REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. E077 OF 2025
JONZAVIKE PRINTERS STATIONERS & BOOKSHOP LTD…APPELLANT
VERSUS
LONGHORN PUBLISHERS…………………..………………….RESPONDENT
(Being an appeal against the whole of the Judgement of Hon.J.Nyariki (SRM) in Kisii MCCC No. E766 of 2023 delivered on 8 th May, 2025)
JUDGEMENT
1. This appeal arises from the judgement and decree of Hon. J.Nyariki (SRM) dated the 8 th May, 2025 in Kisii MCCC No. E766 of 2023 . In the referenced case trial court entered judgement for the Respondent (Plaintiff in the lower court) in the sum of Ksh. 2, 596,235.14 , interests and costs of the suit.
Background
2. By way of plaint dated 15 th September, 2023 the Respondent sued the Appellant (plaintiff in the lower court) for the recovery of a liquidated sum of Ksh. 2, 596, 235.14 being the price of books sold to the Appellant (Defendant in the lower court) interest on the sum claimed and costs of the suit.
3. The facts giving rise to that suit is that between 30 th June, 2018 and 24 th August, 2022 the Appellant bought several consignments of books from the Respondent. The price of each sale was invoiced during the delivery of each order. The dispute, however, arose from the Appellant’s failure to pay the price for the orders as agreed. It was averred that the Appellant regularized their account number CUST3135 up until 24 th August, 2022 when it made the last payment leaving arrears of Ksh. 2, 653, 535.17 . The particulars of the invoices were pleaded and the balance payable as at 30 th June, 2022 was pleaded to be Ksh. 2, 596, 235.14 .
4. The Appellant opposed the claim through a statement of defence dated 11 th October, 2023 . In the statement of defence, the Appellant admitted that there was a contractual relationship between the parties but denied that it failed to pay for the goods delivered as agreed. Further, that all payments towards the goods supplied were paid and that there was no outstanding debt as itemized owed to the Respondent for the reason that all goods supplied since the year 2018 to date of the suit were paid for.
5. The Appellant in its defence also stated that the Respondent supplied goods/books that were rendered redundant in the year 2017 due to a change of syllabus in the school curriculum and which books were still held in the stores. The Appellant maintained that on 7 th August, 2017 the Respondent wrote a demand letter for payment of the books supplied in which no further step was taken to sue and that the suit was statutory barred under the Limitation of Actions Act being a claim that originated from the year 2018.
6. The trial court delivered its judgement on 8 th May, 2025 in favour of the Respondent. Essentially finding that the suit was not time barred by virtue of the Limitation of Actions Act as the debt being claimed by the Respondent fell due in the year 2022 and the claim was instituted in the year 2023. The court also found that there was no dispute regarding the validity of a sales contract between the parties.
7. The trial court found that the Respondent had attached corresponding invoices for each order in its claim, pick instructions and delivery notes for each consignment of books delivered. That the consignments were also received by the Appellant confirming that indeed delivery was made. This was in addition to customer statements which showed that the respondent was in arrears as claimed. The trial court in its judgement also made a finding that the Appellant did not adduce any evidence showing that it had cleared its debt and that the customer account she produced proved that indeed a debt was owing.
The Appeal
8. Being aggrieved and dissatisfied with the judgement of the trial court the Appellant filed a memorandum of appeal challenging the decision broadly on the grounds that the learned trial magistrate erred in law and in fact by failing to evaluate the evidence placed before him, failing to appreciate the pleadings, failing to factor that the Appellant was wrongly sued considering that the goods the subject of the claim were supplied to Jonzavike Bookshop and not the appellant herein.
9. The appeal was canvassed by way of written submissions with the Appellant filing written submissions dated the 15 th May, 2025 and the Respondent filing written submission dated the 25 th May, 2026 .
Appellant’s Submissions
10. Counsel for the Appellant submitted that the Respondent supplied books to Jonzavike Bookshop which was a business name way back from 2017 and not a legal entity under the Companies Act. Further that the Appellant, Jonzavike Printers Stationers and Bookshop Limited was registered on 15 th March, 2021 . Counsel argues that as such the appellant had no contract with the Respondent for the supply of any books. Reliance was placed on the case of Dawn Monroe v. Mary Washington Healthcare whose full citation has not been given in the appellant’s submissions.
11. It was submitted that there was a misjoinder of parties as the Respondent has transacted with Jonzavike Printers Stationers and bookshops which was not a limited liability company but a business name operated by Josephine Moraa Omanwa on 22 nd August, 2008 .
12. Counsel also submits that ,nonetheless, the Respondent had supplied books rejected due to a change in curriculum and was requested to collect the same as per the evidence adduced before the trial court. It was submitted that despite the notification the Respondent failed and or refused to collect the books and as a result they were still under the custody of the supplied entity awaiting collection and not in the Appellant’s custody.
13. Counsel further submitted that the entity Jonzavike Bookshop maintained its business relationship with the Respondent and continued to supply books to Jonzavike Bookshop through 2018 to 2022 and that Jonzavike Bookshop had paid for all the subsequent supplies in cash and cheque and had no outstanding balances.
14. It was submitted that the Respondent bore the burden of proving by way of evidence that the Appellant owed money. Reliance was placed on the case of Evans Nyakwana v Cleophas Bwana Ongaro (2015) eKLR .
15. Counsel for the Appellant submitted that the appellant’s witness who testified before the trial court as DW1, informed the court that the claim herein dates back to 2017 contractual obligations. Further that on 17 th August, 2017 , the respondent wrote a letter to the Jonzavike Bookshop demanding alleged outstanding balance for supply of books to the tune of Ksh 12,415,370.62/= . The witness confirmed at the hearing that money was paid save for the rejected books which were still lying in the premises of Jonzavike Bookshop ’s stores awaiting collection by the respondent and not the appellant.
16. Counsel for the Appellant submitted that even assuming that the contract for the supply of the rejected books was executed 30 days before the said demand letter, it would therefore date back to 16 th July 2017 and the claim became time barred on 17 th June 2023 . The claim being founded on contract and considering that the suit was filed in September 2023 the same offended the provisions of Section 4 (a) of the Limitations of Actions Act . Further, it was submitted that there has never been any payment for the rejected books and as such there has never been any revival of the claim nor admission of any liability to enable the respondent to invoke the provisions of Section 44 of the Limitations of Actions Act .
17. It was the Appellant’s submission that the respondent mixed the accounts of supplies over several years to hide the fact that the only payment that had never been settled is in respect of the rejected books supplied in 2017 . That the hesitation of the Respondent’s witness in giving the specific costs of the 2017 supply was for the reason that the suit would be exposed to be statutorily barred.
Respondent’s Submissions
18. Counsel for the Respondent submits that at the appellate stage this court should reconsider the evidence adduced before the trial court and re-evaluate it so as to draw its own independent conclusions and to satisfy itself that the conclusions reached by the trial court were consistent with the evidence. Reliance was placed on the case of Co-operative Bank of Kenya Limited v Yator [2021] KECA 95 (KLR).
19. Regarding the submissions that the Appellant wrongly sued, Counsel for the Respondent submits that The Appellant in its pleadings admitted that it was a client of the Respondent and that there was a contractual relationship between the parties and that she made payments for books that were delivered. Further, that the Appellant’s own testimony was that it was a customer of the Respondent.
20. As such, it was submitted that the Appellant was estopped from alleging that it was not a proper party to the proceedings. In making this submission on estoppel counsel relied on the cases of 748 Air Services Limited vs Theuri Munyi (2017) eKLR which cited the case of McIlkenny vs Chief Constable of West Midlands, [1980] All ER 227 . The counsel also cited the case of D & C Builders vs Sidney Rees (1966) 2 QB 617 in support of the submission that the Appellant having admitted being a party to the contract that is the subject of the suit and the instant appeal, it was estopped from asserting that there was no privity of contract. Further, that the Appellant’s own documentation showed that indeed there was a contractual relationship with the Respondent.
21. On the issue of the burden of proof as to the outstanding debt, Counsel for the Respondent submitted that the Respondent produced evidence in the form of bulk orders, invoices, delivery notes and customer statements to establish the existence of a debt owed by the Appellant.
22. It was submitted that the Appellant pleaded that it paid for all the purchases made from the Respondent. That as such the finding by the trial Magistrate that the Respondent had indeed proved the debt of Kshs. 2, 596, 235.14 as pleaded was supported by the testimony of the respondent’s witness and documentary evidence produced at trial by the Respondent.
23. It was submitted that there was no evidence placed before the court to prove that the Appellant was not indebted to the Respondent. That having denied the existence of any debt, the Appellant as the defendant in the case before the trial court was required to discharge the burden of proof on its assertions as he who alleges must prove. Reliance was placed on the case of East Produce (K)Limited v Christopher Astiado Osiro, Civil Appeal No.43 of 2001 and Mbuthia Macharia v Annah Mutua & Another [2017] eKLR.
24. Counsel submitted that the Respondent during the trial attached corresponding invoices for each of the orders indicated in its claim, together with the pick instructions and the delivery notes for each consignment of books delivered. The consignments were also received by the Appellant signaling delivery. That the Respondent further provided customer statements which showed the Appellant was in arrears while no bank statement or payments receipts were tendered to support the Appellant’s claim that the debt was paid.
25. It was submitted that the Respondent met its obligations due under the contract by supplying the books ordered to the Appellant. The bundle of exhibits particularly the invoices demonstrated the amount in costs for the books supplied. Also, that dispatch slips and delivery notes were adduced before the trial court evidencing the fact that the Appellant had actually received the books ordered and supplied by the Respondent.
26. Lastly it was submitted that the Appellant failed to provide concrete evidence such as bank statements or signed return records to substantiate their position. Counsel relied on the case of Kipkebe Limited vs Peterson Ondieki Tai [2018] eKLR to buttress the proposition that a party alleging payment or offset must prove it.
Issues for determination
27. This court has carefully considered the pleadings, the record of the trial court, and the rival submissions and finds the following issues arising for determination:
i. Whether the suit was statutory barred under the Limitation of Actions Act;
ii. Whether there was privity of contract between the Appellant and the Respondent;
iii. and Whether the Respondent proved, on a balance of probabilities, that the Appellant was indebted to it in the sum of Kshs. 2,596,235.14 .
Analysis & Determination
1. This being a first appellate court, I’m cognizant of the duty to reassess or to re-evaluate the evidence and reach my own conclusions as was held in the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123:
“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
i) Whether the suit was statutory barred under the Limitation of Actions Act
28. The Limitation of Actions Act, Section 4(1)(a) provides that;
An action for an account may not be brought in respect of any matter which arose more than six years before the commencement of the action.
29. The Appellant's position on the claim being statutory barred is anchored on the demand letter dated 7 th August 2017 , addressed to Jonzavike Bookshop, claiming Kshs. 12,415,370.62 in respect of books rejected following a change in the school curriculum. That this present claim therefore is a distinct, historical dispute over a specific consignment and is not the transaction pleaded or proved in this suit.
30. The customer statement for account CUST3135 in the name of Jonzavike Bookshop, produced at trial and now before this court, shows that the debt claimed is not referable to any single invoice or narrow invoicing window, but is the balance on one continuous, mutually running account between the parties.
31. The statement opens with a balance brought forward of Kshs. 7,948,642.88 as at 30 th June 2018 , and records an uninterrupted sequence of debits (orders/invoices) and credits (receipts, part-payments, occasional dishonoured-cheque reversals, and corrections) running continuously through to the last recorded entries on 24th August 2022 , at which point the account closes at a total of Kshs. 2,596,714.04 .
32. The last three entries on the account, all dated 24 th August 2022 , are themselves part-payments of Kshs. 100,000 , Kshs. 60,000 , and Kshs. 16,810 respectively, after which no further payment is recorded.
33. The Limitation of Actions Act, Section 23(3) provides that;
Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, or a claim to movable property of a deceased person, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect of it, the right accrues on and not before the date of the acknowledgement or the last payment
34. A perusal of the customer statement adduced in evidence shows that the Appellant made part-payments against its account with the respondent as late as 24 th August 2022 . Time under Section 4(1)(a) of the Limitation of Actions Act therefore ran a fresh from that date, at the very least. The plaint, filed on 15 th September 2023 , was therefore comfortably within the six-year period prescribed by section 4(1)(a) of the aforesaid Act. In any event, this was a continuous relationship that was broken when the appellant abruptly stopped payments for deliveries.
35. The Appellant's computation, resting solely on the 2017 demand for a separate and factually distinct consignment of rejected books, does not address the debt actually claimed, which is the running balance on account CUST3135 , kept alive by continuous mutual dealing and successive part-payments through to August 2022. The trial court's finding that the claim was not time-barred is upheld, and is, on this fuller analysis of the account, put beyond doubt. This ground of appeal fails.
ii) Whether there was privity of contract between the Appellant and the Respondent
36. The Appellant contends that it was wrongly sued, since the books were ordered and delivered under the name "Jonzavike Bookshop," which counsel for the Appellant contends was a business name operated by Josephine Moraa Omanwa from 2008, and is a legal persona distinct from the Appellant company, Jonzavike Printers Stationers & Bookshop Ltd, incorporated on 15 th March 2021 .
37. The doctrine of privity of contract is that a contract cannot confer rights or impose obligations on any person other than the parties to it, and cannot be enforced against a stranger to it. The Court of Appeal in the case of City Council of Nairobi v Wilfred Kamau Githua t/a Githua Associates & another [2016] KECA 649 (KLR) stated as follows;
“In this regard Halsbury’s Laws of England, 4th Edition Volume 9(1) Paragraph 748 states;
The General rule. The doctrine of privity of contract is that, as a general rule, at common law a contract cannot confer rights or impose obligations on strangers to it; that is, persons who are not parties to it. The parties to a contract are those persons who reach agreement and, whilst it may be clear in a simple case who those parties are……”
38. The Appellant’s Statement of Defence dated 11 th October 2023 admitted that there was a contractual relationship between the parties. It did not plead misjoinder, non-existence of privity of contract, or that the Appellant was a distinct legal entity from "Jonzavike Bookshop." The defence instead contested the claim only on the issue of the fact of non-payment.
39. A party who admits a contractual relationship in its pleadings, contests the suit at trial on the footing of that admission, and only disowns the relationship on appeal, is properly estopped from asserting the contrary. The doctrine of estoppel by conduct precludes a person from asserting something contrary to what is implied by that person's own previous action or statement. The Court of Appeal in John Mburu v Consolidated Bank of Kenya [2018] KECA 796 (KLR) while considering the doctrine of estoppel held that;
“Should the appellant be estopped from reopening the matter? Estoppel is not easy to define in legal terminology. It is said to be a principle of justice and equity. In the case of 748 Air Services Limited vs Theuri Munyi (2017) eKLR, this Court explored the history of the doctrine with Lord Denning in the case of McIlkenny vs Chief Constable of West Midlands, [1980] All ER 227, where he stated:
"..We have so many rooms that we are apt to get confused between them. Estoppel per rem judicatum, issue estoppel, estoppel by deed, estoppel by representation, estoppel by conduct, estoppel by acquiescence, estoppel by election or waiver, estoppel by negligence, promissory estoppel, proprietary estoppel, and goodness knows what else. These several rooms have this much in common: they are all under the same roof. Someone is stopped from saying something or other, or doing something or other, or contesting something or other. But each room is used differently from the others. If you go into one room, you will find a notice saying 'estoppel is only a rule of evidence. If you go into another room, you will find a different notice: 'estoppel can give rise to a cause of action'. Each room has its own separate notice. It is a mistake to suppose that what you find in one room, you will find in the others."
40. Independently of estoppel, the evidence linking the Appellant to the transactions is direct rather than inferential. The invoices, order forms, delivery notes, and customer statement bearing the name "Jonzavike Bookshop" were produced and were received by the Appellant's own witness, Josephine Moraa (DW1).
41. The Appellant's Certificate of Incorporation (CR12) whose particulars show that Josephine Moraa is the sole director of the Appellant company, registered on 15 th March 2021, a date that precedes the posting dates of the invoices in issue which range from 17 th August 2021 to 6 th September 2021 . The consignments adding up to the debt claimed were therefore ordered, delivered, and receipted after the Appellant company had come into existence, and were received by the very same individual who is that company's sole director and who testified on its behalf at trial.
42. In these circumstances, therefore, the distinction the Appellant seeks to draw between "Jonzavike Bookshop" and "Jonzavike Printers Stationers & Bookshop Ltd" does not assist it. Whether "Jonzavike Bookshop" is properly characterized as the trading name and style under which the Appellant company conducted its business, or simply as the continuing name under which its sole director, Josephine Moraa, transacted with the Respondent on the company's behalf, the individual actually placing orders, taking delivery, and acknowledging the resulting debt was at all material times the controlling mind of the Appellant.
43. This court has interrogated the pleadings and the documents produced at trial and found that they do not contain any certificate of registration of the business name "Jonzavike Bookshop" under the Business Names Act, or any other proof that it was a sole proprietorship of Josephine Moraa Omanwa predating and legally distinct from the Appellant company. The assertion to that effect was made only in submissions, with no corresponding evidentiary foundation on the record. As such counsel was, in substance, testifying from the bar.
44. It is trite that submissions of counsel do not constitute evidence and cannot be substitute for proof of a fact in issue.
45. The claim of a separate, pre-existing proprietorship therefore remains wholly unproven, and stands against the weight of the Appellant's own pleaded admission of a contractual relationship and the direct evidence of receipt of the goods by its sole director.
46. For these reasons, the ground of appeal founded on absence of privity of contract and misjoinder of parties fails.
iii) Whether the Respondent proved, on a balance of probabilities, that the Appellant was indebted to it in the sum of Kshs. 2,596,235.14
47. The Evidence Act, Section 107 on the burden of proof provides that;
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
48. The Respondent discharged its evidentiary burden through the invoices, order/pick instructions, delivery notes, and customer statements produced at trial, all corresponding to the consignments delivered under account CUST3135, and all received and acknowledged in the name of "Jonzavike Bookshop" by the Appellant's own director. The customer statement itself reflects the outstanding debt.
49. Once that evidential threshold was met, the burden shifted to the Appellant to substantiate its plea that all sums due had been paid. The Appellant offered no bank statements, payment receipts, or other documentary proof of settlement; it relied instead on the bare assertion of payment in its statement of defence and the testimony of its witness and nothing more.
50. As to the books said to have been rejected and returned following the curriculum change, that dispute concerns the separate 2017 transaction and does not detract from the Respondent's proof of the distinct 2021 invoices underlying the sum actually claimed.
51. The trial court's finding that the Respondent proved the debt of Kshs. 2,596,235.14 on a balance of probabilities is accordingly upheld. This ground of appeal also fails
52. The upshot is that this appeal is found to be lacking in merit and is dismissed in its entirety with costs to the Respondent.
Judgment read, dated and delivered virtually from Bungoma High Court this 17 th day of September, 2026
R. K. Koech
JUDGE
In the presence of:
Mr. Nyambati appearing virtually for the Appellant
Mr. Ochieng appearing virtually for the Respondent
Mr. Enock Wakhu, C.A.
Right of appeal within 30 days.
Page 1Page 1JUDGEMENT KISII HCCA/E077/2025
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. E077 OF 2025
JONZAVIKE PRINTERS STATIONERS & BOOKSHOP LTD…APPELLANT
VERSUS
LONGHORN PUBLISHERS…………………..………………….RESPONDENT
(Being an appeal against the whole of the Judgement of Hon.J.Nyariki (SRM) in Kisii MCCC No. E766 of 2023 delivered on 8 th May, 2025)
JUDGEMENT
1. This appeal arises from the judgement and decree of Hon. J.Nyariki (SRM) dated the 8 th May, 2025 in Kisii MCCC No. E766 of 2023 . In the referenced case trial court entered judgement for the Respondent (Plaintiff in the lower court) in the sum of Ksh. 2, 596,235.14 , interests and costs of the suit.
Background
2. By way of plaint dated 15 th September, 2023 the Respondent sued the Appellant (plaintiff in the lower court) for the recovery of a liquidated sum of Ksh. 2, 596, 235.14 being the price of books sold to the Appellant (Defendant in the lower court) interest on the sum claimed and costs of the suit.
3. The facts giving rise to that suit is that between 30 th June, 2018 and 24 th August, 2022 the Appellant bought several consignments of books from the Respondent. The price of each sale was invoiced during the delivery of each order. The dispute, however, arose from the Appellant’s failure to pay the price for the orders as agreed. It was averred that the Appellant regularized their account number CUST3135 up until 24 th August, 2022 when it made the last payment leaving arrears of Ksh. 2, 653, 535.17 . The particulars of the invoices were pleaded and the balance payable as at 30 th June, 2022 was pleaded to be Ksh. 2, 596, 235.14 .
4. The Appellant opposed the claim through a statement of defence dated 11 th October, 2023 . In the statement of defence, the Appellant admitted that there was a contractual relationship between the parties but denied that it failed to pay for the goods delivered as agreed. Further, that all payments towards the goods supplied were paid and that there was no outstanding debt as itemized owed to the Respondent for the reason that all goods supplied since the year 2018 to date of the suit were paid for.
5. The Appellant in its defence also stated that the Respondent supplied goods/books that were rendered redundant in the year 2017 due to a change of syllabus in the school curriculum and which books were still held in the stores. The Appellant maintained that on 7 th August, 2017 the Respondent wrote a demand letter for payment of the books supplied in which no further step was taken to sue and that the suit was statutory barred under the Limitation of Actions Act being a claim that originated from the year 2018.
6. The trial court delivered its judgement on 8 th May, 2025 in favour of the Respondent. Essentially finding that the suit was not time barred by virtue of the Limitation of Actions Act as the debt being claimed by the Respondent fell due in the year 2022 and the claim was instituted in the year 2023. The court also found that there was no dispute regarding the validity of a sales contract between the parties.
7. The trial court found that the Respondent had attached corresponding invoices for each order in its claim, pick instructions and delivery notes for each consignment of books delivered. That the consignments were also received by the Appellant confirming that indeed delivery was made. This was in addition to customer statements which showed that the respondent was in arrears as claimed. The trial court in its judgement also made a finding that the Appellant did not adduce any evidence showing that it had cleared its debt and that the customer account she produced proved that indeed a debt was owing.
The Appeal
8. Being aggrieved and dissatisfied with the judgement of the trial court the Appellant filed a memorandum of appeal challenging the decision broadly on the grounds that the learned trial magistrate erred in law and in fact by failing to evaluate the evidence placed before him, failing to appreciate the pleadings, failing to factor that the Appellant was wrongly sued considering that the goods the subject of the claim were supplied to Jonzavike Bookshop and not the appellant herein.
9. The appeal was canvassed by way of written submissions with the Appellant filing written submissions dated the 15 th May, 2025 and the Respondent filing written submission dated the 25 th May, 2026 .
Appellant’s Submissions
10. Counsel for the Appellant submitted that the Respondent supplied books to Jonzavike Bookshop which was a business name way back from 2017 and not a legal entity under the Companies Act. Further that the Appellant, Jonzavike Printers Stationers and Bookshop Limited was registered on 15 th March, 2021 . Counsel argues that as such the appellant had no contract with the Respondent for the supply of any books. Reliance was placed on the case of Dawn Monroe v. Mary Washington Healthcare whose full citation has not been given in the appellant’s submissions.
11. It was submitted that there was a misjoinder of parties as the Respondent has transacted with Jonzavike Printers Stationers and bookshops which was not a limited liability company but a business name operated by Josephine Moraa Omanwa on 22 nd August, 2008 .
12. Counsel also submits that ,nonetheless, the Respondent had supplied books rejected due to a change in curriculum and was requested to collect the same as per the evidence adduced before the trial court. It was submitted that despite the notification the Respondent failed and or refused to collect the books and as a result they were still under the custody of the supplied entity awaiting collection and not in the Appellant’s custody.
13. Counsel further submitted that the entity Jonzavike Bookshop maintained its business relationship with the Respondent and continued to supply books to Jonzavike Bookshop through 2018 to 2022 and that Jonzavike Bookshop had paid for all the subsequent supplies in cash and cheque and had no outstanding balances.
14. It was submitted that the Respondent bore the burden of proving by way of evidence that the Appellant owed money. Reliance was placed on the case of Evans Nyakwana v Cleophas Bwana Ongaro (2015) eKLR .
15. Counsel for the Appellant submitted that the appellant’s witness who testified before the trial court as DW1, informed the court that the claim herein dates back to 2017 contractual obligations. Further that on 17 th August, 2017 , the respondent wrote a letter to the Jonzavike Bookshop demanding alleged outstanding balance for supply of books to the tune of Ksh 12,415,370.62/= . The witness confirmed at the hearing that money was paid save for the rejected books which were still lying in the premises of Jonzavike Bookshop ’s stores awaiting collection by the respondent and not the appellant.
16. Counsel for the Appellant submitted that even assuming that the contract for the supply of the rejected books was executed 30 days before the said demand letter, it would therefore date back to 16 th July 2017 and the claim became time barred on 17 th June 2023 . The claim being founded on contract and considering that the suit was filed in September 2023 the same offended the provisions of Section 4 (a) of the Limitations of Actions Act . Further, it was submitted that there has never been any payment for the rejected books and as such there has never been any revival of the claim nor admission of any liability to enable the respondent to invoke the provisions of Section 44 of the Limitations of Actions Act .
17. It was the Appellant’s submission that the respondent mixed the accounts of supplies over several years to hide the fact that the only payment that had never been settled is in respect of the rejected books supplied in 2017 . That the hesitation of the Respondent’s witness in giving the specific costs of the 2017 supply was for the reason that the suit would be exposed to be statutorily barred.
Respondent’s Submissions
18. Counsel for the Respondent submits that at the appellate stage this court should reconsider the evidence adduced before the trial court and re-evaluate it so as to draw its own independent conclusions and to satisfy itself that the conclusions reached by the trial court were consistent with the evidence. Reliance was placed on the case of Co-operative Bank of Kenya Limited v Yator [2021] KECA 95 (KLR).
19. Regarding the submissions that the Appellant wrongly sued, Counsel for the Respondent submits that The Appellant in its pleadings admitted that it was a client of the Respondent and that there was a contractual relationship between the parties and that she made payments for books that were delivered. Further, that the Appellant’s own testimony was that it was a customer of the Respondent.
20. As such, it was submitted that the Appellant was estopped from alleging that it was not a proper party to the proceedings. In making this submission on estoppel counsel relied on the cases of 748 Air Services Limited vs Theuri Munyi (2017) eKLR which cited the case of McIlkenny vs Chief Constable of West Midlands, [1980] All ER 227 . The counsel also cited the case of D & C Builders vs Sidney Rees (1966) 2 QB 617 in support of the submission that the Appellant having admitted being a party to the contract that is the subject of the suit and the instant appeal, it was estopped from asserting that there was no privity of contract. Further, that the Appellant’s own documentation showed that indeed there was a contractual relationship with the Respondent.
21. On the issue of the burden of proof as to the outstanding debt, Counsel for the Respondent submitted that the Respondent produced evidence in the form of bulk orders, invoices, delivery notes and customer statements to establish the existence of a debt owed by the Appellant.
22. It was submitted that the Appellant pleaded that it paid for all the purchases made from the Respondent. That as such the finding by the trial Magistrate that the Respondent had indeed proved the debt of Kshs. 2, 596, 235.14 as pleaded was supported by the testimony of the respondent’s witness and documentary evidence produced at trial by the Respondent.
23. It was submitted that there was no evidence placed before the court to prove that the Appellant was not indebted to the Respondent. That having denied the existence of any debt, the Appellant as the defendant in the case before the trial court was required to discharge the burden of proof on its assertions as he who alleges must prove. Reliance was placed on the case of East Produce (K)Limited v Christopher Astiado Osiro, Civil Appeal No.43 of 2001 and Mbuthia Macharia v Annah Mutua & Another [2017] eKLR.
24. Counsel submitted that the Respondent during the trial attached corresponding invoices for each of the orders indicated in its claim, together with the pick instructions and the delivery notes for each consignment of books delivered. The consignments were also received by the Appellant signaling delivery. That the Respondent further provided customer statements which showed the Appellant was in arrears while no bank statement or payments receipts were tendered to support the Appellant’s claim that the debt was paid.
25. It was submitted that the Respondent met its obligations due under the contract by supplying the books ordered to the Appellant. The bundle of exhibits particularly the invoices demonstrated the amount in costs for the books supplied. Also, that dispatch slips and delivery notes were adduced before the trial court evidencing the fact that the Appellant had actually received the books ordered and supplied by the Respondent.
26. Lastly it was submitted that the Appellant failed to provide concrete evidence such as bank statements or signed return records to substantiate their position. Counsel relied on the case of Kipkebe Limited vs Peterson Ondieki Tai [2018] eKLR to buttress the proposition that a party alleging payment or offset must prove it.
Issues for determination
27. This court has carefully considered the pleadings, the record of the trial court, and the rival submissions and finds the following issues arising for determination:
i. Whether the suit was statutory barred under the Limitation of Actions Act;
ii. Whether there was privity of contract between the Appellant and the Respondent;
iii. and Whether the Respondent proved, on a balance of probabilities, that the Appellant was indebted to it in the sum of Kshs. 2,596,235.14 .
Analysis & Determination
1. This being a first appellate court, I’m cognizant of the duty to reassess or to re-evaluate the evidence and reach my own conclusions as was held in the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123:
“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
i) Whether the suit was statutory barred under the Limitation of Actions Act
28. The Limitation of Actions Act, Section 4(1)(a) provides that;
An action for an account may not be brought in respect of any matter which arose more than six years before the commencement of the action.
29. The Appellant's position on the claim being statutory barred is anchored on the demand letter dated 7 th August 2017 , addressed to Jonzavike Bookshop, claiming Kshs. 12,415,370.62 in respect of books rejected following a change in the school curriculum. That this present claim therefore is a distinct, historical dispute over a specific consignment and is not the transaction pleaded or proved in this suit.
30. The customer statement for account CUST3135 in the name of Jonzavike Bookshop, produced at trial and now before this court, shows that the debt claimed is not referable to any single invoice or narrow invoicing window, but is the balance on one continuous, mutually running account between the parties.
31. The statement opens with a balance brought forward of Kshs. 7,948,642.88 as at 30 th June 2018 , and records an uninterrupted sequence of debits (orders/invoices) and credits (receipts, part-payments, occasional dishonoured-cheque reversals, and corrections) running continuously through to the last recorded entries on 24th August 2022 , at which point the account closes at a total of Kshs. 2,596,714.04 .
32. The last three entries on the account, all dated 24 th August 2022 , are themselves part-payments of Kshs. 100,000 , Kshs. 60,000 , and Kshs. 16,810 respectively, after which no further payment is recorded.
33. The Limitation of Actions Act, Section 23(3) provides that;
Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, or a claim to movable property of a deceased person, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect of it, the right accrues on and not before the date of the acknowledgement or the last payment
34. A perusal of the customer statement adduced in evidence shows that the Appellant made part-payments against its account with the respondent as late as 24 th August 2022 . Time under Section 4(1)(a) of the Limitation of Actions Act therefore ran a fresh from that date, at the very least. The plaint, filed on 15 th September 2023 , was therefore comfortably within the six-year period prescribed by section 4(1)(a) of the aforesaid Act. In any event, this was a continuous relationship that was broken when the appellant abruptly stopped payments for deliveries.
35. The Appellant's computation, resting solely on the 2017 demand for a separate and factually distinct consignment of rejected books, does not address the debt actually claimed, which is the running balance on account CUST3135 , kept alive by continuous mutual dealing and successive part-payments through to August 2022. The trial court's finding that the claim was not time-barred is upheld, and is, on this fuller analysis of the account, put beyond doubt. This ground of appeal fails.
ii) Whether there was privity of contract between the Appellant and the Respondent
36. The Appellant contends that it was wrongly sued, since the books were ordered and delivered under the name "Jonzavike Bookshop," which counsel for the Appellant contends was a business name operated by Josephine Moraa Omanwa from 2008, and is a legal persona distinct from the Appellant company, Jonzavike Printers Stationers & Bookshop Ltd, incorporated on 15 th March 2021 .
37. The doctrine of privity of contract is that a contract cannot confer rights or impose obligations on any person other than the parties to it, and cannot be enforced against a stranger to it. The Court of Appeal in the case of City Council of Nairobi v Wilfred Kamau Githua t/a Githua Associates & another [2016] KECA 649 (KLR) stated as follows;
“In this regard Halsbury’s Laws of England, 4th Edition Volume 9(1) Paragraph 748 states;
The General rule. The doctrine of privity of contract is that, as a general rule, at common law a contract cannot confer rights or impose obligations on strangers to it; that is, persons who are not parties to it. The parties to a contract are those persons who reach agreement and, whilst it may be clear in a simple case who those parties are……”
38. The Appellant’s Statement of Defence dated 11 th October 2023 admitted that there was a contractual relationship between the parties. It did not plead misjoinder, non-existence of privity of contract, or that the Appellant was a distinct legal entity from "Jonzavike Bookshop." The defence instead contested the claim only on the issue of the fact of non-payment.
39. A party who admits a contractual relationship in its pleadings, contests the suit at trial on the footing of that admission, and only disowns the relationship on appeal, is properly estopped from asserting the contrary. The doctrine of estoppel by conduct precludes a person from asserting something contrary to what is implied by that person's own previous action or statement. The Court of Appeal in John Mburu v Consolidated Bank of Kenya [2018] KECA 796 (KLR) while considering the doctrine of estoppel held that;
“Should the appellant be estopped from reopening the matter? Estoppel is not easy to define in legal terminology. It is said to be a principle of justice and equity. In the case of 748 Air Services Limited vs Theuri Munyi (2017) eKLR, this Court explored the history of the doctrine with Lord Denning in the case of McIlkenny vs Chief Constable of West Midlands, [1980] All ER 227, where he stated:
"..We have so many rooms that we are apt to get confused between them. Estoppel per rem judicatum, issue estoppel, estoppel by deed, estoppel by representation, estoppel by conduct, estoppel by acquiescence, estoppel by election or waiver, estoppel by negligence, promissory estoppel, proprietary estoppel, and goodness knows what else. These several rooms have this much in common: they are all under the same roof. Someone is stopped from saying something or other, or doing something or other, or contesting something or other. But each room is used differently from the others. If you go into one room, you will find a notice saying 'estoppel is only a rule of evidence. If you go into another room, you will find a different notice: 'estoppel can give rise to a cause of action'. Each room has its own separate notice. It is a mistake to suppose that what you find in one room, you will find in the others."
40. Independently of estoppel, the evidence linking the Appellant to the transactions is direct rather than inferential. The invoices, order forms, delivery notes, and customer statement bearing the name "Jonzavike Bookshop" were produced and were received by the Appellant's own witness, Josephine Moraa (DW1).
41. The Appellant's Certificate of Incorporation (CR12) whose particulars show that Josephine Moraa is the sole director of the Appellant company, registered on 15 th March 2021, a date that precedes the posting dates of the invoices in issue which range from 17 th August 2021 to 6 th September 2021 . The consignments adding up to the debt claimed were therefore ordered, delivered, and receipted after the Appellant company had come into existence, and were received by the very same individual who is that company's sole director and who testified on its behalf at trial.
42. In these circumstances, therefore, the distinction the Appellant seeks to draw between "Jonzavike Bookshop" and "Jonzavike Printers Stationers & Bookshop Ltd" does not assist it. Whether "Jonzavike Bookshop" is properly characterized as the trading name and style under which the Appellant company conducted its business, or simply as the continuing name under which its sole director, Josephine Moraa, transacted with the Respondent on the company's behalf, the individual actually placing orders, taking delivery, and acknowledging the resulting debt was at all material times the controlling mind of the Appellant.
43. This court has interrogated the pleadings and the documents produced at trial and found that they do not contain any certificate of registration of the business name "Jonzavike Bookshop" under the Business Names Act, or any other proof that it was a sole proprietorship of Josephine Moraa Omanwa predating and legally distinct from the Appellant company. The assertion to that effect was made only in submissions, with no corresponding evidentiary foundation on the record. As such counsel was, in substance, testifying from the bar.
44. It is trite that submissions of counsel do not constitute evidence and cannot be substitute for proof of a fact in issue.
45. The claim of a separate, pre-existing proprietorship therefore remains wholly unproven, and stands against the weight of the Appellant's own pleaded admission of a contractual relationship and the direct evidence of receipt of the goods by its sole director.
46. For these reasons, the ground of appeal founded on absence of privity of contract and misjoinder of parties fails.
iii) Whether the Respondent proved, on a balance of probabilities, that the Appellant was indebted to it in the sum of Kshs. 2,596,235.14
47. The Evidence Act, Section 107 on the burden of proof provides that;
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
48. The Respondent discharged its evidentiary burden through the invoices, order/pick instructions, delivery notes, and customer statements produced at trial, all corresponding to the consignments delivered under account CUST3135, and all received and acknowledged in the name of "Jonzavike Bookshop" by the Appellant's own director. The customer statement itself reflects the outstanding debt.
49. Once that evidential threshold was met, the burden shifted to the Appellant to substantiate its plea that all sums due had been paid. The Appellant offered no bank statements, payment receipts, or other documentary proof of settlement; it relied instead on the bare assertion of payment in its statement of defence and the testimony of its witness and nothing more.
50. As to the books said to have been rejected and returned following the curriculum change, that dispute concerns the separate 2017 transaction and does not detract from the Respondent's proof of the distinct 2021 invoices underlying the sum actually claimed.
51. The trial court's finding that the Respondent proved the debt of Kshs. 2,596,235.14 on a balance of probabilities is accordingly upheld. This ground of appeal also fails
52. The upshot is that this appeal is found to be lacking in merit and is dismissed in its entirety with costs to the Respondent.
Judgment read, dated and delivered virtually from Bungoma High Court this 17 th day of September, 2026
R. K. Koech
JUDGE
In the presence of:
Mr. Nyambati appearing virtually for the Appellant
Mr. Ochieng appearing virtually for the Respondent
Mr. Enock Wakhu, C.A.
Right of appeal within 30 days.
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