(Being an appeal from the judgment and decree of Hon. S.M.S SOITA Chief Magistrate delivered on 9/8/2018 in Kerugoya Magistrates Court Civil Case No. 150 of 2012)
1. This appeal arises from a suit by the respondent Daniel Wachira against one Jamleck Ngari as the 1st defendant and the appellant King Millers Ltd as the 2nd defendant in the trial court in a plaint amended on 12/9/2017.
2. The case was for a balance of KShs 966,000/= for maize supplied to the 2nd defendant and upon which Jamleck Ngari, a director of the appellant herein (2nd defendant in the suit) made a personal undertaking to pay in writing on 18/12/2010.
3. The respondent’s claim in the suit was for the defendants to pay KShs 966,000/= being the balance of a sum of KShs 4,662,500/= for the supply of maize by the respondent to the appellant (it is not specified which defendant) in the months of November and December 2009. That the defendants had failed to pay this sum in spite of the 1st defendant Jamleck Ngari, a director of the appellant, personally committing himself and making an undertaking in writing on 18/12/2010 to pay the balance. He also prayed for costs and interest.
4. The appellant on its part, together with the 1st defendant in the suit filed a common defence dated 29/5/2012 and denied owing the money claimed. It averred that if any supplies were made they must have been received by his co-director Samuel Kinyua who had since left the company. They averred further that they would seek to join him to the suit. They did not.
5. The respondent and the appellant through Jamlceck testified in the case each giving his side of the story and each was cross-examined largely upon the lines of their pleadings.
6. The respondent gave evidence that he is a cereals businessman. He entered into an agreement negotiated by Jamleck Ngari, a director of the appellant for supply of maize to the appellant. They agreed that upon delivery of the second consignment, he would be paid for the first one and so on. He supplied various consignments as evidenced by documents of acknowledgment of delivery he produced in evidence. They were all signed by the Jamleck Ngari. The appellant failed to fulfill its part of the bargain by leaving a balance of KShs 966,000/= unpaid. On 18/12/2010 Jamleck Ngari made a commitment to pay the balance. Although PW 1 said that PW 1 was the one who made the commitment, the evidence he produced in the form of an acknowledgment of indebtedness shows that it was signed by three people namely Jamleck Ngari, Samuel Kinyua and himself. In spite of that commitment by the directors, they never honored the promise to clear the balance. The respondent filed suit.
7. In cross-examination, the respondent said that he supplied the maize to an individual but the acknowledgement of delivery was on a company document. He said further that he was dealing with an individual. He also said that summons to enter appearance were not served upon the company because the respondent thought that the Jamleck Ngari was the sole owner.
8.
9. In his evidence in defence DW 1, Jamleck Gachoki Ngari testified that he is a director of the appellant. He produced in evidence the Articles of Association and the certificate of incorporation of the appellant. He said that he did not know the claim against him and in what capacity. He said the 2nd defendant can sue and be sued in its own capacity and he cannot be held liable. He called the claim fake and asked that it be dismissed.
10. DW 1 further said that the respondent’s claim did not disclose the number of bags supplied nor did it give the dates that he was paid thereby leaving the balance that the respondent was claiming. He also said that the document relied on by the respondent did not belong to the company as it had no seal. He restated that the company ha not been served with the summons.
11. DW 1 said that Samuel Kinyua was a director of the company and resigned left in 2002. He said that the appellant was milling and selling floor. He said that the respondent was not known to him.
12. Upon considering the pleadings, the evidence and submissions of parties, the learned trial magistrate found that acknowledgement of deliveries and the undertaking were made on the letter head of the appellant. He found further that the background to the letter of undertaking was not clear as the respondent did not provide evidence of what he was paid and how they arrived at the balance that was on the agenda on 18/12/2010 culminating in the undertaking produced in court as exhibit which was the only document that purported to acknowledge the debt of KShs 966,000/=. He found that since the respondent had said in evidence that he was dealing with an individual, whom be believed to be the sole owner of the company, he did not understand the role of Samuel Kinyua who was a director then.
13. Having made those findings, the learned trial magistrate went ahead the undertaking was the cornerstone of the respondent’s case. He then said that the document had not been challenged and the 1st defendant Jamleck Ngari had sought to rely on it in an effort to distinguish himself from the 2nd defendant (appellant herein). He found that the appellant and Ngari had failed to enjoin Samuel Kinyua who was a co-director of the appellant as a co-defendant in the suit as had been indicated in their joint statement of defence because the company had dealings with the respondent and both directors were privy to that.
14. The learned trial magistrate then found that on a balance of probability the respondent supplied maize to the appellant and was paid for the various consignments leaving the balance indicated in the document of undertaking. He found that the respondent was dealing with the appellant as a company and it was the proper defendant to the suit. He found further that the appellant and his co-director were acting as agents of the appellant when they executed the undertaking and Jamleck Ngari ought not to have been sued in his personal capacity. He therefore dismissed the suit against Jamleck Ngari. He therefore found the appellant liable to pay the respondent the sum claimed.
15. The appellant was aggrieved by the judgment and now appeals against that decision in his memorandum dated 25/10/2019. The grounds of appeal are that:
a. the learned trial magistrate erred in law and in fact in believing and holding that there was a contract of sale of maize between the respondent and King Millers Ltd while no documents relating to the contract were produced in court and yet the respondent’s pleadings indicated that he was trading with an individual.
b. the learned trial magistrate erred in law and in fact in ordering specific performance when there was no part payment proved against King Millers nor acknowledgment of receipt of the maize by King Millers Ltd.
c. the learned trial magistrate erred in law and in fact in relying upon a document that was not proved as originating from King Millers ltd as it had no company seal or stamp.
d. the learned trial magistrate made contradicting findings in his judgment and therefore arrived at an erroneous decision in the circumstances.
16. The appellant therefore prayed that the appeal be allowed, judgment entered for the respondent against the appellant be set aside with costs to the appellant.
17. The appeal was disposed of by way of written submissions which were filed by learned counsels for both parties.
18. Learned counsel for the appellant set out the issues for determination based on the grounds of appeal above.
19. Learned counsel for the appellant submitted that the appellant and Jamleck Ngari are separate legal entities and the respondent’s pleadings remained ambiguous as to which party he was referring to.
20. The submissions by learned counsel for both parties are made along these four issues.
21. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A 123 where it was held as follows:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this 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, this 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 (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
22. I have considered the grounds of appeal, the submissions by learned counsels for the parties and reviewed and reexamined the case before the trial court.
23. I agree with learned counsel for the appellant that due to the manner the amended plaint was drafted, it is not easy to make out the case whether it is purely against Jamleck Ngari as an individual, against the appellant as a corporate entity or against both. In some paragraphs, the amended plaint refers to the plaintiff in singular and in others in plural. The final prayer mixes the singular and plural. The pleadings in the plaint are as follows:
a. the 1st defendant was described as an adult male and a director of the 2nd defendant.
b. the 2nd defendant was described as a limited liability company.
c. the plaintiff supplied the defendant (singular) with maize worth about KShs 4,662,500/=. There is no doubt that this refers to the company, the appellant.
d. the defendant cleared most of the debt and a balance of KShs 966,000/= remained unpaid. (again this refers to the appellant).
e. on 18/12/2010 the 1st defendant personally committed himself and made an undertaking in writing to pay the balance.
f. the defendants had failed to pay the money. (this is plural, meaning it refers to both defendants).
g. (paragraph 8) the plaintiff’s claim against the defendant (singular) is for the sum of KShs 966,000/= plus interest and costs being the specific amount committed in his letter dated 18th December 2010 (this is singular and refers to the 1st Defendant Jamlick Ngari).
h. the plaintiff’s prayer against the defendants (plural) was for specific performance of “his” personal undertaking as set out in the letter dated 18th December 2010. This is singular and referring to the 1st defendant.
24. I have set out the pleadings as they appear in the amended plaint in order to appreciate the challenge they posed in determining the issue.
25. The claim by the respondent before the trial court was expressed to be for enforcement of a personal undertaking against Jamleck Ngari who at the time of the undertaking was a director of the appellant. The undertaking was not disputed either by Jamleck as the 1st defendant or the appellant as the 2nd defendant before the trial court.
26. That however can be expected because enforcing a personal undertaking where a company is involved is not a straightforward matter. This is because the undertaking is given by an individual and not the company itself. It has to be determined whether the enforcement is being sought against the individual as such who made it, in which case it is a personal guarantee to pay on behalf of the company or against the individual as an officer and therefore agent of the company which then is bound to honour the undertaking. Therefore, in this case it has to be determined whether the undertaking was given by Jamleck Ngari, the 1st defendant in the trial court, acting as an officer of the 2nd defendant (the appellant herein) or he gave it while on his own frolics. As it were the pleadings in the plaint are mixed up but all the same, the court has to determine the case before it.
27. That the learned trial magistrate encountered that challenge is evidence from his findings and conclusion which seem at variance. That lends credence to the ground by the appellant and the submission by its learned counsel that the learned trial magistrate made contradictory findings. This court has to determine whether he arrived at the correct conclusion and determination of the case.
28. The appellant’s contention herein is that there was no evidence to prove the existence of the contract for the supply of maize by the respondent to the appellant. That is not correct for two reasons. In his plaint, the respondent pleaded in paragraph 4 that,
“on diverse dates in the months of November and December 2009 the Plaintiff supplied the Defendant with maize which was worth about KShs 4,662,500/= in total.”
29. In response, the defendants in their joint statement of defence pleaded that:
“… paragraph 4 is denied in toto and the Plaintiff is put to strict proof thereof save to add that if any supply were made it must have been received by my co-director a Mr. Samuel Kinyua who has since left the company & the Defendant shall at appropriate time move to enjoin him in this suit.”
30. That was not an unequivocal denial of the contract. It was a pleading in the alternative. First that there was no contract and the respondent needed to prove the same. The in the alternative that there, in fact there was a contract for the supply of maize and if upon that contract the maize was supplied then it was received by the appellant’s other director other than Jamleck Ngari.
31. Proof of a claim in a civil case is on a balance of probability as extensively set out in the case of Manyinsa v Lavington Security Limited [2023] KECA 1376 (KLR). In Rentco East Africa Limited v Dominic Mutua Ngonzi [2021] KEHC 1079 (KLR) in which Odunga, J. (as he then was) extensively discussed sections 107, 108, 109 and 112 of the Evidence Act (Cap. 80) Laws of Kenya on the legal burden of proof and the evidential burden of proof. In that case, the case of Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015] KEHC 8440 (KLR) was cited in which these provisions of the law were explained thus:
“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 purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides:
107(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.
Furthermore, the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act as follows:
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
32. This court is well aware that it should not lightly defer with the findings of the trial court where the same are based on an assessment of the facts before it. I am guided by the case of Makube v Nyamiro [1983] KLR 403, where the court stated that;
“… a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.”
33. In this case, the respondent produced documents to back up his claim. The documents were not seriously challenged or proved to be fake as alleged by Jamleck in his evidence.
34. When it came to proof of his case, the respondent produced 13 documents being acknowledgments of receipt of various quantities of maize from Mr. Daniel Wachira Gachoki. Each of them is on the company letter head of Kings Millers Ltd, the appellant and is signed by a signature which is identical to Jamleck Ngari’s signature as appearing in the documents which he filed in the trial court when he elected to act in person, for instance, notice of withdrawal of advocate dated 10/8/2016 and defendants’ list of documents dated 10/8/2016.
35. The several acknowledgements of receipt of the maize consignments indicate that “the company” confirms receipt of the maize. In each, the price of a 90kg bag was indicated as 2,500/=. The total number of bags acknowledged as received in the 13 documents is 1660 making the total amount payable KShs 4,150,000/=. This falls short of the sum of KShs 4,662,500/= claimed by the respondent in his plaint. The issue of this discrepancy aside, the contents of those documents evidence a contract or contracts for supply and delivery of maize by the respondent to the appellant.
36. As submitted by learned counsel for the respondent, under section 5 of the Sale of Goods Act (Cap. 31) Laws of Kenya, the contract for sale may be made in writing either with or without seal. The fact that the acknowledgments and the undertaking were without the seal of the company did not mean that the documents cannot be relied upon to prove the contract. That ground of appeal must therefore fail. Moreover, I have looked at all the documents of acknowledgement and just like the document of undertaking they all bear the rubber stamp of the appellant, King Millers Ltd.
37. Going back to the discrepancy in the amount claimed, there is a difference of KShs 512,500/= which when divided by 2,500/= would make a difference of 205 bags of maize. On the face of it, without more, this would mean the respondent did not prove that he had supplied these extra bags of maize and so was not entitled to receive payment for them.
38. But, the acknowledgments of delivery were not the only evidence of the transactions between the appellant and the respondent. There is the acknowledgment by way of undertaking signed by the two directors of the appellant that the company owed the respondent KShs 966,000/=.
39. In his plaint, the respondent pleaded in paragraph 6 that:
“…on 18th December 2010 the 1st Defendant (Jamleck Ngari) personally committed himself to pay the balance of KShs 966,000/= and he duly made an undertaking in writing.”
40. The defendants (appellant and Jamleck Ngari) in response through their joint statement of defence pleaded that:
“Paragraph 6 is denied in toto & Plaintiff put in strict proof thereof.”
41. This was a general denial made by the defendants to a specific claim made by the respondent.
42. That undertaking was not denied by the Jamleck. In fact, he included it in his documents in support of the defence. That undertaking was sufficient evidence to prove that part payment of the amount for the supply of the maize above was made. It was also sufficient proof that the total amount of the maize supplied was KShs 4,662,500/=. The respondent did not need to adduce any more evidence even as the acknowledgement documents fell short of establishing that the total sum was KShs 4,662,500/= translating to 1,865 bags of maize supplied and not KShs 4,150,000/= for 1660 bags proved by the acknowledgement documents.
43. The defendants had stated that if the maize was supplied, then it was received by one of the directors Samuel. The respondent produced evidence to show that the maize was not only received by the 1st defendant but expressly acknowledged to be on behalf of the company, the appellant. There was offer, acceptance and part payment for the contract as well as an intention by the parties to enter into the contract. The respondent performed its part of the bargain. The appellant did not complete the performance of its part of the contract. Part performance by way of part payment for the goods supplied is evidence that there was a contract.
44. Consequently, I find that the respondent supplied maize to the appellant, the same was acknowledged in writing on each occasion by one of its directors, Jamleck Ngari and the two directors Jamleck Ngari and Samuel Kinyua acknowledged the company’s indebtedness to the respondent through the joint undertaking to pay dated 18/12/2010. It is apparent from the contents of the documents that while making the acknowledgment of receipt of the maize and the undertaking the same was for the appellant and not for Jamleck in his individual capacity.
45. I find that the respondent was able to satisfy the trial court and the learned magistrate was correct in his finding that the suit against the 1st defendant was misplaced and but the appellant was liable to pay the sum of KShs 966,000/= to the respondent as the balance of the money due for the supply of maize to the appellant.
46. Consequently, I find that the appeal has no merit and the same is dismissed with costs to the respondent.
47. Orders accordingly.
Dated, Signed and Delivered on the virtual platform Teams this 3rd day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Nyaga holding brief for Maina Kagio for the Appellant.
Muthoni (Ms.) for the Respondent.
Brian: Court Assistant.
1. This appeal arises from a suit by the respondent Daniel Wachira against one Jamleck Ngari as the 1st defendant and the appellant King Millers Ltd as the 2nd defendant in the trial court in a plaint amended on 12/9/2017.
2. The case was for a balance of KShs 966,000/= for maize supplied to the 2nd defendant and upon which Jamleck Ngari, a director of the appellant herein (2nd defendant in the suit) made a personal undertaking to pay in writing on 18/12/2010.
3. The respondent’s claim in the suit was for the defendants to pay KShs 966,000/= being the balance of a sum of KShs 4,662,500/= for the supply of maize by the respondent to the appellant (it is not specified which defendant) in the months of November and December 2009. That the defendants had failed to pay this sum in spite of the 1st defendant Jamleck Ngari, a director of the appellant, personally committing himself and making an undertaking in writing on 18/12/2010 to pay the balance. He also prayed for costs and interest.
4. The appellant on its part, together with the 1st defendant in the suit filed a common defence dated 29/5/2012 and denied owing the money claimed. It averred that if any supplies were made they must have been received by his co-director Samuel Kinyua who had since left the company. They averred further that they would seek to join him to the suit. They did not.
5. The respondent and the appellant through Jamlceck testified in the case each giving his side of the story and each was cross-examined largely upon the lines of their pleadings.
6. The respondent gave evidence that he is a cereals businessman. He entered into an agreement negotiated by Jamleck Ngari, a director of the appellant for supply of maize to the appellant. They agreed that upon delivery of the second consignment, he would be paid for the first one and so on. He supplied various consignments as evidenced by documents of acknowledgment of delivery he produced in evidence. They were all signed by the Jamleck Ngari. The appellant failed to fulfill its part of the bargain by leaving a balance of KShs 966,000/= unpaid. On 18/12/2010 Jamleck Ngari made a commitment to pay the balance. Although PW 1 said that PW 1 was the one who made the commitment, the evidence he produced in the form of an acknowledgment of indebtedness shows that it was signed by three people namely Jamleck Ngari, Samuel Kinyua and himself. In spite of that commitment by the directors, they never honored the promise to clear the balance. The respondent filed suit.
7. In cross-examination, the respondent said that he supplied the maize to an individual but the acknowledgement of delivery was on a company document. He said further that he was dealing with an individual. He also said that summons to enter appearance were not served upon the company because the respondent thought that the Jamleck Ngari was the sole owner.
8.
9. In his evidence in defence DW 1, Jamleck Gachoki Ngari testified that he is a director of the appellant. He produced in evidence the Articles of Association and the certificate of incorporation of the appellant. He said that he did not know the claim against him and in what capacity. He said the 2nd defendant can sue and be sued in its own capacity and he cannot be held liable. He called the claim fake and asked that it be dismissed.
10. DW 1 further said that the respondent’s claim did not disclose the number of bags supplied nor did it give the dates that he was paid thereby leaving the balance that the respondent was claiming. He also said that the document relied on by the respondent did not belong to the company as it had no seal. He restated that the company ha not been served with the summons.
11. DW 1 said that Samuel Kinyua was a director of the company and resigned left in 2002. He said that the appellant was milling and selling floor. He said that the respondent was not known to him.
12. Upon considering the pleadings, the evidence and submissions of parties, the learned trial magistrate found that acknowledgement of deliveries and the undertaking were made on the letter head of the appellant. He found further that the background to the letter of undertaking was not clear as the respondent did not provide evidence of what he was paid and how they arrived at the balance that was on the agenda on 18/12/2010 culminating in the undertaking produced in court as exhibit which was the only document that purported to acknowledge the debt of KShs 966,000/=. He found that since the respondent had said in evidence that he was dealing with an individual, whom be believed to be the sole owner of the company, he did not understand the role of Samuel Kinyua who was a director then.
13. Having made those findings, the learned trial magistrate went ahead the undertaking was the cornerstone of the respondent’s case. He then said that the document had not been challenged and the 1st defendant Jamleck Ngari had sought to rely on it in an effort to distinguish himself from the 2nd defendant (appellant herein). He found that the appellant and Ngari had failed to enjoin Samuel Kinyua who was a co-director of the appellant as a co-defendant in the suit as had been indicated in their joint statement of defence because the company had dealings with the respondent and both directors were privy to that.
14. The learned trial magistrate then found that on a balance of probability the respondent supplied maize to the appellant and was paid for the various consignments leaving the balance indicated in the document of undertaking. He found that the respondent was dealing with the appellant as a company and it was the proper defendant to the suit. He found further that the appellant and his co-director were acting as agents of the appellant when they executed the undertaking and Jamleck Ngari ought not to have been sued in his personal capacity. He therefore dismissed the suit against Jamleck Ngari. He therefore found the appellant liable to pay the respondent the sum claimed.
15. The appellant was aggrieved by the judgment and now appeals against that decision in his memorandum dated 25/10/2019. The grounds of appeal are that:
a. the learned trial magistrate erred in law and in fact in believing and holding that there was a contract of sale of maize between the respondent and King Millers Ltd while no documents relating to the contract were produced in court and yet the respondent’s pleadings indicated that he was trading with an individual.
b. the learned trial magistrate erred in law and in fact in ordering specific performance when there was no part payment proved against King Millers nor acknowledgment of receipt of the maize by King Millers Ltd.
c. the learned trial magistrate erred in law and in fact in relying upon a document that was not proved as originating from King Millers ltd as it had no company seal or stamp.
d. the learned trial magistrate made contradicting findings in his judgment and therefore arrived at an erroneous decision in the circumstances.
16. The appellant therefore prayed that the appeal be allowed, judgment entered for the respondent against the appellant be set aside with costs to the appellant.
17. The appeal was disposed of by way of written submissions which were filed by learned counsels for both parties.
18. Learned counsel for the appellant set out the issues for determination based on the grounds of appeal above.
19. Learned counsel for the appellant submitted that the appellant and Jamleck Ngari are separate legal entities and the respondent’s pleadings remained ambiguous as to which party he was referring to.
20. The submissions by learned counsel for both parties are made along these four issues.
21. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A 123 where it was held as follows:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this 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, this 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 (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
22. I have considered the grounds of appeal, the submissions by learned counsels for the parties and reviewed and reexamined the case before the trial court.
23. I agree with learned counsel for the appellant that due to the manner the amended plaint was drafted, it is not easy to make out the case whether it is purely against Jamleck Ngari as an individual, against the appellant as a corporate entity or against both. In some paragraphs, the amended plaint refers to the plaintiff in singular and in others in plural. The final prayer mixes the singular and plural. The pleadings in the plaint are as follows:
a. the 1st defendant was described as an adult male and a director of the 2nd defendant.
b. the 2nd defendant was described as a limited liability company.
c. the plaintiff supplied the defendant (singular) with maize worth about KShs 4,662,500/=. There is no doubt that this refers to the company, the appellant.
d. the defendant cleared most of the debt and a balance of KShs 966,000/= remained unpaid. (again this refers to the appellant).
e. on 18/12/2010 the 1st defendant personally committed himself and made an undertaking in writing to pay the balance.
f. the defendants had failed to pay the money. (this is plural, meaning it refers to both defendants).
g. (paragraph 8) the plaintiff’s claim against the defendant (singular) is for the sum of KShs 966,000/= plus interest and costs being the specific amount committed in his letter dated 18th December 2010 (this is singular and refers to the 1st Defendant Jamlick Ngari).
h. the plaintiff’s prayer against the defendants (plural) was for specific performance of “his” personal undertaking as set out in the letter dated 18th December 2010. This is singular and referring to the 1st defendant.
24. I have set out the pleadings as they appear in the amended plaint in order to appreciate the challenge they posed in determining the issue.
25. The claim by the respondent before the trial court was expressed to be for enforcement of a personal undertaking against Jamleck Ngari who at the time of the undertaking was a director of the appellant. The undertaking was not disputed either by Jamleck as the 1st defendant or the appellant as the 2nd defendant before the trial court.
26. That however can be expected because enforcing a personal undertaking where a company is involved is not a straightforward matter. This is because the undertaking is given by an individual and not the company itself. It has to be determined whether the enforcement is being sought against the individual as such who made it, in which case it is a personal guarantee to pay on behalf of the company or against the individual as an officer and therefore agent of the company which then is bound to honour the undertaking. Therefore, in this case it has to be determined whether the undertaking was given by Jamleck Ngari, the 1st defendant in the trial court, acting as an officer of the 2nd defendant (the appellant herein) or he gave it while on his own frolics. As it were the pleadings in the plaint are mixed up but all the same, the court has to determine the case before it.
27. That the learned trial magistrate encountered that challenge is evidence from his findings and conclusion which seem at variance. That lends credence to the ground by the appellant and the submission by its learned counsel that the learned trial magistrate made contradictory findings. This court has to determine whether he arrived at the correct conclusion and determination of the case.
28. The appellant’s contention herein is that there was no evidence to prove the existence of the contract for the supply of maize by the respondent to the appellant. That is not correct for two reasons. In his plaint, the respondent pleaded in paragraph 4 that,
“on diverse dates in the months of November and December 2009 the Plaintiff supplied the Defendant with maize which was worth about KShs 4,662,500/= in total.”
29. In response, the defendants in their joint statement of defence pleaded that:
“… paragraph 4 is denied in toto and the Plaintiff is put to strict proof thereof save to add that if any supply were made it must have been received by my co-director a Mr. Samuel Kinyua who has since left the company & the Defendant shall at appropriate time move to enjoin him in this suit.”
30. That was not an unequivocal denial of the contract. It was a pleading in the alternative. First that there was no contract and the respondent needed to prove the same. The in the alternative that there, in fact there was a contract for the supply of maize and if upon that contract the maize was supplied then it was received by the appellant’s other director other than Jamleck Ngari.
31. Proof of a claim in a civil case is on a balance of probability as extensively set out in the case of Manyinsa v Lavington Security Limited [2023] KECA 1376 (KLR). In Rentco East Africa Limited v Dominic Mutua Ngonzi [2021] KEHC 1079 (KLR) in which Odunga, J. (as he then was) extensively discussed sections 107, 108, 109 and 112 of the Evidence Act (Cap. 80) Laws of Kenya on the legal burden of proof and the evidential burden of proof. In that case, the case of Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015] KEHC 8440 (KLR) was cited in which these provisions of the law were explained thus:
“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 purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides:
107(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.
Furthermore, the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act as follows:
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
32. This court is well aware that it should not lightly defer with the findings of the trial court where the same are based on an assessment of the facts before it. I am guided by the case of Makube v Nyamiro [1983] KLR 403, where the court stated that;
“… a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.”
33. In this case, the respondent produced documents to back up his claim. The documents were not seriously challenged or proved to be fake as alleged by Jamleck in his evidence.
34. When it came to proof of his case, the respondent produced 13 documents being acknowledgments of receipt of various quantities of maize from Mr. Daniel Wachira Gachoki. Each of them is on the company letter head of Kings Millers Ltd, the appellant and is signed by a signature which is identical to Jamleck Ngari’s signature as appearing in the documents which he filed in the trial court when he elected to act in person, for instance, notice of withdrawal of advocate dated 10/8/2016 and defendants’ list of documents dated 10/8/2016.
35. The several acknowledgements of receipt of the maize consignments indicate that “the company” confirms receipt of the maize. In each, the price of a 90kg bag was indicated as 2,500/=. The total number of bags acknowledged as received in the 13 documents is 1660 making the total amount payable KShs 4,150,000/=. This falls short of the sum of KShs 4,662,500/= claimed by the respondent in his plaint. The issue of this discrepancy aside, the contents of those documents evidence a contract or contracts for supply and delivery of maize by the respondent to the appellant.
36. As submitted by learned counsel for the respondent, under section 5 of the Sale of Goods Act (Cap. 31) Laws of Kenya, the contract for sale may be made in writing either with or without seal. The fact that the acknowledgments and the undertaking were without the seal of the company did not mean that the documents cannot be relied upon to prove the contract. That ground of appeal must therefore fail. Moreover, I have looked at all the documents of acknowledgement and just like the document of undertaking they all bear the rubber stamp of the appellant, King Millers Ltd.
37. Going back to the discrepancy in the amount claimed, there is a difference of KShs 512,500/= which when divided by 2,500/= would make a difference of 205 bags of maize. On the face of it, without more, this would mean the respondent did not prove that he had supplied these extra bags of maize and so was not entitled to receive payment for them.
38. But, the acknowledgments of delivery were not the only evidence of the transactions between the appellant and the respondent. There is the acknowledgment by way of undertaking signed by the two directors of the appellant that the company owed the respondent KShs 966,000/=.
39. In his plaint, the respondent pleaded in paragraph 6 that:
“…on 18th December 2010 the 1st Defendant (Jamleck Ngari) personally committed himself to pay the balance of KShs 966,000/= and he duly made an undertaking in writing.”
40. The defendants (appellant and Jamleck Ngari) in response through their joint statement of defence pleaded that:
“Paragraph 6 is denied in toto & Plaintiff put in strict proof thereof.”
41. This was a general denial made by the defendants to a specific claim made by the respondent.
42. That undertaking was not denied by the Jamleck. In fact, he included it in his documents in support of the defence. That undertaking was sufficient evidence to prove that part payment of the amount for the supply of the maize above was made. It was also sufficient proof that the total amount of the maize supplied was KShs 4,662,500/=. The respondent did not need to adduce any more evidence even as the acknowledgement documents fell short of establishing that the total sum was KShs 4,662,500/= translating to 1,865 bags of maize supplied and not KShs 4,150,000/= for 1660 bags proved by the acknowledgement documents.
43. The defendants had stated that if the maize was supplied, then it was received by one of the directors Samuel. The respondent produced evidence to show that the maize was not only received by the 1st defendant but expressly acknowledged to be on behalf of the company, the appellant. There was offer, acceptance and part payment for the contract as well as an intention by the parties to enter into the contract. The respondent performed its part of the bargain. The appellant did not complete the performance of its part of the contract. Part performance by way of part payment for the goods supplied is evidence that there was a contract.
44. Consequently, I find that the respondent supplied maize to the appellant, the same was acknowledged in writing on each occasion by one of its directors, Jamleck Ngari and the two directors Jamleck Ngari and Samuel Kinyua acknowledged the company’s indebtedness to the respondent through the joint undertaking to pay dated 18/12/2010. It is apparent from the contents of the documents that while making the acknowledgment of receipt of the maize and the undertaking the same was for the appellant and not for Jamleck in his individual capacity.
45. I find that the respondent was able to satisfy the trial court and the learned magistrate was correct in his finding that the suit against the 1st defendant was misplaced and but the appellant was liable to pay the sum of KShs 966,000/= to the respondent as the balance of the money due for the supply of maize to the appellant.
46. Consequently, I find that the appeal has no merit and the same is dismissed with costs to the respondent.
47. Orders accordingly.
Dated, Signed and Delivered on the virtual platform Teams this 3rd day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Nyaga holding brief for Maina Kagio for the Appellant.
Muthoni (Ms.) for the Respondent.
Brian: Court Assistant.