(Being an appeal from the judgment delivered by Hon. R.W Gitau (Mrs) (RM) on 9th May 2023 in Resident Magistrates Court at Mavoko in MCCC No. E931 of 2021)
1. This appeal arises from a judgment and decree entered in Mavoko Resident Magistrates Court Civil Case No. E931 of 2021. The genesis of the suit is a Plaint dated 12th November 2021 in which the Respondent sued the Appellant for breach of contract. The Respondent averred between 9th January 2020 to 7th January 2021, the parties entered into an agreement for the supply of pharmaceuticals, veterinary, vitamins, feed food raw materials and additives. It was agreed that the Respondent would supply the goods and the Appellant would would pay promptly. The Respondent averred that it duly supplied the goods during the stated period, but the Appellant failed to make payments amounting to Kshs 4, 625, 000/=. Consequently, the Respondent sought judgment for the said sum together with interest at court rates, damages for breach of contract and costs and interest.
2. In its defence, the Appellant denied the existence of any agreement for supply of the goods claimed. It further alleged that the respondent had breached trade terms by supplying substandard goods which were subsequently rejected by the Appellant’s customers.
3. The Respondent filed a reply to defence reiterating the contents of the plaint and denying the Appellant’s defence.
4. At the hearing, each party called one witness. Upon hearing and analysis the evidence , the trial court entered judgment against the Appellant for the sum of Kshs 4, 625, 000/= together with interest at court rates from the date of filing of the suit. The Respondent was also awarded the costs of the suit together with interest thereon at court rates.
5. Aggrieved by the decision, the Appellant lodged this appeal on several grounds including that the Learned Trial Magistrate erred in law and in fact by failing to give reasons for her conclusions of law and fact; by holding that there was a single contract instead of multiple independent contracts under the running account in dispute; by failing to ascertain whether each alleged contracts satisfied all the elements of a binding contract; by failing to determine whether there was proof of delivery of the goods in question; by failing to appreciate whether the Certificate of Electronic Record satisfied the requirements of the Evidence Act; by failing to appreciate whether the supposed admissions by the Appellant in the email correspondence were indeed admissions within the strict meaning of the word admission in law; by concluding that there were admissions in the email correspondence without pointing out what exactly amounted to an admission in the emails; concluding that the post-dated cheques adduced amounted to admissions yet the said cheques were for payments that did not relate to the claims in dispute; by failing to appreciate that the claim was not specifically pleaded nor specifically proved as required under law; by shifting the burden of proof to the Appellant based on the pleadings in the defence instead of relying on the evidence adduced by the Respondent and by failing to hold that the Respondent’s case had not been proved on a balance of probabilities.
6. For these reasons, the appellant prayed that the appeal be allowed with costs, the Judgment of the trial court delivered on 9th May 2023 be set aside and the Respondent’s suit be dismissed with costs to the Appellant.
7. The Appeal was canvassed by way of written submissions. Appellant’s submissions
8. The Appellant challenges the entirety of the judgment of the Lower Court and urges this Court, as a first appellate court, to re-evaluate the evidence and the law and arrive at its own independent conclusions. Counsel emphasizes that a first appeal is, in essence, a re-trial, placing reliance on Selle and another v Associated Motor Boat Company Ltd and Others (1968) EA 123). On that basis, the court is invited to reconsider the entire evidentiary and legal foundation of the Respondent’s claim.
9. The Appellant groups the eleven grounds of appeal into two broad categories. The first category concerns legal issues raised and argued before the Lower Court; the second concerns issues arising from the reasoning and conclusions contained in the impugned judgment.
10. On the first category, the Appellant’s counsel submits that the Respondent’s claim was one for special damages and therefore subject to strict rule that special damages must be specifically pleaded and strictly proved. Reliance is placed on Hahn v Singh Civil Appeal No. 42 of 1983 for the proposition that special damages must not only be expressly pleaded but also strictly proved. It is contended that the Plaint dated 12th November 2021 failed to particularise the claim with the specificity required in law. The Respondent allegedly lumped together a global sum of Kshs. 4,625,000/= without providing a breakdown showing what amount related to which category of goods whether pharmaceuticals, veterinary products, vitamins, feed raw materials or additives. According to the Appellant, this lack of particularisation rendered the pleading defective and deprived the Defence of a fair opportunity to respond with precision.
11. Further, it is argued that even if the pleading hurdle were overlooked, the Respondent failed to strictly prove the alleged special damages. The invoices and delivery notes relied upon are described as dubious, illegible, incomplete and lacking crucial particulars including the identity of the person who allegedly received the goods, corresponding invoice numbers, and dates of delivery. The Appellant contends that such documents could not amount to credible proof of delivery or indebtedness.
12. On the issue of burden of proof, the Appellant invokes section 107 of the Evidence Act and maintains that the legal burden always rests upon the Plaintiff and does not shift to the Defendant unless a prima facie case has first been established. Reliance is placed on Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 others, where the Supreme Court distinguished between the legal burden of proof and the evidentiary burden, holding that the latter only shifts once the former has been discharged. The Appellant submits that the Respondent never discharged its legal burden by producing credible documentary evidence capable of establishing a prima facie case. Consequently, no evidentiary burden could shift to the Appellant.
13. The Appellant also challenges the admissibility and probative value of the electronic correspondence relied upon by the trial court. It is contended that being electronic evidence, the emails required a proper certificate of authenticity under section 106 of the Evidence Act. The certificate produced is said to have been defective, thereby rendering the correspondence inadmissible. Even assuming admissibility, it is submitted that the emails did not contain any clear, specific and unequivocal admission of the debt claimed. The Appellant argues that in a running account involving multiple transactions, any admission must be tied to a specific invoice or delivery note; vague references cannot constitute admissions in law, particularly where grave legal consequences flow from such a finding. Similar criticism is directed at the post-dated cheques, which allegedly do not identify the specific debts to which they relate.
14. Turning to the second category of grounds, the Appellant faults the Learned Magistrate’s treatment of the contractual relationship between the parties. It is submitted that the court erred in treating the transactions as a single implied contract, whereas each order constituted a separate contract requiring proof of offer, acceptance, certainty of terms and performance. The Appellant contends that each invoice and corresponding delivery note should have been individually scrutinised to ascertain whether its terms were certain and whether performance was proved. The alleged failure to conduct this granular analysis is said to amount to a misdirection in law, particularly given that a contract with uncertain or illegible terms is unenforceable.
15. The Appellant further takes issue with the trial court’s finding that the Defence had departed from its pleadings. It is argued that the Defence adopted a broad approach in response to what is described as a sweeping and vague Plaint. In the absence of specific particulars in the Plaint, the Defence could not be expected to respond with precision. The criticism by the Magistrate is therefore described as unfair and unwarranted.
16. A central issue of the appeal is the allegation that the judgment was not adequately reasoned. The Appellant challenges the Magistrate’s conclusion that “from the delivery notes and invoices… it is apparent that the Plaintiff delivered the goods,” arguing that this was a conclusory statement unsupported by analysis of the objections raised regarding illegibility, missing entries and unidentified signatures. In support of the duty to give reasons, reliance is placed on Bwire v Wayo & Sailoki, Civil Appeal 032 of 2021 where the Appellant contends that the impugned judgment failed to trace the logical path from evidence to conclusion and left the parties to speculate as to how the court arrived at its findings.
17. Additionally, the Appellant criticises the Magistrate’s acknowledgment that some delivery notes were faint but that a reasonable explanation had been offered, arguing that the court failed to specify which documents were affected and what explanation was accepted. The use of the phrase “it is apparent” is said to fall short of the standard of proof on a balance of probabilities.
18. Finally, the Appellant contends that the trial court improperly shifted the burden of proof by faulting the Defendant for failing to produce a statement showing payments made and outstanding balances. It is argued that the Plaintiff bore the sole responsibility of pleading and proving its claim without calling upon the Defendant to fill evidentiary gaps.
19. In conclusion, the Appellant submits that the cumulative effect of the defective pleading of special damages, failure of strict proof, reliance on inadmissible or inconclusive electronic correspondence, misapprehension of the nature of the contractual relationship, inadequate reasoning in the judgment, and improper shifting of the burden of proof warrants the setting aside of the lower court’s judgment. The Appellant accordingly prays that the Respondent’s suit be dismissed with costs both in the lower court and on appeal.
Respondent’s submissions
20. The Respondent’s counsel began submissions with a brief introduction of the matter and identified the issues for determination as; whether the appeal is merited and whether the Appellant is entitled to the prayers sought.
21. On the question of whether the appeal is merited, the Respondent acknowledges that this being a first appeal, the Court is under a duty to re-evaluate the evidence and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses. In this regard, reliance is placed on Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) .
22. On the first ground of appeal, concerning the alleged failure by the Learned Magistrate to give reasons for her conclusions,, the Respondent submits that a plain reading of the judgment demonstrates that the trial court was guided by both the facts and the applicable law and that the reasoning leading to the conclusions is discernible from the judgment as a whole.
23. With respect to the second and third grounds, whether there was one contract or multiple independent contracts and whether the elements of a binding contract were established, the Respondent submits that the trial court correctly found that there existed an implied contractual relationship between the parties arising from their conduct and long-standing commercial dealings. It is contended that the parties operated a running account over a period of approximately five years, during which the Appellant placed orders and the Respondent supplied goods, generating invoices and delivery notes as goods were collected by the Appellant’s driver. The Respondent argues that the existence of a contract was properly inferred from this course of dealing. Reliance is placed on Mwangi t/a Stemer Hardware & Paints v Apex Steel Limited (Civil Appeal 367 of 2018) [2024] KEHC 7047 (KLR) (civ) (13 June 2024) (Judgment) which cited Devcon Group Limited v Timsales Limited holding that a contractual relationship may be partly oral and partly written, and that delivery notes, invoices, purchase orders and acknowledgment of receipt can collectively establish offer, acceptance and consideration. The Respondent contends that, similarly, the evidence on record demonstrated a valid and enforceable contract between the parties herein.
24. On the fourth ground concerning proof of delivery, the Respondent submits that the Learned Magistrate made a finding grounded in the pleadings and evidence that the Appellant did not deny supply of goods and that the delivery notes and invoices produced as exhibits showed delivery. It is argued that the Appellant was bound by its pleadings and could not resile from them at the hearing stage.
25. As regards the fifth and sixth grounds touching on the certificate of electronic evidence and the alleged admissions contained in email correspondence, the Respondent submits that the emails were accompanied by a certificate dated 18th January 2023 and were properly considered by the trial court. The Respondent further contends that the email correspondence and the issuance of five post-dated cheques constituted clear admissions of the outstanding debt. In support of the legal threshold for admissions, reliance is placed on 747Freighter Conversion LLC v One Jet One Airways Kenya Ltd & 3 others [2024] eKLR. The Respondent submits that the admissions in the present case met that standard and justified the trial court’s findings.
26. On the seventh and eighth grounds, the Respondent argues that the Appellant failed to include in the Record of Appeal the Respondent’s Supplementary List of Documents dated 18th January 2023, which contained the email correspondence and post-dated cheques relied upon by the trial court. The Respondent invites this court to call for the lower court file and consider those documents. In this regard, reliance is placed on Nyabayo v Shop and Deliver t/a Betika (Civil Appeal E191 of 2023) [2024] KEHC 10597 (KLR), where the High Court declined to disturb a decision of the lower tribunal where material documents relied upon below had been omitted from the record of appeal.
27. On the ninth ground, concerning the pleading and proof of special damages, the Respondent maintains that it specifically pleaded the sum of Kshs 4,625,000/= as the amount due for breach of contract and proved the same through a statement of accounts dated 4th October 2021, as well as the invoices and delivery notes annexed to its list of documents dated 12th November 2021. The Respondent therefore contends that both pleading and proof requirements were satisfied.
28. In response to the tenth ground on the alleged shifting of the burden of proof, the Respondent submits that it discharged its legal and evidentiary burden under sections 107, 108 and 109 of the Evidence Act. It argues that once it produced evidence of supply, invoices, statements of account, email correspondence and post-dated cheques, the evidentiary burden shifted to the Appellant to produce a statement showing payments made and any outstanding balances. In support of this proposition, reliance is placed on Kengere v Aisha Motor Dealers Ltd & 2 others [2025] KEHC 4798 (KLR).
29. On the eleventh ground, the Respondent maintains that it proved its case on a balance of probabilities and is entitled to enjoy the fruits of its judgment. Reliance is placed on Mati & another v Gicheru [2025] KEHC 2062 (KLR) where the court reiterated that while the legal burden rests throughout on the claimant, the evidential burden may shift depending on the evidence adduced and that the applicable standard in civil cases is proof on a balance of probabilities.
30. In conclusion, the Respondent submits that the Learned Magistrate properly evaluated the pleadings, documentary evidence and applicable legal principles; correctly found that a valid contractual relationship existed; properly relied on documentary and electronic evidence including admissions; and did not err in her appreciation of the burden of proof or the standard of proof. The Respondent therefore prays that the appeal be dismissed in its entirety with costs.
Analysis and Determination
31. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. The foregoing duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123.
32. Upon careful analysis of the record of appeal and the parties’ submissions two issues arise for determination:
a) Whether the Respondent proved, on a balance of probabilities, that there existed a binding contractual relationship under which the goods in question were supplied and remain unpaid in the sum of Kshs 4,625,000/=; and
b) Whether the trial court erred in its appreciation of the law relating to proof of special damages, admissions, electronic evidence.
Whether the Respondent proved on a balance of probabilities, that there existed a binding contractual relationship under which the goods in question were supplied and remain unpaid in the sum of Kshs 4,625,000/=
33. The Appellant initially denied the existence of an agreement for supply of goods. However, the evidence of DW1 materially qualifies that denial. DW1 expressly admitted that the parties had traded since 2014; that the Appellant purchased animal feed raw materials from the Respondent; that there existed a running account; that between January 2020 and January 2021 the Defendant made orders for supply of materials; that as at April 2020 the Defendant was in arrears; those payments were made in June 2020, August 2020 and January 2021; that cash flow difficulties affected payment.
34. This evidence is consistent with PW1’s testimony that the parties operated a long-standing commercial relationship under which orders were placed by phone, invoices and delivery notes were generated and goods were collected by the Appellant’s drivers.
35. The dispute therefore is not whether a contractual relationship existed. It plainly did. The question is whether the specific supplies giving rise to the claimed balance were proved.
36. The Appellant argues that each order constituted a separate contract and required individual proof of offer, acceptance and performance. While correct in principle, commercial law recognises that a contract may be partly oral, partly written or implied from a course of dealing. The Court of Appeal in Ali Abid Mohammed versus Kenya Shell & Company Limited (2017) eKLR, affirmed that a contract between parties may be inferred from the conduct of the parties, even where no words are used. The court said;
“It therefore follows that a contract can exist where no words have been used but where it can be inferred from the conduct of the parties that a contract has been concluded. See Timoney and King v King 1920 AD 133 at 141. In the circumstances of the instant case, there existed an enforceable contract between the parties by reason of Conduct. Indeed, it was not disputed by the respondent that it supplied petroleum products to the appellant at a specific amount per liter and for a certain period of time.”
37. From the above authority, it is clear that contracts may arise in writing, orally, partly orally and partly in writing, or by implication from conduct of the parties. The mutual intention to be bound may be expressed or inferred from conduct or course of dealing.
38. A running account arrangement, evidenced by repeated orders, invoices and payments, constitutes a continuing contractual framework within which individual supplies occur. In this matter, both parties admitted the existence of a running account. The real contest is not formation, but proof of delivery and indebtedness.
39. The Respondent relied on invoices, delivery notes, a statement of account dated 4th October 2021, email correspondence and post-dated cheques. The Appellant challenge these documents, pointing to imperfections such as faint delivery notes, absence of recipients’names, lack of company stamp, cancellations illegible entries and absences of LPOs.
40. PW1 explained that the delivery notes were carbon copies and had faded with time; that the Appellant’s drivers collected goods; that invoice numbers were written on delivery notes; and that the Defendant never contemporaneously complained of non-delivery. . Crucially, DW1, did not testify that the goods were not delivered. His position was narrower: that he could not confirm delivery in the absence of clear documentation; as he was not the store man. He admitted that invoices without proper documents were not paid, but also conceded that he had no documents showing returned goods, no written complaints regarding substandard goods, and no documentary protest disputing specific invoices.
41. In assessing whether delivery was proved, the court must consider the totality of the evidence, not isolated imperfections. To begin with and having looked at the evidence supplied in the lower court, the commercial relationship and continuous trading and arrears as at April 2020 are admitted. The email of 21st May 2020 and 22nd April 2020 acknowledges cash flow problems and promise progressive payment. Part payments were made even after the alleged disputed period. Importantly, the Appellant produced no documentary evidence of reconciliation, rejection or dispute of specific invoices at the material time. It is noteworthy that DW1 further admitted requesting the Respondent to hold cheques due to cash flow problems. Such conduct is inconsistent with a position that no goods were supplied.
42. The Appellant contends that unsigned delivery notes cannot prove delivery. While the absence of a stamp or printed name weakens evidentiary weight, it is not fatal where a course of dealing is admitted, invoices correspond with delivery notes, there is no evidence of returned goods, partial payment were made on account and arrears were acknowledged . Strict proof of special damages does not mean proof beyond doubt. It means credible documentary or other evidence capable of supporting the claimed figure. The statement of account, coupled with invoices and corroborated by admissions of arrears and payments, provided a prima facie evidential basis.
43. On the Appellant’s challenge to the admissibility and probative value of emails under Section 106B of the Evidence Act, the record shows that a Certificate dated 18th January 2023 was produced by the Respondent. The trial court admitted the emails, and no substantive evidence was led to demonstrate the certificate was defective beyond bare assertion. On substance, DW1 admitted that the email address was his, that the contents referencing cash flow difficulty were accurate and that as at April 2020, the Appellant was in arrears. The emails of April and May 2020 refer to inability to pay and an undertaking to pay progressively. While the emails may not itemise specific invoice numbers, in the context of a running account, a general acknowledgment of arrears constitutes evidence of indebtedness unless clearly qualified. Similarly, post-dated cheques, though not tied to specific invoices, are consistent with acknowledgment of debt. DW1 admitted issuing them and requesting that they be held. The Appellant’s argument that admissions must tie to specific invoices ignores the commercial reality of running accounts where indebtedness is often acknowledged in general terms.
44. Under Sections 107- 109 of the Evidence Act, the legal burden rested with the Respondent. The trial court evaluated whether the Respondent’s evidence was sufficient and found that the Appellant had not rebutted it.
45. On re-evaluation, this court is satisfied that the Respondent established a prima facie case. The combination of invoices, delivery notes, statements of account, email correspondence, and post-dated cheques, together with the Appellant’s admissions of arrears and partial payments, provides credible evidence that the goods were supplied and remain unpaid in the sum claimed.
b) Whether the trial court erred in its appreciation of the law relating to proof of special damages, admissions and electronic evidence
46. On proof of special damages, it is trite law that special damages must not only be specifically pleaded but must also be strictly proved. The question, therefore, is whether the trial court correctly applied this standard. The trial court rightly identified that the dispute did not concern the existence of a trading relationship, which was admitted but rather whether the outstanding sum claimed had been proved. The Respondent tendered invoices, delivery notes, a statement of account covering the material period, email correspondence accompanied by a certificate under section 106B of the Evidence Act, and postdated cheques issued by the Appellant. The Appellant admitted a long-standing commercial relationship, admitted operating a running account, admitted placing orders during the relevant period, admitted that payments had ceased due to cash flow constraints, and admitted that certain invoices remained unpaid. The Appellant did not produce a counter statement of account, did not produce documentary proof of returned goods, or evidence of rejection of the specific deliveries relied upon in the plaint.
47. In commercial litigation involving a running account, strict proof does not require production of a formal written contract or LPO for every transaction. What must be demonstrated is that goods were supplied pursuant to the established course of dealing and that payment remained outstanding. The delivery notes and invoices, though some were faint and lacked company stamps, were not shown to be fabricated. The defence did not produce evidence of forgery, nor did it demonstrate that the signatures appearing on the delivery notes were unauthorised. More significantly, the Appellant admitted that the goods were supplied during the relevant period and that payments were made intermittently against invoices as they arose. In the absence of rebuttal evidence or proof of rejection, the documentary trail coupled with admissions constituted prima facie proof of supply and indebtedness.
48. On the question of admissions, the trial court relied on email correspondence in which the defendant acknowledged cash flow challenges and undertook to make progressive payments. An acknowledgment of inability to pay coupled with subsequent part-payments and issuance of postdated cheques is conduct referable to indebtedness. While a general admission of financial difficulty would not, without more, amount to admission of a specific quantified sum, the emails in the context of a running account, read together with the statement of account and cheques, were referable to the very transactions in dispute. The Appellant did not dispute authorship of the emails and did not contest the authenticity of the cheques. In those circumstances, the trial court was entitled to treat the communications and the cheques as acknowledgment of liability within the commercial relationship.
49. With respect to electronic evidence, the emails were accompanied by a certificate dated 18th January 2023. Section 106B of the Evidence Act govern admissibility of electronic records. The defence did not object to their production nor challenge the certificate’s compliance at trial. Where authenticity is not contested and the statutory certificate is produced, courts have accepted such evidence as admissible. The trial court therefore did not err in admitting and relying on the emails, particularly given the absence of any evidentiary challenge to their source or integrity.
50. Accordingly, the trial court did not misapprehend the law relating to strict proof of special damages, admissions, electronic evidence or the burden of proof. The Respondent proved its claim to the required standard, and the finding that the Appellant owed Kshs. 4,625,000/= was legally and evidentially sound.
51. In this regard, it is my finding that the Appellant’s appeal lacks merit and is dismissed in its entirety with costs to the respondent.
Orders accordingly
Dated, signed and delivered this 6th day of March 2026
1. This appeal arises from a judgment and decree entered in Mavoko Resident Magistrates Court Civil Case No. E931 of 2021. The genesis of the suit is a Plaint dated 12th November 2021 in which the Respondent sued the Appellant for breach of contract. The Respondent averred between 9th January 2020 to 7th January 2021, the parties entered into an agreement for the supply of pharmaceuticals, veterinary, vitamins, feed food raw materials and additives. It was agreed that the Respondent would supply the goods and the Appellant would would pay promptly. The Respondent averred that it duly supplied the goods during the stated period, but the Appellant failed to make payments amounting to Kshs 4, 625, 000/=. Consequently, the Respondent sought judgment for the said sum together with interest at court rates, damages for breach of contract and costs and interest.
2. In its defence, the Appellant denied the existence of any agreement for supply of the goods claimed. It further alleged that the respondent had breached trade terms by supplying substandard goods which were subsequently rejected by the Appellant’s customers.
3. The Respondent filed a reply to defence reiterating the contents of the plaint and denying the Appellant’s defence.
4. At the hearing, each party called one witness. Upon hearing and analysis the evidence , the trial court entered judgment against the Appellant for the sum of Kshs 4, 625, 000/= together with interest at court rates from the date of filing of the suit. The Respondent was also awarded the costs of the suit together with interest thereon at court rates.
5. Aggrieved by the decision, the Appellant lodged this appeal on several grounds including that the Learned Trial Magistrate erred in law and in fact by failing to give reasons for her conclusions of law and fact; by holding that there was a single contract instead of multiple independent contracts under the running account in dispute; by failing to ascertain whether each alleged contracts satisfied all the elements of a binding contract; by failing to determine whether there was proof of delivery of the goods in question; by failing to appreciate whether the Certificate of Electronic Record satisfied the requirements of the Evidence Act; by failing to appreciate whether the supposed admissions by the Appellant in the email correspondence were indeed admissions within the strict meaning of the word admission in law; by concluding that there were admissions in the email correspondence without pointing out what exactly amounted to an admission in the emails; concluding that the post-dated cheques adduced amounted to admissions yet the said cheques were for payments that did not relate to the claims in dispute; by failing to appreciate that the claim was not specifically pleaded nor specifically proved as required under law; by shifting the burden of proof to the Appellant based on the pleadings in the defence instead of relying on the evidence adduced by the Respondent and by failing to hold that the Respondent’s case had not been proved on a balance of probabilities.
6. For these reasons, the appellant prayed that the appeal be allowed with costs, the Judgment of the trial court delivered on 9th May 2023 be set aside and the Respondent’s suit be dismissed with costs to the Appellant.
7. The Appeal was canvassed by way of written submissions. Appellant’s submissions
8. The Appellant challenges the entirety of the judgment of the Lower Court and urges this Court, as a first appellate court, to re-evaluate the evidence and the law and arrive at its own independent conclusions. Counsel emphasizes that a first appeal is, in essence, a re-trial, placing reliance on Selle and another v Associated Motor Boat Company Ltd and Others (1968) EA 123). On that basis, the court is invited to reconsider the entire evidentiary and legal foundation of the Respondent’s claim.
9. The Appellant groups the eleven grounds of appeal into two broad categories. The first category concerns legal issues raised and argued before the Lower Court; the second concerns issues arising from the reasoning and conclusions contained in the impugned judgment.
10. On the first category, the Appellant’s counsel submits that the Respondent’s claim was one for special damages and therefore subject to strict rule that special damages must be specifically pleaded and strictly proved. Reliance is placed on Hahn v Singh Civil Appeal No. 42 of 1983 for the proposition that special damages must not only be expressly pleaded but also strictly proved. It is contended that the Plaint dated 12th November 2021 failed to particularise the claim with the specificity required in law. The Respondent allegedly lumped together a global sum of Kshs. 4,625,000/= without providing a breakdown showing what amount related to which category of goods whether pharmaceuticals, veterinary products, vitamins, feed raw materials or additives. According to the Appellant, this lack of particularisation rendered the pleading defective and deprived the Defence of a fair opportunity to respond with precision.
11. Further, it is argued that even if the pleading hurdle were overlooked, the Respondent failed to strictly prove the alleged special damages. The invoices and delivery notes relied upon are described as dubious, illegible, incomplete and lacking crucial particulars including the identity of the person who allegedly received the goods, corresponding invoice numbers, and dates of delivery. The Appellant contends that such documents could not amount to credible proof of delivery or indebtedness.
12. On the issue of burden of proof, the Appellant invokes section 107 of the Evidence Act and maintains that the legal burden always rests upon the Plaintiff and does not shift to the Defendant unless a prima facie case has first been established. Reliance is placed on Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 others, where the Supreme Court distinguished between the legal burden of proof and the evidentiary burden, holding that the latter only shifts once the former has been discharged. The Appellant submits that the Respondent never discharged its legal burden by producing credible documentary evidence capable of establishing a prima facie case. Consequently, no evidentiary burden could shift to the Appellant.
13. The Appellant also challenges the admissibility and probative value of the electronic correspondence relied upon by the trial court. It is contended that being electronic evidence, the emails required a proper certificate of authenticity under section 106 of the Evidence Act. The certificate produced is said to have been defective, thereby rendering the correspondence inadmissible. Even assuming admissibility, it is submitted that the emails did not contain any clear, specific and unequivocal admission of the debt claimed. The Appellant argues that in a running account involving multiple transactions, any admission must be tied to a specific invoice or delivery note; vague references cannot constitute admissions in law, particularly where grave legal consequences flow from such a finding. Similar criticism is directed at the post-dated cheques, which allegedly do not identify the specific debts to which they relate.
14. Turning to the second category of grounds, the Appellant faults the Learned Magistrate’s treatment of the contractual relationship between the parties. It is submitted that the court erred in treating the transactions as a single implied contract, whereas each order constituted a separate contract requiring proof of offer, acceptance, certainty of terms and performance. The Appellant contends that each invoice and corresponding delivery note should have been individually scrutinised to ascertain whether its terms were certain and whether performance was proved. The alleged failure to conduct this granular analysis is said to amount to a misdirection in law, particularly given that a contract with uncertain or illegible terms is unenforceable.
15. The Appellant further takes issue with the trial court’s finding that the Defence had departed from its pleadings. It is argued that the Defence adopted a broad approach in response to what is described as a sweeping and vague Plaint. In the absence of specific particulars in the Plaint, the Defence could not be expected to respond with precision. The criticism by the Magistrate is therefore described as unfair and unwarranted.
16. A central issue of the appeal is the allegation that the judgment was not adequately reasoned. The Appellant challenges the Magistrate’s conclusion that “from the delivery notes and invoices… it is apparent that the Plaintiff delivered the goods,” arguing that this was a conclusory statement unsupported by analysis of the objections raised regarding illegibility, missing entries and unidentified signatures. In support of the duty to give reasons, reliance is placed on Bwire v Wayo & Sailoki, Civil Appeal 032 of 2021 where the Appellant contends that the impugned judgment failed to trace the logical path from evidence to conclusion and left the parties to speculate as to how the court arrived at its findings.
17. Additionally, the Appellant criticises the Magistrate’s acknowledgment that some delivery notes were faint but that a reasonable explanation had been offered, arguing that the court failed to specify which documents were affected and what explanation was accepted. The use of the phrase “it is apparent” is said to fall short of the standard of proof on a balance of probabilities.
18. Finally, the Appellant contends that the trial court improperly shifted the burden of proof by faulting the Defendant for failing to produce a statement showing payments made and outstanding balances. It is argued that the Plaintiff bore the sole responsibility of pleading and proving its claim without calling upon the Defendant to fill evidentiary gaps.
19. In conclusion, the Appellant submits that the cumulative effect of the defective pleading of special damages, failure of strict proof, reliance on inadmissible or inconclusive electronic correspondence, misapprehension of the nature of the contractual relationship, inadequate reasoning in the judgment, and improper shifting of the burden of proof warrants the setting aside of the lower court’s judgment. The Appellant accordingly prays that the Respondent’s suit be dismissed with costs both in the lower court and on appeal.
Respondent’s submissions
20. The Respondent’s counsel began submissions with a brief introduction of the matter and identified the issues for determination as; whether the appeal is merited and whether the Appellant is entitled to the prayers sought.
21. On the question of whether the appeal is merited, the Respondent acknowledges that this being a first appeal, the Court is under a duty to re-evaluate the evidence and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses. In this regard, reliance is placed on Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) .
22. On the first ground of appeal, concerning the alleged failure by the Learned Magistrate to give reasons for her conclusions,, the Respondent submits that a plain reading of the judgment demonstrates that the trial court was guided by both the facts and the applicable law and that the reasoning leading to the conclusions is discernible from the judgment as a whole.
23. With respect to the second and third grounds, whether there was one contract or multiple independent contracts and whether the elements of a binding contract were established, the Respondent submits that the trial court correctly found that there existed an implied contractual relationship between the parties arising from their conduct and long-standing commercial dealings. It is contended that the parties operated a running account over a period of approximately five years, during which the Appellant placed orders and the Respondent supplied goods, generating invoices and delivery notes as goods were collected by the Appellant’s driver. The Respondent argues that the existence of a contract was properly inferred from this course of dealing. Reliance is placed on Mwangi t/a Stemer Hardware & Paints v Apex Steel Limited (Civil Appeal 367 of 2018) [2024] KEHC 7047 (KLR) (civ) (13 June 2024) (Judgment) which cited Devcon Group Limited v Timsales Limited holding that a contractual relationship may be partly oral and partly written, and that delivery notes, invoices, purchase orders and acknowledgment of receipt can collectively establish offer, acceptance and consideration. The Respondent contends that, similarly, the evidence on record demonstrated a valid and enforceable contract between the parties herein.
24. On the fourth ground concerning proof of delivery, the Respondent submits that the Learned Magistrate made a finding grounded in the pleadings and evidence that the Appellant did not deny supply of goods and that the delivery notes and invoices produced as exhibits showed delivery. It is argued that the Appellant was bound by its pleadings and could not resile from them at the hearing stage.
25. As regards the fifth and sixth grounds touching on the certificate of electronic evidence and the alleged admissions contained in email correspondence, the Respondent submits that the emails were accompanied by a certificate dated 18th January 2023 and were properly considered by the trial court. The Respondent further contends that the email correspondence and the issuance of five post-dated cheques constituted clear admissions of the outstanding debt. In support of the legal threshold for admissions, reliance is placed on 747Freighter Conversion LLC v One Jet One Airways Kenya Ltd & 3 others [2024] eKLR. The Respondent submits that the admissions in the present case met that standard and justified the trial court’s findings.
26. On the seventh and eighth grounds, the Respondent argues that the Appellant failed to include in the Record of Appeal the Respondent’s Supplementary List of Documents dated 18th January 2023, which contained the email correspondence and post-dated cheques relied upon by the trial court. The Respondent invites this court to call for the lower court file and consider those documents. In this regard, reliance is placed on Nyabayo v Shop and Deliver t/a Betika (Civil Appeal E191 of 2023) [2024] KEHC 10597 (KLR), where the High Court declined to disturb a decision of the lower tribunal where material documents relied upon below had been omitted from the record of appeal.
27. On the ninth ground, concerning the pleading and proof of special damages, the Respondent maintains that it specifically pleaded the sum of Kshs 4,625,000/= as the amount due for breach of contract and proved the same through a statement of accounts dated 4th October 2021, as well as the invoices and delivery notes annexed to its list of documents dated 12th November 2021. The Respondent therefore contends that both pleading and proof requirements were satisfied.
28. In response to the tenth ground on the alleged shifting of the burden of proof, the Respondent submits that it discharged its legal and evidentiary burden under sections 107, 108 and 109 of the Evidence Act. It argues that once it produced evidence of supply, invoices, statements of account, email correspondence and post-dated cheques, the evidentiary burden shifted to the Appellant to produce a statement showing payments made and any outstanding balances. In support of this proposition, reliance is placed on Kengere v Aisha Motor Dealers Ltd & 2 others [2025] KEHC 4798 (KLR).
29. On the eleventh ground, the Respondent maintains that it proved its case on a balance of probabilities and is entitled to enjoy the fruits of its judgment. Reliance is placed on Mati & another v Gicheru [2025] KEHC 2062 (KLR) where the court reiterated that while the legal burden rests throughout on the claimant, the evidential burden may shift depending on the evidence adduced and that the applicable standard in civil cases is proof on a balance of probabilities.
30. In conclusion, the Respondent submits that the Learned Magistrate properly evaluated the pleadings, documentary evidence and applicable legal principles; correctly found that a valid contractual relationship existed; properly relied on documentary and electronic evidence including admissions; and did not err in her appreciation of the burden of proof or the standard of proof. The Respondent therefore prays that the appeal be dismissed in its entirety with costs.
Analysis and Determination
31. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. The foregoing duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123.
32. Upon careful analysis of the record of appeal and the parties’ submissions two issues arise for determination:
a) Whether the Respondent proved, on a balance of probabilities, that there existed a binding contractual relationship under which the goods in question were supplied and remain unpaid in the sum of Kshs 4,625,000/=; and
b) Whether the trial court erred in its appreciation of the law relating to proof of special damages, admissions, electronic evidence.
Whether the Respondent proved on a balance of probabilities, that there existed a binding contractual relationship under which the goods in question were supplied and remain unpaid in the sum of Kshs 4,625,000/=
33. The Appellant initially denied the existence of an agreement for supply of goods. However, the evidence of DW1 materially qualifies that denial. DW1 expressly admitted that the parties had traded since 2014; that the Appellant purchased animal feed raw materials from the Respondent; that there existed a running account; that between January 2020 and January 2021 the Defendant made orders for supply of materials; that as at April 2020 the Defendant was in arrears; those payments were made in June 2020, August 2020 and January 2021; that cash flow difficulties affected payment.
34. This evidence is consistent with PW1’s testimony that the parties operated a long-standing commercial relationship under which orders were placed by phone, invoices and delivery notes were generated and goods were collected by the Appellant’s drivers.
35. The dispute therefore is not whether a contractual relationship existed. It plainly did. The question is whether the specific supplies giving rise to the claimed balance were proved.
36. The Appellant argues that each order constituted a separate contract and required individual proof of offer, acceptance and performance. While correct in principle, commercial law recognises that a contract may be partly oral, partly written or implied from a course of dealing. The Court of Appeal in Ali Abid Mohammed versus Kenya Shell & Company Limited (2017) eKLR, affirmed that a contract between parties may be inferred from the conduct of the parties, even where no words are used. The court said;
“It therefore follows that a contract can exist where no words have been used but where it can be inferred from the conduct of the parties that a contract has been concluded. See Timoney and King v King 1920 AD 133 at 141. In the circumstances of the instant case, there existed an enforceable contract between the parties by reason of Conduct. Indeed, it was not disputed by the respondent that it supplied petroleum products to the appellant at a specific amount per liter and for a certain period of time.”
37. From the above authority, it is clear that contracts may arise in writing, orally, partly orally and partly in writing, or by implication from conduct of the parties. The mutual intention to be bound may be expressed or inferred from conduct or course of dealing.
38. A running account arrangement, evidenced by repeated orders, invoices and payments, constitutes a continuing contractual framework within which individual supplies occur. In this matter, both parties admitted the existence of a running account. The real contest is not formation, but proof of delivery and indebtedness.
39. The Respondent relied on invoices, delivery notes, a statement of account dated 4th October 2021, email correspondence and post-dated cheques. The Appellant challenge these documents, pointing to imperfections such as faint delivery notes, absence of recipients’names, lack of company stamp, cancellations illegible entries and absences of LPOs.
40. PW1 explained that the delivery notes were carbon copies and had faded with time; that the Appellant’s drivers collected goods; that invoice numbers were written on delivery notes; and that the Defendant never contemporaneously complained of non-delivery. . Crucially, DW1, did not testify that the goods were not delivered. His position was narrower: that he could not confirm delivery in the absence of clear documentation; as he was not the store man. He admitted that invoices without proper documents were not paid, but also conceded that he had no documents showing returned goods, no written complaints regarding substandard goods, and no documentary protest disputing specific invoices.
41. In assessing whether delivery was proved, the court must consider the totality of the evidence, not isolated imperfections. To begin with and having looked at the evidence supplied in the lower court, the commercial relationship and continuous trading and arrears as at April 2020 are admitted. The email of 21st May 2020 and 22nd April 2020 acknowledges cash flow problems and promise progressive payment. Part payments were made even after the alleged disputed period. Importantly, the Appellant produced no documentary evidence of reconciliation, rejection or dispute of specific invoices at the material time. It is noteworthy that DW1 further admitted requesting the Respondent to hold cheques due to cash flow problems. Such conduct is inconsistent with a position that no goods were supplied.
42. The Appellant contends that unsigned delivery notes cannot prove delivery. While the absence of a stamp or printed name weakens evidentiary weight, it is not fatal where a course of dealing is admitted, invoices correspond with delivery notes, there is no evidence of returned goods, partial payment were made on account and arrears were acknowledged . Strict proof of special damages does not mean proof beyond doubt. It means credible documentary or other evidence capable of supporting the claimed figure. The statement of account, coupled with invoices and corroborated by admissions of arrears and payments, provided a prima facie evidential basis.
43. On the Appellant’s challenge to the admissibility and probative value of emails under Section 106B of the Evidence Act, the record shows that a Certificate dated 18th January 2023 was produced by the Respondent. The trial court admitted the emails, and no substantive evidence was led to demonstrate the certificate was defective beyond bare assertion. On substance, DW1 admitted that the email address was his, that the contents referencing cash flow difficulty were accurate and that as at April 2020, the Appellant was in arrears. The emails of April and May 2020 refer to inability to pay and an undertaking to pay progressively. While the emails may not itemise specific invoice numbers, in the context of a running account, a general acknowledgment of arrears constitutes evidence of indebtedness unless clearly qualified. Similarly, post-dated cheques, though not tied to specific invoices, are consistent with acknowledgment of debt. DW1 admitted issuing them and requesting that they be held. The Appellant’s argument that admissions must tie to specific invoices ignores the commercial reality of running accounts where indebtedness is often acknowledged in general terms.
44. Under Sections 107- 109 of the Evidence Act, the legal burden rested with the Respondent. The trial court evaluated whether the Respondent’s evidence was sufficient and found that the Appellant had not rebutted it.
45. On re-evaluation, this court is satisfied that the Respondent established a prima facie case. The combination of invoices, delivery notes, statements of account, email correspondence, and post-dated cheques, together with the Appellant’s admissions of arrears and partial payments, provides credible evidence that the goods were supplied and remain unpaid in the sum claimed.
b) Whether the trial court erred in its appreciation of the law relating to proof of special damages, admissions and electronic evidence
46. On proof of special damages, it is trite law that special damages must not only be specifically pleaded but must also be strictly proved. The question, therefore, is whether the trial court correctly applied this standard. The trial court rightly identified that the dispute did not concern the existence of a trading relationship, which was admitted but rather whether the outstanding sum claimed had been proved. The Respondent tendered invoices, delivery notes, a statement of account covering the material period, email correspondence accompanied by a certificate under section 106B of the Evidence Act, and postdated cheques issued by the Appellant. The Appellant admitted a long-standing commercial relationship, admitted operating a running account, admitted placing orders during the relevant period, admitted that payments had ceased due to cash flow constraints, and admitted that certain invoices remained unpaid. The Appellant did not produce a counter statement of account, did not produce documentary proof of returned goods, or evidence of rejection of the specific deliveries relied upon in the plaint.
47. In commercial litigation involving a running account, strict proof does not require production of a formal written contract or LPO for every transaction. What must be demonstrated is that goods were supplied pursuant to the established course of dealing and that payment remained outstanding. The delivery notes and invoices, though some were faint and lacked company stamps, were not shown to be fabricated. The defence did not produce evidence of forgery, nor did it demonstrate that the signatures appearing on the delivery notes were unauthorised. More significantly, the Appellant admitted that the goods were supplied during the relevant period and that payments were made intermittently against invoices as they arose. In the absence of rebuttal evidence or proof of rejection, the documentary trail coupled with admissions constituted prima facie proof of supply and indebtedness.
48. On the question of admissions, the trial court relied on email correspondence in which the defendant acknowledged cash flow challenges and undertook to make progressive payments. An acknowledgment of inability to pay coupled with subsequent part-payments and issuance of postdated cheques is conduct referable to indebtedness. While a general admission of financial difficulty would not, without more, amount to admission of a specific quantified sum, the emails in the context of a running account, read together with the statement of account and cheques, were referable to the very transactions in dispute. The Appellant did not dispute authorship of the emails and did not contest the authenticity of the cheques. In those circumstances, the trial court was entitled to treat the communications and the cheques as acknowledgment of liability within the commercial relationship.
49. With respect to electronic evidence, the emails were accompanied by a certificate dated 18th January 2023. Section 106B of the Evidence Act govern admissibility of electronic records. The defence did not object to their production nor challenge the certificate’s compliance at trial. Where authenticity is not contested and the statutory certificate is produced, courts have accepted such evidence as admissible. The trial court therefore did not err in admitting and relying on the emails, particularly given the absence of any evidentiary challenge to their source or integrity.
50. Accordingly, the trial court did not misapprehend the law relating to strict proof of special damages, admissions, electronic evidence or the burden of proof. The Respondent proved its claim to the required standard, and the finding that the Appellant owed Kshs. 4,625,000/= was legally and evidentially sound.
51. In this regard, it is my finding that the Appellant’s appeal lacks merit and is dismissed in its entirety with costs to the respondent.
Orders accordingly
Dated, signed and delivered this 6th day of March 2026