heart of proceedings because of its adverse effects on the parties. It was highlighted that the 1st and 2nd Appellants had deposited Kenya Shillings Nine Hundred Thousand (Kshs. 900,000/-) to the High Court. It was also stated that the Appellants are engaged in the cargo and logistics business and the detention of their vehicle at the Bondo Police Station from April to 2nd July (while filing the Appeal) had been highly costly to them yet the trial court had completely failed to consider their Counterclaim. It was submitted that during cross-examination of the Appellants at the trial court, they were clear that they had only been contracted by one Amani, an agent who asked them to deliver the 1,000 fish feed bags to the Respondents. It was argued that if the 1st and 2nd Respondents conceded that the seal was intact, the Appellants should be disqualified from being held liable, a fact of which the trial court was aware but ignored.
23. It was pointed out that the only evidence showcased by the Respondents at the trial court consisted of photos of the Appellants' motor vehicle. It was argued that photos are not conclusive evidence that the bags were lost and that the trial court's decision on the alleged loss and theft of the 349 bags was based on pure second-guessing. It was submitted that the alleged confessions relied upon by the Respondents had been heavily challenged during the hearing. It was argued that the matter was criminal in nature and that the 3rd Appellant had been released by the criminal court resulting in the termination of the criminal case. It was contended that the trial court erred by using the same challenged confession to arrive at the impugned judgment.
24. It was submitted that the learned Magistrate erred by using the bill of lading to create an issue of vicarious liability against the Appellants. It was argued that the trial court merely made a "probable" finding that the goods could have been stolen or lost but that a deeper look at the evidence showed it did not meet the civil standard of proof. It was further urged that if the 3rd Appellant was found culpable of stealing the 349 bags, then that was his personal burden to carry. It was argued that the insistence on vicarious liability by the trial magistrate was a technical pathway used to place the entire blame for the alleged lost goods on the Appellants. It was pointed out that the Magistrate noted in her judgment that the driver (3rd Appellant) was not found criminally culpable and that the alleged confessions were improper. It was on this basis that the Appellants argued the learned Magistrate erred and the court was invited to re-examine the decision in Republic v Mohammed & another (Petition 39 of 2018) [2019] KESC 48 (KLR) (15 March 2019 ).
25. It was submitted that Section 27 of the Civil Procedure Act states:
(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
26. In support of this, the submissions cited David Kiptum Korir v Kenya Commercial Bank & another [2021] eKLR, which reiterated the holding in Morgan Air Cargo Limited v Everest Enterprises Limited [2014] eKLR, noting that the exercise of discretion regarding costs depends on the circumstances of each case and that the rule that "costs follow the event" is not a "one-size-fits-all" situation since circumstances differ from case to case. The Appellants humbly prayed that the court consider the circumstances of the case and exercise its discretion to award costs in their favor.
27. It was concluded that the Appellants had raised pertinent issues for consideration in the Appeal and that the evidence presented by the 1st and 2nd Respondents was insufficient to support the impugned decision. The Appellants reiterated their prayers as set out in the Memorandum of Appeal dated the 2nd day of July 2025 and prayed that the appeal be allowed.
28. It was submitted by the Respondents that the primary consideration of the lower court judgment was the issue of whether there was a contractual relationship between the Appellants and the Respondents. Further, it was noted that the trial magistrate went ahead and affirmed the position of the 1st and 2nd Appellants' vicarious liability for the acts and omissions of their employee/driver, the third Appellant. The Respondents stated that their submissions were equally founded on that finding which they proceeded to reiterate.
29. The Court was invited to make a finding that there was indeed a contract based on the Bill of Lading, which was described as the primary document for cross-border transport and/or freight, discussed as follows: According to Black's Law Dictionary, a Bill of Lading (B/L) is a document issued by a carrier or their agent to a shipper, acting as both a receipt for cargo and a contract for transportation. It serves as a receipt for the goods, a contract of carriage and a document of title enabling the holder to claim the goods upon delivery. It was submitted that this definition from Black's Law Dictionary was self-explanatory and given that both the Respondents and the 3rd Appellant annexed the subject Bill of Lading whose page two provided for "Loading Details" it was needless to state that the Bill of Lading was the contractual document that created the relationship between the parties to the suit.
30. The functions of the Bill of Lading contract were further synthesized as follows:
a. Receipt for Goods : The B/L confirms that the carrier (the Appellants herein) received the goods in the condition stated on the document.
b. Contract of Carriage : It outlines the terms and conditions of the transportation agreement between the shipper and the carrier (the Appellants and the 1st and 2nd Respondents).
c. Document of Title: The B/L represents ownership of the goods and allows the holder (usually the shipper, but could be a consignee or third party) to demand delivery of the goods upon arrival at the destination, according to Investopedia.
d. Legally Binding: The B/L is a legally binding document under maritime law, used for payment release and dispute resolution in international trade.
e. Purpose : It tracks the shipment's journey from the point of origin to its final destination.
31. Having established the contractual relationship between the parties, the next question posed was who should be held responsible for the goods lost in transit namely the 349 bags of fish feeds stolen by the employee/driver of the 1st and 2nd Appellants. It was argued that since the Bill of Lading's loading details expressly showed that the 3rd Appellant received items fully loaded in the truck and executed the loading details on page 2 of the Bill of Lading, it was needless to say that he alongside his employers must indemnify the Respondents for the loss. It was contended that losing a consignment through negligence or blatant theft showed that the Appellants lacked utmost good faith while executing the contract, meaning they must be cited for breach of contract and must indemnify the Respondents against the losses suffered as a result of the theft. It was at this juncture that the Respondents argued the principal must be brought to pay for the mess of his agent. It was highlighted that fortunately, the 2nd Appellant stated during his cross-examination that he was indeed aware that he is accountable for the liability of his agent or driver which was submitted to be trite law.
32. It was submitted that the express admission on oath corroborated the confession filed by the 1st and 2nd Respondents from the OCS Bondo. It was argued that while the confession form and statement may have been incomplete on the last page due to inadvertence occasioned by the urgency in filing a Certificate of Urgency, the confession given on oath effectively gave it life. In any event, it was argued that the confession recorded by the OCS and presented before the trial Court was never challenged by the 3rd Appellant or his employers (the 1st and 2nd Appellants) in any constitutional court before the Ombudsman or before IPOA. Consequently, it was submitted that they could not run away from the confession simply because some of its pages were left out. Since the 3rd Appellant confirmed to the court that the statement was indeed recorded during his session with the OCS, it could not be ignored and the Court was invited to examine the 3rd Appellant's testimony on cross-examination vis-à-vis what was captured in the confession as the finding of the Court would be consistent.
33. The Court was urged to find persuasion and fortitude in both confessions and to make a finding that the Respondents had proved their case not only on a balance of probabilities, but beyond a reasonable doubt. It was asserted that the Respondents' case had attained the legal threshold set under Sections 107 and 108 of the Evidence Act.
34. Reference was made to Mwangi v Wambugu [1984] KLR 453, where the Court stated:
"A Court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the judge is shown demonstrably to have acted on wrong principle in reaching the finding; and an appellate court is not bound to accept the trial judge's finding of fact if it appears either that he has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally."
35. Consequently, the Respondents prayed that the Court uphold the lower Court Judgment and/or make adjustments to the figures to align with the prayers sought in the Plaint as well as the Defense to Counterclaim filed by the Respondents. Furthermore, in light of the finding of a breach of contract on the part of the Appellants, it was prayed that the award of general damages sought in the Plaint should also be granted as the trial court had failed to do so.
36. I have considered the record of appeal and the rival submissions tendered by parties. I find that the sole issue for determination is whether the Appeal has merit.
37. The 1st and 2nd Appellants heavily contended that there was no privity of contract between them and the Respondents. They pointed to their own Invoice (marked HN-2) indicating they were contracted by "Lusaka
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1. This Consolidated Appeal arises from the Judgment and Decree of the Resident Magistrate’s Court at Bondo (Hon. Chepchirchir Christabel Maiyo, RM) delivered on the 4th day of June 2025 in Bondo MCCC No. E018 of 2025. The trial court entered judgment in favor of the Plaintiffs (the 1st and 2nd Respondents herein) allowing their claim for special damages, refund of transit costs and dismissing the 1st and 2nd Defendants’ Counterclaim. Dissatisfied with that decision, the Appellants filed two separate appeals: Civil Appeal No. E041 of 2025 (filed by the 1st and 2nd Appellants) and Civil Appeal No. E042 of 2025 (filed by the 3rd Appellant). By an order of this Court, the two appeals were consolidated.
2. Aggrieved by the trial court’s decision of the trial court, the Appellants (Hussein Nyimbo Company Limited and Hussein Nyimbo) vide Civil Appeal No. E041 of 2025 filed a Memorandum of Appeal dated 2nd July 2025 raising the following grounds:
a. That the learned Magistrate erred in law and fact by failing to adequately evaluate and appreciate the evidence and facts presented by the Appellants during the trial.
b. That the learned Magistrate erred in law and fact by disregarding material legal and factual issues critical to a just determination of the case.
c. That the learned Magistrate erred in fact and law by failing to consider the Appellants' defence and counterclaim, which raised substantial triable issues.
d. That the learned Magistrate erred in fact and law by writing a judgment that was against the weight of evidence and facts adduced by the Appellants at the trial.
e. That the learned Magistrate erred in law and fact by holding that the Appellants' defence had no merit in the circumstances of the case contrary to the evidence on record.
3. Aggrieved by the decision of the trial court, the Appellant (Erick Amosi Ndindulu) vide Civil Appeal No.E042 of 2025 filed a Memorandum of Appeal dated 3rd July 2025 raising the following grounds:
a. That the learned Magistrate erred in law and in fact in finding the Appellant liable for the alleged loss of bags of fish feed without sufficient and cogent evidence.
b. That the learned Magistrate erred in relying on a purported confession by the Appellant without conducting a proper inquiry as to its voluntariness, authenticity, or evidentiary value in civil proceedings.
c. That the learned Magistrate erred in law in failing to consider that the Appellant was acting under the instructions of his employer and without a direct contractual relationship with the Respondents.
d. That the learned Magistrate erred in holding the Appellant jointly and severally liable without establishing any privity of contract or negligence on his part.
e. That the learned Magistrate misdirected herself in law and fact in entering judgment against the Appellant despite the lack of specific pleading or proof of individual liability.
f. That the learned Magistrate erred in fact and law by writing a judgment that was against the weight of evidence on record and facts adduced by the Appellant at the trial.
4. This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See Selle vs Associated Motor boat Co. Ltd [1968] EA 123.
5. By a Plaint dated 1st April 2025, the 1st Respondent (a limited liability company) and the 2nd Respondent (its manager) sued the Appellants and the OCS Bondo. The Respondents’ case was that on 14th March 2025, they contracted the 1st and 2nd Appellants to transport a consignment of 1,000 bags of fish feeds (weighing 25 tonnes valued at USD 18,000) from Lusaka, Zambia to Bondo Sirongo Beach, Kenya, for an agreed freight charge of USD 3,500.
6. The consignment was loaded onto the 1st Appellant's truck (Scania Registration No. T613 EDN / Trailer No. T214 DZX) which was driven by the 3rd Appellant, an employee of the 1st and 2nd Appellants.
7. The Respondents alleged that during transit, upon reaching the Zambia-Tanzania border, the 3rd Appellant tampered with the cargo, offloaded 349 bags of fish feeds, sold them to an unknown trader, resealed the truck and proceeded to deliver the depleted consignment to Kenya through the Isebania Border Post. Upon offloading at Bondo on 26th March 2025, a physical count revealed a shortage of 349 bags.
8. The 3rd Appellant was arrested and that he allegedly made a written out-of-court confession admitting to the theft of the 349 bags before the OCS Bondo. While criminal charges were subsequently dropped administratively by the ODPP, the Respondents instituted civil proceedings seeking Kshs. 975,240/- being the cost of the 349 missing bags; refund of freight and insurance costs totaling Kshs. 467,885/-; general damages for breach of contract, interest and costs.
9. In defense, the 1st and 2nd Appellants denied the existence of a direct contract with the Respondents asserting that they were instead contracted by an intermediary entity, "Lusaka One Innovations Limited." They further argued that the truck’s customs seals were checked and found intact at Nakonde (Zambia), Tunduma (Tanzania) and Isebania (Kenya) border posts indicating no tampering or theft in transit. They also filed a Counterclaim seeking the release of the detained truck and damages for loss of use (demurrage of USD 100/day for the container and USD 200/day for the truck).
10. The 3rd Appellant filed a separate defense, pleading that his out-of-court confession was extracted under coercion and duress without translation into a language he understood.
11. The matter proceeded by way of viva voce evidence.
12. Jiang Peng (PW1) was the manager, Snowball Agricultural Company Limited. He testified that on 14th March 2025, they had contracted the 1st and 2nd Appellants (Hussein Nyimbo Company Limited and Hussein Nyimbo) to transport a consignment of 1,000 bags of fish feeds from Lusaka, Zambia, to Bondo Sirongo Beach, Kenya. He stated that the cargo weighed 25 tonnes was valued at USD 18,000, and was carried for an agreed freight charge of USD 3,500. He further testified that the consignment had been loaded onto the 1st Appellant's truck Scania Registration No. T613 EDN / Trailer No. T214 DZX which was driven by the 3rd Appellant. He asserted that upon the truck's arrival at Bondo on 26th March 2025, he had personally supervised the physical offloading and counting of the cargo which revealed a deficit of 349 bags of fish feeds. He explained that the 3rd Appellant had subsequently been arrested and had made a voluntary, written out-of-court confession at Bondo Police Station admitting to the theft and sale of the 349 missing bags during transit. On cross examination, he admitted that he was not present at the loading point in Lusaka, Zambia when the 1,000 bags of fish feeds were packed into the container. He conceded that he did not personally witness the application or locking of the official customs seals at the point of origin. When confronted with the customs documents from the Nakonde, Tunduma and Isebania border posts, he acknowledged that the official transit records indicated that the serial numbers of the customs seals matched at all check points and were recorded as intact by customs officials. He further admitted that the invoice generated by the 1st and 2nd Appellants for the freight charges was addressed to "Lusaka One Innovations Limited" and not directly to Snowball Agricultural Company Limited. However, he disputed the assertion that his company had no agreement with the carriers stating that the carriers knew the destination and the identity of the cargo owner. When questioned on why the criminal charges against the driver were dropped by the ODPP, he stated that he was not privy to the administrative reasons behind the prosecution's internal decision but maintained that the physical shortage at Bondo was an indisputable fact. In re-examination, he clarified that while the invoice was routed through an intermediary agent, the Bill of Lading, Export Permits and clearing waybills all expressly named Snowball Agricultural Company Limited as the consignee and legal owner of the cargo. He re-emphasized that regardless of what the border seal records claimed, the truck arrived at its final destination in Bondo under the exclusive custody of the driver and a physical offloading count in his presence confirmed that 349 bags were physically missing from the container .
13. Erick Amosi Ndindulu (DW1), the driver testified that he was employed as a driver by the 1st and 2nd Appellants and had been tasked with driving the truck carrying the Respondents' cargo. He denied having tampered with the cargo, offloaded any bags or sold them to an unknown trader at the border. He asserted that the written out-of-court confession he had signed on 29th March 2025 at Bondo Police Station had been extracted under extreme police coercion, physical threat and duress. He further testified that the statement had been recorded in a language he did not fully understand and without the assistance of a certified interpreter. He maintained that the customs seals on the truck and trailer had remained fully intact and untampered with at the Nakonde, Tunduma, and Isebania border control points. Under cross-examination, he admitted that he was the sole custodian of the truck and its keys throughout the entire transit route from Lusaka to Bondo. He confirmed that he was accompanied during the police interrogation by a third-party representative named Emmanuel Njombe who had freely signed the out-of-court confession form as a witness. When pressed on the language used during the recording of the statement, he conceded that while he claimed not to understand English perfectly, the confession itself was written in Kiswahili, a language he admitted he could speak and read. He was hard-pressed to explain how the exact number of missing bags (349) came to be captured in his statement if he had no knowledge of the theft to which he responded that the police had provided that figure to him. He further admitted that he did not formally report any allegations of physical assault, torture or administrative coercion to a medical officer or higher police authority immediately after leaving Bondo Police Station. In re-examination, the witness stated that he only signed the document because he was kept in police custody for several days without communication and felt deeply intimidated by the station environment. He reiterated that his signature was given out of fear for his personal safety and that he was never given an independent opportunity to write the statement in his own words or have a legal representative present.
14. Hussein Nyimbo (DW2) testified that he was the director of Hussein Nyimbo Company Limited. He stated that his company had no direct contractual relationship or privity of contract with the Respondents. He explained that they had instead been contracted by an intermediary entity known as "Lusaka One Innovations Limited" through an agent named Amani Anzameni Mlanga, producing an invoice marked HN-2 to support this assertion. He further testified that his company had exercised all reasonable duty of care as a carrier. He stated that the transit records indicated that the customs seals on the truck and trailer were inspected and confirmed to be intact by customs officials at Nakonde (Zambia), Tunduma (Tanzania) and Isebania (Kenya). He contended that because the seals were unbroken, no theft could have occurred while the goods were in his company's custody and he prayed for the dismissal of the suit and the allowance of their counterclaim for demurrage. Under cross-examination, he admitted that his company operates as a commercial bailee for reward and routinely accepts cargo for delivery across East and Central Africa. He conceded that once a driver employed by his company is assigned a truck and a consignment, that driver acts as the direct agent of the company until final delivery is acknowledged by the recipient. He further admitted that his company did not obtain a signed delivery note from Snowball Agricultural Company Limited showing a successful delivery of the full 1,000 bags. He acknowledged that he had no independent physical proof or personal knowledge to contradict the physical shortage verified during offloading at Bondo, relying entirely on the assumption that intact customs seals meant no loss could have occurred. In re-examination, the witness clarified that in international road freight transit, carriers place strict reliance on the integrity of international customs seals. He explained that if a seal is intact upon arrival, any underlying cargo shortage is typically considered an issue of incorrect loading at the point of origin rather than a theft in transit which justified his position that his company was not at fault and was entitled to demurrage for the detention of the truck.
15. The Appeal was canvassed by way of written submissions. The parties filed and exchanged submissions.
16. It was argued by the Appellants that it was trite law that he who alleges must prove and that in this case, the burden lay on the Plaintiffs to prove the allegations made against the Defendants. Reference was made to Sections 107 and 108 of the Evidence Act (Chapter 80 of the Laws of Kenya), which provide:
Section 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.
Section 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.
17. It was submitted that the standard of proof in the matter was on a balance of probabilities. The jurisprudence on the burden of proof in civil matters was described as clear. Reference was made to the judgment of the High Court in Githaiga v Mwangi (Civil Appeal E064 of 2022) [2024] KEHC 13449 (KLR) (30 October 2024), which comprehensively addressed the aspect of evidence and the required probability test in civil matters. Reference was further made to the Court of Appeal holding in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, where it was 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 while the evidential burden is cast upon any party seeking to prove any particular fact which he desires the court to believe in its existence, as captured under Sections 109 and 112 of the Act.
18. It was further submitted that while the initial burden of proof lay with the Plaintiff, the same could shift to the Defendant depending on the circumstances of the case and the evidence tendered. In support of this, the holding in Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR was cited which reinforced that the legal burden of proof lies on the party asserting the affirmative of an issue under Section 107(1) of the Evidence Act, and that the failure to discharge that burden would result in the party failing under Section 108 of the Act if no evidence were given on either side.
19. It was urged that a court must rely on both exhibits and testimonies. It was argued that the practice in constitutional reviews where parties rely solely on submissions is not useful in cases of this nature because in those reviews, affidavit evidence already exists. In the present case, it was contended that no such evidence was produced meaning the civil standard could not be met. It was asserted that courts are not soothsayers or traditional seers to receive facts from the world beyond and that there must be concrete evidence rather than conjecture, surmise, hyperbole and guesswork. To define the balance of probability standard, the submissions cited Lord Nicholls of Birkenhead in RH and Others (Minors) [1996] AC 563, 586, who held that the balance of probability standard means a court is satisfied an event occurred if the court considers that on the evidence, the occurrence of the event was more likely than not. It was highlighted from the citation that when assessing probabilities, the court must keep in mind that the more serious the allegation, the less likely it is that the event occurred and thus the stronger the evidence should be before concluding that the allegation is established.
20. It was further submitted that if the probabilities are equal (a draw), the burden of proof is not discharged. The submissions cited the Court of Appeal's holding in Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, which referenced Denning J in Miller v Minister of Pensions [1947] 2 All ER 372. That authority established that while the degree of probability does not need to be as high as in a criminal case, if the probabilities are equal, the burden is not discharged and a draw is not enough to win; hence, if both parties are equally unconvincing, the party bearing the burden of proof must lose because the requisite standard has not been attained.
21. It was submitted that a keen perusal of the entire proceedings of the lower court revealed that the entire complaint was based on the alleged loss of the 349 bags. It was pointed out that during cross-examination of the 1st and 2nd Plaintiffs, no material was produced in court to comprehensively support the court's arrival at its "unfortunate destination." It was stated that the 1st and 2nd Respondents had merely alleged during cross-examination that they conducted a physical count but no physical report was tabled by them at the trial court. It was argued that the learned Magistrate failed to take into account that the 1st and 2nd Respondents had admitted during cross-examination that the Appellants had no contract with them. It was submitted that this admission also meant that the issue of vicarious liability could not arise. It was further pointed out that the 1st and 2nd Respondents had admitted in cross-examination that the container seal was secured and untampered with raising the question of how the trial court arrived at its determination without concrete evidence.
22. It was submitted that the evidentiary threshold is not merely a formal rule but one that goes to the heart of proceedings because of its adverse effects on the parties. It was highlighted that the 1st and 2nd Appellants had deposited Kenya Shillings Nine Hundred Thousand (Kshs. 900,000/-) to the High Court. It was also stated that the Appellants are engaged in the cargo and logistics business and the detention of their vehicle at the Bondo Police Station from April to 2nd July (while filing the Appeal) had been highly costly to them yet the trial court had completely failed to consider their Counterclaim. It was submitted that during cross-examination of the Appellants at the trial court, they were clear that they had only been contracted by one Amani, an agent who asked them to deliver the 1,000 fish feed bags to the Respondents. It was argued that if the 1st and 2nd Respondents conceded that the seal was intact, the Appellants should be disqualified from being held liable, a fact of which the trial court was aware but ignored.
23. It was pointed out that the only evidence showcased by the Respondents at the trial court consisted of photos of the Appellants' motor vehicle. It was argued that photos are not conclusive evidence that the bags were lost and that the trial court's decision on the alleged loss and theft of the 349 bags was based on pure second-guessing. It was submitted that the alleged confessions relied upon by the Respondents had been heavily challenged during the hearing. It was argued that the matter was criminal in nature and that the 3rd Appellant had been released by the criminal court resulting in the termination of the criminal case. It was contended that the trial court erred by using the same challenged confession to arrive at the impugned judgment.
24. It was submitted that the learned Magistrate erred by using the bill of lading to create an issue of vicarious liability against the Appellants. It was argued that the trial court merely made a "probable" finding that the goods could have been stolen or lost but that a deeper look at the evidence showed it did not meet the civil standard of proof. It was further urged that if the 3rd Appellant was found culpable of stealing the 349 bags, then that was his personal burden to carry. It was argued that the insistence on vicarious liability by the trial magistrate was a technical pathway used to place the entire blame for the alleged lost goods on the Appellants. It was pointed out that the Magistrate noted in her judgment that the driver (3rd Appellant) was not found criminally culpable and that the alleged confessions were improper. It was on this basis that the Appellants argued the learned Magistrate erred and the court was invited to re-examine the decision in Republic v Mohammed & another (Petition 39 of 2018) [2019] KESC 48 (KLR) (15 March 2019 ).
25. It was submitted that Section 27 of the Civil Procedure Act states:
(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
26. In support of this, the submissions cited David Kiptum Korir v Kenya Commercial Bank & another [2021] eKLR, which reiterated the holding in Morgan Air Cargo Limited v Everest Enterprises Limited [2014] eKLR, noting that the exercise of discretion regarding costs depends on the circumstances of each case and that the rule that "costs follow the event" is not a "one-size-fits-all" situation since circumstances differ from case to case. The Appellants humbly prayed that the court consider the circumstances of the case and exercise its discretion to award costs in their favor.
27. It was concluded that the Appellants had raised pertinent issues for consideration in the Appeal and that the evidence presented by the 1st and 2nd Respondents was insufficient to support the impugned decision. The Appellants reiterated their prayers as set out in the Memorandum of Appeal dated the 2nd day of July 2025 and prayed that the appeal be allowed.
28. It was submitted by the Respondents that the primary consideration of the lower court judgment was the issue of whether there was a contractual relationship between the Appellants and the Respondents. Further, it was noted that the trial magistrate went ahead and affirmed the position of the 1st and 2nd Appellants' vicarious liability for the acts and omissions of their employee/driver, the third Appellant. The Respondents stated that their submissions were equally founded on that finding which they proceeded to reiterate.
29. The Court was invited to make a finding that there was indeed a contract based on the Bill of Lading, which was described as the primary document for cross-border transport and/or freight, discussed as follows: According to Black's Law Dictionary, a Bill of Lading (B/L) is a document issued by a carrier or their agent to a shipper, acting as both a receipt for cargo and a contract for transportation. It serves as a receipt for the goods, a contract of carriage and a document of title enabling the holder to claim the goods upon delivery. It was submitted that this definition from Black's Law Dictionary was self-explanatory and given that both the Respondents and the 3rd Appellant annexed the subject Bill of Lading whose page two provided for "Loading Details" it was needless to state that the Bill of Lading was the contractual document that created the relationship between the parties to the suit.
30. The functions of the Bill of Lading contract were further synthesized as follows:
a. Receipt for Goods : The B/L confirms that the carrier (the Appellants herein) received the goods in the condition stated on the document.
b. Contract of Carriage : It outlines the terms and conditions of the transportation agreement between the shipper and the carrier (the Appellants and the 1st and 2nd Respondents).
c. Document of Title: The B/L represents ownership of the goods and allows the holder (usually the shipper, but could be a consignee or third party) to demand delivery of the goods upon arrival at the destination, according to Investopedia.
d. Legally Binding: The B/L is a legally binding document under maritime law, used for payment release and dispute resolution in international trade.
e. Purpose : It tracks the shipment's journey from the point of origin to its final destination.
31. Having established the contractual relationship between the parties, the next question posed was who should be held responsible for the goods lost in transit namely the 349 bags of fish feeds stolen by the employee/driver of the 1st and 2nd Appellants. It was argued that since the Bill of Lading's loading details expressly showed that the 3rd Appellant received items fully loaded in the truck and executed the loading details on page 2 of the Bill of Lading, it was needless to say that he alongside his employers must indemnify the Respondents for the loss. It was contended that losing a consignment through negligence or blatant theft showed that the Appellants lacked utmost good faith while executing the contract, meaning they must be cited for breach of contract and must indemnify the Respondents against the losses suffered as a result of the theft. It was at this juncture that the Respondents argued the principal must be brought to pay for the mess of his agent. It was highlighted that fortunately, the 2nd Appellant stated during his cross-examination that he was indeed aware that he is accountable for the liability of his agent or driver which was submitted to be trite law.
32. It was submitted that the express admission on oath corroborated the confession filed by the 1st and 2nd Respondents from the OCS Bondo. It was argued that while the confession form and statement may have been incomplete on the last page due to inadvertence occasioned by the urgency in filing a Certificate of Urgency, the confession given on oath effectively gave it life. In any event, it was argued that the confession recorded by the OCS and presented before the trial Court was never challenged by the 3rd Appellant or his employers (the 1st and 2nd Appellants) in any constitutional court before the Ombudsman or before IPOA. Consequently, it was submitted that they could not run away from the confession simply because some of its pages were left out. Since the 3rd Appellant confirmed to the court that the statement was indeed recorded during his session with the OCS, it could not be ignored and the Court was invited to examine the 3rd Appellant's testimony on cross-examination vis-à-vis what was captured in the confession as the finding of the Court would be consistent.
33. The Court was urged to find persuasion and fortitude in both confessions and to make a finding that the Respondents had proved their case not only on a balance of probabilities, but beyond a reasonable doubt. It was asserted that the Respondents' case had attained the legal threshold set under Sections 107 and 108 of the Evidence Act.
34. Reference was made to Mwangi v Wambugu [1984] KLR 453, where the Court stated:
"A Court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the judge is shown demonstrably to have acted on wrong principle in reaching the finding; and an appellate court is not bound to accept the trial judge's finding of fact if it appears either that he has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally."
35. Consequently, the Respondents prayed that the Court uphold the lower Court Judgment and/or make adjustments to the figures to align with the prayers sought in the Plaint as well as the Defense to Counterclaim filed by the Respondents. Furthermore, in light of the finding of a breach of contract on the part of the Appellants, it was prayed that the award of general damages sought in the Plaint should also be granted as the trial court had failed to do so.
36. I have considered the record of appeal and the rival submissions tendered by parties. I find that the sole issue for determination is whether the Appeal has merit.
37. The 1st and 2nd Appellants heavily contended that there was no privity of contract between them and the Respondents. They pointed to their own Invoice (marked HN-2) indicating they were contracted by "Lusaka
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