REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILLIMANI LAW COURTS
CIVIL APPEAL NO. E046 OF 2025
JACOB MBINDA MUSYIMI….…….…..……….…………...…. APPELLANT
VERSUS
RAELI HYDRO SYSTEMS LIMITED…………………………. RESPONDENT
( BEING AN APPEAL FROM THE JUDGMENT/DECREE OF HON .C.A. OKUMU (RM-ADJUDICATOR) DELIVERED ON 2 nd DAY OF MAY 2025 IN NAIROBI MILLIMANI SCC COMM NO E17151 OF 2024 )
BETWEEN
RAELI HYDRO SYSTEMS LIMITED...……………………………. PLAINTIFF
VERSUS
JACOB MBINDA MUSYIMI ………………………..………..…….DEFENDANT
J U D G M E N T
A. Introduction
1. This Appeal arises from the judgment of Hon C.A. OKUMU Resident Magistrate/Adjudicator dated 2 nd May 2025, where she held that the respondent had on a balance of probability established that he was owned the sum claimed of Kshs 823,880/= by the appellant and entered judgment for this sum in his favour plus interest thereon from the date of filing the suit until payment in full. Costs of the said suit were also assessed at Ksh 90,000/= all inclusive.
2. The background to this dispute is that the respondent did file their statement of claim, stating that they were a limited liability company that dealt exclusively in borehole drilling and equipping works. Sometime in June 2024, the appellant had contracted them to drill and equip a borehole in his parcel of land located within Konza area in Makueni County at an agreed contract sum of Kshs 823,880/= for the borehole drilling and to have it fully equipped at an agreed sum of Kshs 1,872,500/= , which contractual sum totaled to Kshs 2,696,380/=.
3. It was the respondent’s contention that they fully implemented the entire scope of the contract as agreed and the appellant paid them a sum of Kshs 1,872,500/= but reneged and/or refused to pay the outstanding balance of Kshs 823,880/= under the pretext of poor workmanship and alleged comparative high cost of the entire project in comparison to quotations received from other industry players dealing in the respondent’s line of business. The respondent therefore prayed the appellant be directed to pay the outstanding balance of Kshs 823,880/= plus interest at court rates until payment of the outstanding sum in full.
4. In response, the appellant confirmed that he did contract the respondent to sink a borehole for him and they did proceed to issue him with a quotation detailing the quantities and cost of material to be utilized in fulfilling the said works. Unfortunately, the respondent had proceeded to do shoddy work and utilized substandard materials contrary to what was agreed upon and he had to stop the works being undertaken until the respondent either replaces the substandard materials used and/or until he notified them on the forward.
5. Unfortunately, the respondent was not willing to rectify the mistakes noted and he therefore had to contract a different contractor, being Davis & shirtliff who finalized the works at an extra cost, which they incured. It was the appellants further averment that he had overpaid the respondent to the tune of Kshs 115,165.00/= and counterclaimed to be refunded the said amount as the respondent had used substandard material contrary to what was agreed upon, and quoted and billed for 34 solar panels, but only connected 20 leaving the rest installed but not connected, thereby causing unnecessary loss to the respondent.
6. The trial proceeded under Section 30 of the small claims Act , and the trial magistrate having considered the pleadings filed, witness statements, the supporting documents and parties’ submissions held that the respondent had on a balance of probability proved that indeed he was owed the sum of Kshs 823,880/= and thus proceed to enter judgment in his favour for this sum plus interest thereon at court rates from the date of filing the suit, until date of payment in full. The appellants counter claim was dismissed and costs of the said suit assessed at Kshs 90,000/=.
7. Being aggrieved by the said judgement the appellant filed their memorandum of appeal dated 15 th May 2025, where they raised Seven (7) grounds of appeal, namely that;
a) That the trial Adjudicator erred in law and fact when she entered judgment in favour of the claimant without consideration of the Appellants evidence on record.
b) That the trial adjudicator failed to analyse and review the evidence tendered by the appellant thereby arriving at an erroneous determination after relying on the claimant’s case only.
c) That the Trial court proceeded as though the case was not defended as the learned Adjudicator failed to apply her mind to the Appellants case.
d) That the Trial Adjudicator failed to consider Appellant’s counterclaim and evidence in support tendered only to arbitrarily dismiss the same.
e) That the Honourable court failed to give reasons for dismissal of the counterclaim.
f) That the Trial Magistrate did not appreciate the substance and context in which the counter claim was brought thereby dismissing the same without considering its merits.
g) That the learned Magistrate failed to take into account the Appellant’s submissions in rendering the judgment.
8. The appellant thus urged this court to find that this Appeal has merit, it be allowed and the judgment of the trial court dated 2 nd May 2025 be set aside and substituted with an order dismissing the respondents suit and also allowing the counterclaim filed as against the respondent herein. The appellant also prayed to be awarded costs of this Appeal.
B. Analysis and Determination
9. I have considered this appeal, the parties respective submissions filed, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being an appeal from the Small Claims Court, it is important to point out that Section 38 of the Small Claims Court Act provides that appeals from the said court shall be only on issues of law.
10. An appeal limited to matters of law does not permit the appellate court to substitute the tribunal's decision with its own conclusions based on its own analysis and appreciation of the facts. In John Munuve Mati Vr The returning officer, Mwingi North Constituency & 2 others (2018) eKLR , what amounts to “matters of law” was described as;
(38) The interpretation or construction of the constitution, statute, or regulations made thereunder or their application to the sets of facts established by the trial court. As far as facts are concerned, our engagement with them is limited to background and context, and to satisfy ourselves, when the issue is raised, whether the conclusions of the trial judge are based on the evidence on record or whether they are so perverse that no reasonable tribunal would have arrived at them. We cannot be drawn into consideration of the credibility of witnesses or which witnesses are more believable than others; by law, that is the province of the trial court.
11. This Appeal turns one issue, which is whether the trial magistrate correctly determined the question of burden of proof. The halsbury’s laws of England, 4 th Edition, Volume 17 at para 13 and 14 where it states that;
“The legal burden is the burden of proof which remains constant through a trial; it is the burden of establishing the facts and contentions which will support the parties case. If at the conclusion of the trial he has 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 essential to his case. There may therefore be separate burdens in a case with separate issues.
{16} The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutions evidential burden. Therefore, while both legal and evidential burden initially rests upon the appellant, the evidential burden may shift in the course of trial depending on the evidence adduced. As to 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 .”
12. In the case of Evans Nyakwana Vs Cleophas Rwana ongaro ( 2015) eKLR it was held that
“ As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purpose of section 107(i) of the Evidence Act, Chapter 80 laws of Kenya. Furthermore the evidential burden…… is cast upon any party, the burden of proving any particular fact which he desired the court to believe in its existence. That is captured in section 109 and 112 of the law that proof of that fact shall lie on any particular person….. The appellant discharged that burden and as section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
13. The appellant admitted in the statement of response filed, that he contracted the respondent to sink a borehole for him at his farm in Makueni based on the quotation issued and cost of material to be used. He did not expressly deny the cost of the said project, but justified not fully settling the contracted sum as the respondent undertook shoddy work and utilized substandard materials contrary to what was agreed upon and billed. Further since the respondent was not willing to rectify the mistakes noted he contracted a different firm, being Davis & Shirtliff who finalized the work at an extra cost of Kshs 115,165.00/= , which he sought refund for.
14. Based on the pleadings filed and admissions made in the statement of response, the respondent did establish their case on a balance of probability and the evidential burden shifted to the appellant to prove that the works undertaken were substandard and therefore were not entitled to pay any more sums under the contract to the respondent. Unfortunately, he failed to do so as the photographs presented, price difference table and/or sales quotation from Davis & Shirtliff was not an effective way of proving substandard work. He ought to have provided a technical report outlining specific defects and associated costs incurred to remedy the same.
15. It is also noted that no proof was provided to show that the appellant employed a different contractor to finish the incomplete works nor did the sales quotation from Davis & Shirtliff, prove purchase of the associated equipment needed to setup the borehole. The trial Magistrate therefore did not err in arriving at her conclusion that the respondent had proved his case and dismissing the appellants counter claim.
C . Disposition
16. Having arrived at the above finding, I do find and hold that this Appeal lacks merit and dismiss the same.
17. The costs of this Appeal are assessed at Kshs 150,000/= all conclusive.
18. It is so ordered.
Dated, signed, and delivered in open court at MARSABIT this .............25th.....................day of MARCH, 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this ………day of ……25 th ……………. MARCH ,2026.
In the presence of : -
……………………N/A…………………………………..Appellant
……………………N/A…………………………………. Respondent
……………………JARSO…………………………………. Court Assistant
IN THE HIGH COURT OF KENYA AT NAIROBI
MILLIMANI LAW COURTS
CIVIL APPEAL NO. E046 OF 2025
JACOB MBINDA MUSYIMI….…….…..……….…………...…. APPELLANT
VERSUS
RAELI HYDRO SYSTEMS LIMITED…………………………. RESPONDENT
( BEING AN APPEAL FROM THE JUDGMENT/DECREE OF HON .C.A. OKUMU (RM-ADJUDICATOR) DELIVERED ON 2 nd DAY OF MAY 2025 IN NAIROBI MILLIMANI SCC COMM NO E17151 OF 2024 )
BETWEEN
RAELI HYDRO SYSTEMS LIMITED...……………………………. PLAINTIFF
VERSUS
JACOB MBINDA MUSYIMI ………………………..………..…….DEFENDANT
J U D G M E N T
A. Introduction
1. This Appeal arises from the judgment of Hon C.A. OKUMU Resident Magistrate/Adjudicator dated 2 nd May 2025, where she held that the respondent had on a balance of probability established that he was owned the sum claimed of Kshs 823,880/= by the appellant and entered judgment for this sum in his favour plus interest thereon from the date of filing the suit until payment in full. Costs of the said suit were also assessed at Ksh 90,000/= all inclusive.
2. The background to this dispute is that the respondent did file their statement of claim, stating that they were a limited liability company that dealt exclusively in borehole drilling and equipping works. Sometime in June 2024, the appellant had contracted them to drill and equip a borehole in his parcel of land located within Konza area in Makueni County at an agreed contract sum of Kshs 823,880/= for the borehole drilling and to have it fully equipped at an agreed sum of Kshs 1,872,500/= , which contractual sum totaled to Kshs 2,696,380/=.
3. It was the respondent’s contention that they fully implemented the entire scope of the contract as agreed and the appellant paid them a sum of Kshs 1,872,500/= but reneged and/or refused to pay the outstanding balance of Kshs 823,880/= under the pretext of poor workmanship and alleged comparative high cost of the entire project in comparison to quotations received from other industry players dealing in the respondent’s line of business. The respondent therefore prayed the appellant be directed to pay the outstanding balance of Kshs 823,880/= plus interest at court rates until payment of the outstanding sum in full.
4. In response, the appellant confirmed that he did contract the respondent to sink a borehole for him and they did proceed to issue him with a quotation detailing the quantities and cost of material to be utilized in fulfilling the said works. Unfortunately, the respondent had proceeded to do shoddy work and utilized substandard materials contrary to what was agreed upon and he had to stop the works being undertaken until the respondent either replaces the substandard materials used and/or until he notified them on the forward.
5. Unfortunately, the respondent was not willing to rectify the mistakes noted and he therefore had to contract a different contractor, being Davis & shirtliff who finalized the works at an extra cost, which they incured. It was the appellants further averment that he had overpaid the respondent to the tune of Kshs 115,165.00/= and counterclaimed to be refunded the said amount as the respondent had used substandard material contrary to what was agreed upon, and quoted and billed for 34 solar panels, but only connected 20 leaving the rest installed but not connected, thereby causing unnecessary loss to the respondent.
6. The trial proceeded under Section 30 of the small claims Act , and the trial magistrate having considered the pleadings filed, witness statements, the supporting documents and parties’ submissions held that the respondent had on a balance of probability proved that indeed he was owed the sum of Kshs 823,880/= and thus proceed to enter judgment in his favour for this sum plus interest thereon at court rates from the date of filing the suit, until date of payment in full. The appellants counter claim was dismissed and costs of the said suit assessed at Kshs 90,000/=.
7. Being aggrieved by the said judgement the appellant filed their memorandum of appeal dated 15 th May 2025, where they raised Seven (7) grounds of appeal, namely that;
a) That the trial Adjudicator erred in law and fact when she entered judgment in favour of the claimant without consideration of the Appellants evidence on record.
b) That the trial adjudicator failed to analyse and review the evidence tendered by the appellant thereby arriving at an erroneous determination after relying on the claimant’s case only.
c) That the Trial court proceeded as though the case was not defended as the learned Adjudicator failed to apply her mind to the Appellants case.
d) That the Trial Adjudicator failed to consider Appellant’s counterclaim and evidence in support tendered only to arbitrarily dismiss the same.
e) That the Honourable court failed to give reasons for dismissal of the counterclaim.
f) That the Trial Magistrate did not appreciate the substance and context in which the counter claim was brought thereby dismissing the same without considering its merits.
g) That the learned Magistrate failed to take into account the Appellant’s submissions in rendering the judgment.
8. The appellant thus urged this court to find that this Appeal has merit, it be allowed and the judgment of the trial court dated 2 nd May 2025 be set aside and substituted with an order dismissing the respondents suit and also allowing the counterclaim filed as against the respondent herein. The appellant also prayed to be awarded costs of this Appeal.
B. Analysis and Determination
9. I have considered this appeal, the parties respective submissions filed, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being an appeal from the Small Claims Court, it is important to point out that Section 38 of the Small Claims Court Act provides that appeals from the said court shall be only on issues of law.
10. An appeal limited to matters of law does not permit the appellate court to substitute the tribunal's decision with its own conclusions based on its own analysis and appreciation of the facts. In John Munuve Mati Vr The returning officer, Mwingi North Constituency & 2 others (2018) eKLR , what amounts to “matters of law” was described as;
(38) The interpretation or construction of the constitution, statute, or regulations made thereunder or their application to the sets of facts established by the trial court. As far as facts are concerned, our engagement with them is limited to background and context, and to satisfy ourselves, when the issue is raised, whether the conclusions of the trial judge are based on the evidence on record or whether they are so perverse that no reasonable tribunal would have arrived at them. We cannot be drawn into consideration of the credibility of witnesses or which witnesses are more believable than others; by law, that is the province of the trial court.
11. This Appeal turns one issue, which is whether the trial magistrate correctly determined the question of burden of proof. The halsbury’s laws of England, 4 th Edition, Volume 17 at para 13 and 14 where it states that;
“The legal burden is the burden of proof which remains constant through a trial; it is the burden of establishing the facts and contentions which will support the parties case. If at the conclusion of the trial he has 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 essential to his case. There may therefore be separate burdens in a case with separate issues.
{16} The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutions evidential burden. Therefore, while both legal and evidential burden initially rests upon the appellant, the evidential burden may shift in the course of trial depending on the evidence adduced. As to 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 .”
12. In the case of Evans Nyakwana Vs Cleophas Rwana ongaro ( 2015) eKLR it was held that
“ As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purpose of section 107(i) of the Evidence Act, Chapter 80 laws of Kenya. Furthermore the evidential burden…… is cast upon any party, the burden of proving any particular fact which he desired the court to believe in its existence. That is captured in section 109 and 112 of the law that proof of that fact shall lie on any particular person….. The appellant discharged that burden and as section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
13. The appellant admitted in the statement of response filed, that he contracted the respondent to sink a borehole for him at his farm in Makueni based on the quotation issued and cost of material to be used. He did not expressly deny the cost of the said project, but justified not fully settling the contracted sum as the respondent undertook shoddy work and utilized substandard materials contrary to what was agreed upon and billed. Further since the respondent was not willing to rectify the mistakes noted he contracted a different firm, being Davis & Shirtliff who finalized the work at an extra cost of Kshs 115,165.00/= , which he sought refund for.
14. Based on the pleadings filed and admissions made in the statement of response, the respondent did establish their case on a balance of probability and the evidential burden shifted to the appellant to prove that the works undertaken were substandard and therefore were not entitled to pay any more sums under the contract to the respondent. Unfortunately, he failed to do so as the photographs presented, price difference table and/or sales quotation from Davis & Shirtliff was not an effective way of proving substandard work. He ought to have provided a technical report outlining specific defects and associated costs incurred to remedy the same.
15. It is also noted that no proof was provided to show that the appellant employed a different contractor to finish the incomplete works nor did the sales quotation from Davis & Shirtliff, prove purchase of the associated equipment needed to setup the borehole. The trial Magistrate therefore did not err in arriving at her conclusion that the respondent had proved his case and dismissing the appellants counter claim.
C . Disposition
16. Having arrived at the above finding, I do find and hold that this Appeal lacks merit and dismiss the same.
17. The costs of this Appeal are assessed at Kshs 150,000/= all conclusive.
18. It is so ordered.
Dated, signed, and delivered in open court at MARSABIT this .............25th.....................day of MARCH, 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this ………day of ……25 th ……………. MARCH ,2026.
In the presence of : -
……………………N/A…………………………………..Appellant
……………………N/A…………………………………. Respondent
……………………JARSO…………………………………. Court Assistant