1. The Appellant instituted this suit vide a plaint dated 15th January, 2008 and filed The Appellant prayed for judgment against the Respondent for the principal sum of Kshs. 92,200/- costs of the suit and interest.
2. The Respondent entered appearance and filed their statement of defence dated 14th March 2008.
3. The suit proceeded to full hearing The evidence before the trial court was as follows ; Alice Muthoni Muruku (PW1) - the Technical Executive of the plaintiff testified that in the year 2001 the plaintiff submitted a quotation for water proofing a swimming pool and a tank at Sash apartments which were owned by the defendant and on which the defendant was doing construction work. She produced the quotation dated 21/5/01 for Kshs 192,292.80 as exhibit P 1. On 3/8/01 they revised the quotation after a meeting between Mrs Njage for Ecospace Consultants and a Mr Mburu for the defendant.
4. Pw1 testified that the quotation was revised to Kshs 152,290/=. She stated further that the plaintiff wrote to the defendant a letter dated 3/8/01 confirming the terms of the agreement. The defendant accepted the revised quotation vide a letter date 9/8/01 which she produced as exhibit P2. The plaintiff proceeded to the site along Oloomore Road and in January 2002 it completed the work. The defendant paid the plaintiff Kshs 60,000/= by cheque No. 000127 leaving a balance of Kshs 92,290/=. She produced the demand notice dated 6/10/06 as exhibit
5. The defendant filed a statement of defence in which it denied the plaintiff's claim. PETER KAMAU IKIGO (DW1) the defendant Consulting 310 Engineer stated the defendant does not owe the plaintiff Kshs 92,290/= and that exhibit Pl is a photocopy with additional writings and commends which are not certified. He however admitted that the plaintiff and the defendant had dealings regarding some work of water proofing the swimming pool and that the plaintiff was required to have the work certified if it did any work.
6. Dw1 further stated that if the tender was accepted then the plaintiff ought to
have done the work and have it certified adding that Kshs.60,000/= was paid by K A M Consult Limited but not the defendant.
7. The parties also submitted through their respective advocates who filed written submissions. Upon hearing the parties the trial court delivered a judgment dated 30th September 2009 in which it dismissed the appellant’s suit .
8. The Appellant aggrieved by the said judgment lodged the instant Appeal and set out grounds in the Memorandum of Appeal dated 20th December 2011 as hereunder;
i. THAT the learned trial magistrate erred in law and in fact by holding that the Plaintiff never proved work done by it when the Defendant had admitted in its pleadings and evidence that it had dealt with the Plaintiff.
ii. THAT the learned trial magistrate erred in law and in fact by allowing the Defendant to raise issues in evidence which had not been pleaded in its pleadings.
iii. THAT the learned trial magistrate erred in fact in saying that "..it was upon the Plaintiff to demonstrate that the Defendant and KAM Consult Limited are one and the same thing-a burden it failed to discharge" when DWl for the Defendant had admitted that he was the Managing Director of KAM Consult and also Director of KAM Company Ltd.
iv. THAT the Learned trial Magistrate erred in law and fact when he held that the Plaintiff had failed to prove its case against the Defendant on a balance of probabilities when the D.W.I had admitted in evidence that the Defendant owed money to the Plaintiff.
v. THAT the judgment was against the weight of the clear evidence adduced by the Plaintiff and conceded by the Defendant.
REASONS WHEREFORE the Appellant prays that this appeal be allowed the judgement of the lower Court dated 30th September 2009 be set aside and/or varied and judgment be entered in favour of the Appellant as prayed in the Plaint. The Appellant prays for the costs of this Appeal.
9. By consent of parties this appeal was canvassed by way of written submissions. The parties filed their respective submissions which I have carefully analyzed and considered together with case law in support.
10. From the pleadings the main issues arising for determination is whether or not the trial court erred in dismissing the appellant’s case.
11. This being a first appeal, this court has a duty to review the evidence afresh, both on points of law and facts, reassess and reconsider it and make its own conclusion on it bearing in mind that it did not see the witnesses testify before the trial court and give allowance for this as was held in the case of Selle & Another v Associated Motor Boat Co. Ltd & Another (1968) EA 123 and reiterated by the Court of Appeal in the case of Five Forty Aviation Limited v Erwan Lanoe [2019] eKLR
12. The background to this matter is the appellant filed a plaint seeking judgment against respondent. Under paragraph 3 of the plaint it was averred by the plaintiff that the plaintiff’s claim against the respondent if for a sum of Kshs.92,200/= being monies owing to the plaintiff for the services rendered and goods supplied to the defendant in 2001 upto 2002.
13. The respondent in response denied the above allegations. The respondent stated the plaintiff and defendant had dealings regarding work of water proofing the swimming pool and that the plaintiff was required to have the work certified if it was done.
14. The appellant in support of its case produced a proposal dated 21.6.2001 as exhibit P1. I have perused the aforementioned document and I note the document has cancellation and other writings which have not been countersigned. There is also a letter dated 9.8.2001 from the defendant addressed to the appellant showing that the tender for Kshs.152,290/= was accepted. However, no evidence was tendered that the work was done as tendered such as certificate of completion.
15. It was also evidence of the respondent that there was payment of Kshs.60,000/=was by KAM Consult Limited but not the defendant. The respondent during cross examination admitted that it owed the plaintiff Kshs.152,290 but there is no evidence that the plaintiff rendered the said services.
16. From the above analysis It was incumbent upon the plaintiff to prove on a balance of probabilities that it rendered services and/or supplied goods to the respondent during the period aforesaid and as a result whereof the respondent owes the plaintiff Kshs.92,200/=.
17. From evidence on record I find there is no evidence that the work was done that showed the appellant performed its part of the contract. The appellant was required to obtain a certificate of the work done from the respondent. No evidenced of the certificate was produced.
18. Section 107 of the Evidence Act 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. Section 108 is also to the effect that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side, while section 109 states that 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.
19. This notwithstanding, it is also trite that facts admitted in evidence need not be proved. In Synergy Industrial Credit Limited v Oxyplus International Limited & 2 others [2021] eKLR the court held as follows;
“A clear and unequivocable admission of fact is conclusive, rendering it unnecessary for the one party (in whose favour the admission was made) to adduce evidence to prove the admitted fact, and incompetent for the other party, making the admission to adduce evidence to contradict it. The rational for this principle is confirmed by Order 13 Rule (2) of the Civil Procedure Rules. A reading of this rule leaves no doubt that admissions made either in the pleadings or otherwise are binding on the party who makes the admission and no further evidence need to be adduced by the other party in respect of those facts admitted and the court can (and should) make an order purely based on those admissions. The effect of this principle is that it is not necessary to adduce evidence to prove admitted facts.”
20. From the onset, respondent’s witness admitted that he was the Managing Director of KAM Consult and also Director of KAM Company Ltd. Further, he acknowledged that a tender was accepted for the suit construction for a reviewed sum of kshs.152,290/=, which works Kshs.60,000/= was paid by K A M Consult Limited, both managed and/or directed by DW1. During, trial DW1 further acknowledged indebtedness to the appellant, despite holding out that a completion certificate was necessary.
21. In Express Automobile Kenya Limited v Kenya Farmers Association Limited & another {2020} eKLR the court stated that in law, an admission should reflect a conscious and deliberate act of the person making it, showing an intention to be bound by it. As for the court, the power to enter judgement on admission is not mandatory or peremptory; it is discretionary.
22. In this instance, based on the evidence before, I shall exercise that discretion in favour of the appellant. It was a misapprehension by the trial court to disregard the material admissions by the respondent, in so far as its indebtedness to the appellant is concerned.
23. Having considered this appeal, the evidence and the arguments as well as the decision of the trial court and reasons thereof,and having given due consideration to all the materials on record, I find the appeal meritorious.
Conclusion
24. Accordingly, the trial court’s judgment is hereby set aside in its entirety, and thereby the appellant/plaintiff’s suit is allowed for the principal sum of Kshs.92,200/- and interests from the time of filing suit.
25. Costs of the appeal assessed at Khs.30,000 all-inclusive and are awarded to the appellant.
Dated, Signed and Delivered at NAIROBI Virtually this ……31ST………Day of JULY, 2024.
……………………
WENDY MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPELANT...................................
FOR THE RESPONDENT.............................
COURT ASSISTANT....................................