MWANZO MPYA TRADING COMPANY VS SARJUDAS ENTERPRISES LIMITED

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOSi

CIVIL APPEAL NO. E087 OF  2023

MWANZO MPYA TRADINGCOMPANY LIMITED .....APPELLANT

VERSUS

SARJUDAS ENTERPRISES LIMITED......................RESPONDENT

JUDGEMENT

1.    The Respondent vide a Plaint dated 26th November 2021 sued the Appellant seeking the following reliefs;

a) Amount owing to it of Kenya shillings three million eight hundred thousand shillings (Kshs.3,800,000).

b) Interest on the above at commercial rate.

c) Cost and interest of the suit.

d) Any other relief that the Honourable Court deemed fit to grant.

2.   The Appellant entered appearance on the 14th of December 2021and filed a Statement of defence dated the same day in which it basically denied the Respondent’s claim and prayed that the Respondent’s suit be dismissed with costs.

1. The suit was set down for hearing during which the Respondent’s only witness Hirani Jayantilal Shivji (PW1), the Respondent's proprietor told the court that from the year 2016 to 2020 his hardware was doing business with the Appellant. They supplied the Appellant with building materials and thereafter generated invoices for each sale. The Appellant would make payments after taking possession of the goods.
2. PW1 further stated that they operated in the same model for a period of time. According to him the Appellant would collect goods on credit and issue postdated cheques.
3. It was his evidence that in the year 2018, some of the cheques issued bounced. The Appellant approached him and acknowledged the debt and promised to pay. He issued cheques for payment but were dishonoured upon presentation to the bank.

6.    He called the Appellant and requested for fulfillment of their obligations and make payments for the goods already supplied. That despite demand and constant reminders the Appellant failed to pay for the goods supplied.

7.   According to PW1 the Appellant had failed to pay a sum of Kshs.3,800,000/= for the goods supplied. He produced in court the copies of the ledger, invoices, dishonoured cheques, email correspondence and VAT withholding tax certificates.

8.   The Appellant too called one witness, Richard Muia Masika (DW1) who told the court that he is a director of the Appellant’s company. He was doing business with the Respondent and would make payments after taking possession of the goods and after delivery notes, purchase orders and invoices were supplied for verification by himself.

9.     He denied collecting goods on credit and making payment later as alleged. He further denied that they fell short of any deadlines or making any payments as alleged by the Respondent.

10.   He further denied acknowledging debts in the year 2018 and stated that he has not seen any evidence of the said acknowledgement as alleged. According to him he issued cheques on condition that the Respondent would wait a while before presenting them to the bank.

11. He requested to be supplied with evidence of supply of the alleged goods including signed delivery notes, purchase orders and invoices signed by himself and his co-director to enable him to verify the stated amount but the Respondent failed to furnish the said evidence of supply.

12.  He cancelled the said cheques. According to him no purchase can be made without the said requested documents. On 8th February, 2021 he received a demand letter from the Respondent and on 11th February, 2020 he requested again to be supplied with the said evidence in form of the local purchase orders, delivery notes and invoices. He stated that up to date the said delivery notes and local purchase orders had not been supplied.

14.  The Appellant stated that the invoices that the Respondent filed in court are not signed by the person who received the said goods. Further that the some of the invoices which are purportedly signed are not signed by himself or his co-director and they do not show the value of the purported goods supplied and in fact they are blank. He stated that at times he used to send his driver who was given delivery notes and invoices. If goods were delivered his attendant would sign. If the driver was taking goods, the driver would sign. He confirmed that motor vehicle KBT 594 was the Appellant’s truck which was driven by Mr. Mutinda. He used to send orders through WhatsApp. The Respondent ought to have availed the orders. He confirmed the ID number and signature that appeared on the Respondent’s documents at page 28, 29 belonged to his named driver but the signature at page 30 was dispute although the ID was for his driver. The driver used to sign for the invoices. He could not confirm if his driver signed the invoice. He did not know who prepared the invoices.

1. Parties were then directed to file submissions and they both complied. Upon considering the pleadings, the evidence and the Parties submissions, the trial magistrate on 20/4/2023 entered judgement in favour of the Respondent for Kshs.3,800,000/= plus costs and interest.
2. Being dissatisfied by the said decision, the Appellant lodged the instant appeal vide a Memorandum of Appeal dated 24/4/2023 in which it has raised 16 grounds of appeal based on the ground that the learned magistrate erred in law and fact:
3. In finding that the Plaintiff has been able to proof that the defendant ordered and received good from him and issued invoices to the Defendant exhibit 4 and upon receipt of the goods the defendant issued dishonoured cheques exhibit 5 despite that the invoices were not signed by Defendant and others were blank and no evidence of the said dishonoured cheques was presented before the court.
4. In relying on exhibit No.4 invoices which were blank and others were not signed and failed to find that they had no evidential value given that invoices at pages 22, 23, 24, 25,26,27, 35,36,37,38 and 39 of the Plaintiff list of documents were not signed and they did not show the person who receive purported goods.
5. In failing to find that the Plaintiff did not produce any invoice showing the amount supplied, signed and showing to whom the supply was delivered to as exhibit 4 which are invoices cannot proof any goods supplied to the Defendant worthy the amount being claimed.
6. In failing to find that invoices at page 28,29, 41, 42, 43, 44, 45, 46, 30,31,32,33 and 34 of the Plaintiff list of documents are blank as they do not show the unit price, quantity, description, packing and net amount of whatever the Plaintiff is alleging to have supplied and the said invoices does not constitute enough evidence of proof of supply.
7. In finding that the issuance of cheques to the Plaintiff by the Defendant is a clear confirmation that he ordered and received goods amounting to Kshs. 3,800,000/= despite that there was no evidence of the said supply.
8. In failing to find that the Plaintiff admitted in his evidence that the said postdated cheques were not part of the ledger account as they are not included as payments made by the Defendant of the existing debt and cannot be proof of the said supply.
9. In failing to consider the circumstances under which the Defendant cancelled the said cheques when the Plaintiff failed to prove supply of the said goods and that they were not dishonoured as after cancellation they were never presented to the Bank.
10. In finding that there is no evidence that the Plaintiff and the Defendant issued local purchase orders and delivery notes in the entire course of their business and that the demand by the Defendant for the Plaintiff to produce delivery notes and Local Purchase Orders to proof delivery is baseless and unreasonable despite that the Plaintiff in cross examination admitted the said documents were part of their transactions and invoices were treated as delivery note.
11. In failing to find that postdated cheques were issued on conditions that evidence of supply was to be given before they were banked.
12. In finding it is common ground that the defendant issued the Plaintiff with postdated cheques once he received goods and it is untrue that the Defendant cancelled the cheques since there was no delivery despite evidence from the Defendant that was the reason of cancellation.
13. In finding there is no written communication from the defendant to the Plaintiff indicating that he cancelled the cheques for non-delivery of goods despite that the Defendant in his evidence explained that he communicated to the Plaintiff by phone and raised the issue of non-delivery with the Plaintiff and instructed cheques not to be banked and Plaintiff complied.
14. In finding that the Appellant took goods on credit and accrued a debt amounting to Kshs.3,800,000 when there was no evidence presented to proof the same.
15. In finding on a balance of probability the Plaintiff has been able to proof that he supplied goods amounting to Kshs.3,800,000/= and relied on invoices and cheques exhibit 4 and 5 when they were of no evidential value. 4
16. In finding that judgment be entered in favour of the Plaintiff against the Defendant for payment of Kshs.3,800,000/= and interest and cost despite that there was no proof of supply of the said goods.
17. In failing to assess the overwhelming evidence, submissions and pleadings presented by and for the Appellant.
18. That the decision of the said Magistrate was against the weight of the evidence adduced.
19. The Appellant prays that:

a)  The appeal be allowed.

b) The Judgment and orders of the subordinate court be reversed and the and the Appellant suit before the subordinate court be dismissed for lack of evidence of supply of purported goods worthy Kshs.3,800,000/= .

c)   The costs of this appeal be awarded to the Appellant.

d)  Any further or other relief as justice of the case may require to be granted in the circumstances.

1. The appeal was canvassed through written submissions. The Appellant’s submissions are dated 21/6/2024 whilst the Respondent’s submissions are dated 30/9/2024.

Appellant's submissions

1. The Appellant submitted on ground 1-4 jointly that the Respondent’s allegations before the court demanding payment of Kshs.3,800,000/= was not supported by evidence to proof that the Respondent supplied the purported goods to the Appellant which he was demanding to be paid, no evidence was adduced to support the said supply. The invoices availed before the court are blank and others are not signed by whoever received the purported goods.
2. In an attempt to prove the claim, the Respondent produced bundle of invoices as exhibit No. 4 at page 16 of the record of appeal. The said invoices were not signed and do not show to whom the purported goods were delivered, the invoices at page 34, 35, 36, 37, 38, 39, 40, 54, 55,56 and 57 of the record of appeal are not signed and do not show to whom the purported goods were supplied to. The invoices at pages 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 and 53 of the record of appeal are blank and do not show the unit price and net amount of whatever was being demanded for payment. The said invoices are attached to the Respondent’s list of documents dated 26/11/2011 at page 16-121 of the record of appeal.
3. The Appellant in his evidence testified that he requested to be supplied with delivery notes, purchase orders and invoices signed by the Appellant and/or its directors to confirm the purported supply the same was not done. He referred to the witness statement adopted by the Appellant at page 127 -128 of the record of appeal, he also referred to the demand letter produced as exhibit 1 by the Appellant at page 131 of the record of appeal which demanded the said delivery notes and local purchase orders none was supplied and since the Respondent was demanding for goods delivered and not paid for and since the Appellant denied receipt of the alleged goods and the sum claimed by the Respondent to be not payable the Respondent had a duty to prove that the goods were delivered and received by the Appellant. Such delivery would have been proved by way of delivery notes which would show the goods delivered and received. No such delivery notes were shown by the Respondent and the Appellant submitted that there was no evidence to show that the goods were received and signed by the Appellant. The invoices which are not signed and others blank cannot be proof of delivery and receipt of the goods but rather a demand for payment of goods allegedly delivered and the Appellant could not comply with the said invoices since there was no delivery notes and could not pay on unsigned invoices and blank.
4. In cross examination PW1 who was director of the Respondent company one Hirani Jayanipilah Hivai testified that there was LPO (Local Purchase Orders) from customer and that there were delivery notes. He admitted the invoices don’t have net amount owed. He also admitted they were not signed by the person who received the goods. He admitted invoices at page 41-46 of his list of documents do not show net amount. Therefore, the Appellant submitted that there were no any delivery notes produced to show supply of goods. There were no any purchase orders produced and the invoices are blank and unsigned therefore there is no evidence of supply of goods and it was wrong for the trial court to find that the Appellant ordered and received goods and issued invoices to the Respondent.
5. It was therefore the burden of the Respondent to prove that indeed the Appellant owe him the alleged sum. Such delivery would ordinarily be proved by way of a delivery note which would show the goods delivered and received. The Respondent herein did not show any such delivery note. It is therefore not shown by way of evidence who received and signed for the goods. An invoice on the other hand, is not proof of delivery and receipt of goods, but rather a demand for payment for goods alleged to have been delivered. This means that an invoice comes at the tail end of the transaction. It is raised after the goods have been delivered and received and it is time for payment for the same. The Respondent herein only exhibited the invoices which are blank and not signed in its claim for payment. No delivery note for the goods have been shown.
6. The Appellant submitted that as the supplier and party to these contracts, these documents must have been retained by Respondent for every supply and failure to produce or show them can only dent the claim of the Respondent that the goods were delivered and received. And showing the invoices alone, which only are proof of demand for payment, cannot in anyway null the void left by failure to exhibit the relevant LPO’s and Delivery notes. The Appellant relied on the case of Pramukh Cash and Carry Limited v Charles Ojwang Milamba t/a Milamba Stores (Civil Appeal E053 of 2022) [2024] KEHC 1340 (KLR) (15 February 2024) (Judgment) where the court held that:

“This is basically is the evidence that was tendered by the 2 parties before the trial court. The Evidence Act, Cap 80, gives guidance on the issue of the burden of proof. Section 107 of the Act provides;

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 exists.

2. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

And at Section 108 of the Act provides; “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.”

24. And finally, Section 109 of the Act, provides; “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 lies on any particular person.”

25. In this case, it is the plaintiff who claims a sum of Kshs.951,605/= being a sum unpaid for goods delivered by the Plaintiff (Appellant) to the Respondent. It is therefore the burden of the Plaintiff to prove that indeed the Respondent owe him the alleged sum. And the standard of proof required of the appellant is that of on a balance of probabilities.

26. Obviously, these 2 parties had a long-standing contract of supply. This contract seems to have worked well between the parties until this issue came up. The Plaintiff/appellant demands payment for goods delivered and not paid for. The Plaintiff, case is based on 2 signed invoices as proof that the said goods were 7 delivered and received by the Respondent. The Respondent, on the other hand, denies receipt on the alleged goods and that the sum claimed by the Respondent is not payable.

27. Being a contract of supply of goods or stand foremost, it is incumbent upon the appellant to prove that the goods were delivered and received by the Respondent. Such delivery would ordinarily be proved by way of a delivery note which would show the goods delivered and received. The appellant herein has not shown any such delivery note. It is therefore not shown by way of evidence who received and signed for the goods.

28. An invoice on the other hand, is not proof of delivery and receipt of goods, but rather a demand for payment for goods alleged to have been delivered. This means that an invoice comes at the tail end of the transaction.

29. It is raised after the goods have been delivered and received and it is time for payment for the same. The appellant herein has only exhibited the 2 invoices in its claim for payment. No delivery note for the goods have been shown. The witness of the appellant (PW2) who claims to have been the one who delivered the goods to the Defendant/Respondent also gave rather incoherent evidence. In his evidence in chief, he stated that he delivered the goods to the Defendant and left the customer with his copy. He makes no mention of his own copy of the delivery note. He even states that the customer signed for the goods. He however shows no evidence of the same. He goes onto say that even for the invoice, he was not present when the same was signed. His story changed to saying that a lady took the invoice and signed the same and that a signed invoice was handed over to him.

30. The Hon. Justice F. Gikonyo, faced with a similar situation in the case of E.P. Communications Ltd - Vs- East Africa Courier Services Ltd [2019] eKLR, and quoting from Alfred Ndogi Mata -Vs- Hellen Siemeko Adede [2005] eKLR cited by the Respondent, observed; “The evidence show that a business relationship existed between the parties herein. There is also evidence that, goods were supplied to the Respondent during the business relationship on credit. However, 2 issues abound. Were the goods alleged to have been supplied actually supplied and received? And for the goods supplied and delivered, were they paid for by the Respondent? 5 The appellant produced invoices, LPOs and delivery notes. The purpose of an invoice is that it is issued by a seller to request for payment for purchase. An LPO is sent by Purchaser to the Seller to confirm, order and authorize the purchase. A delivery note is proof of delivery of goods……”

31. I align myself absolutely with the above finding. In a contract of supply such as this, the appellant, being the supplier ought to have produced the relevant LPO’s 8 (evidence of PW1) to confirm the order made by the Respondent. He ought to have also shown the delivery notes to show the actual goods delivered. He exhibited neither of these in evidence and also gave no explanation on the failure to do so. As the supplier and party to these contracts, these documents must have been retained by him for every supply and failure to produce or show them can only dent the claim of the appellant that the goods were delivered and received. And showing the invoices alone, which only are proof of demand for payment, cannot in anyway null the void left by failure to exhibit the relevant LPO’s and Delivery notes”.

1. The Appellant therefore prayed that the court does find that it was an error for the trial court to find goods were supplied and received without delivery notes and local purchase orders and the legal burden of proof was not discharged by way of evidence as it is principal of law that whoever raised a claim before the court against another has the burden to proof it. They relied on the case of Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh (2021) eKLR were H.I Ongundi J held that:

“it is a principle of law that whoever lays a claim before the court against another has the burden to prove it. Sections 107 and 108 of the Evidence Act provide as follows: 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. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. 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.”. I rely on the case of Muriungi Kanoru Jeremiah vs Stephen Ungu M’mwarabua [2015] eKLR where the court held as follows with regard to the burden of proof: “....As I have already stated, in law, the burden of proving the claim was the appellant’s including the allegation that the respondent did not pay the sum claimed as agreed; i.e. into the account provided.....The trial magistrate was absolutely correct in so holding and did not shift any legal burden to the appellant.....The appellant was obliged in law to prove that allegation; after the legal adage that he who asserts or alleges must prove.... In the circumstances of this case, the respondent bore no burden of proof whatsoever in relation to the debt claimed. By way of speaking, the shifting of burden of proof would have arisen had the trial court magistrate held that the respondent bore burden to prove that he deposited the sum of Kshs.98,200/= the debt being claimed herein.”. I also refer to The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus: “The legal burden is the burden of proof 9 which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.” The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence" .

1. The Appellant reiterated their earlier submission that since the invoices were not signed and others were blank the trial court erred in law in relying on the same to find that goods were supplied in fact an invoice is not evidence of supply of goods. It is not proof of delivery and receipt of goods but rather is a demand of payment for goods allegedly delivered and since the same were not signed and other were blank they had no evidential value. There was need to proof supply before the invoices were complied with by the Appellant. Therefore, the court erred in relying on exhibit No. 4 the invoices and we pray the court to find as such.
2. The Appellant further reiterated their earlier submission that since the invoices did not show the amount supplied and received, they cannot be proof of delivery and the court erred in relying on the same.
3. Secondly, the Appellant submitted on ground No. 5, 6 and 7 jointly that in this matter the trial court also relied on issuance of postdated cheques to the Plaintiff by the appellant as confirmation that goods were ordered and received this was error because the parties explained under which circumstance the cheques were issued and cancelled. The defendant in his evidence relied on witness statement where he testified that although he had issued postdated cheques after being served with a demand letter he requested for documentations and delivery notes. They referred the court to page 187 and 188 of the record of appeal. It was his evidence that he was not supplied with the said LPOs (Local Purchase Orders), delivery notes to confirm delivery of goods since invoices were not signed by anybody. It was his evidence that cheques were to be banked after goods are supplied and he cancelled the cheques since there was no delivery. This was confirmed by the Respondent. In cross examination that the cheques at page 47-49 of his list of documents were not banked as the Appellant stopped them and he did not post the cheques in the ledger account because they were not cashed. Therefore, it was wrong for the trial court to rely on the said cheques as proof of supply. He did not consider the evidence of the parties that postdated cheques were to be banked after supply and since there was no supply the Appellant stopped the said cheques therefore it was wrong for the court to rely on the said cheques as confirmation of supply. Also, it was wrong for the trial court failure to find that since the cheques were not included in the ledger account as payment made by the Appellant of the existing debt, they cannot be proof of supply.
4. The Appellant also prayed that the court does find that the trial court erred in failing to examine circumstances under which the Appellant cancelled the said cheques when the Respondent failed to prove supply of the demanded goods and he could not have banked the cheques before supply is done. They submitted that the said cheques were not dishonoured as they were not banked and they cannot be proof of supply. Once a cheque is dishonoured it is when the Plaintiff can rely on it. In this matter the cheques were not banked and the Respondent cannot rely on them to proof supply. They were stopped because there was no supply as confirmed by the Defendant in the cross examination that he gave the Respondent postdated cheques to await verification it was a blank cheque without a figure and he stopped cheque payments. Therefore, it was wrong for the trial court to find that the cheques were dishonoured at paragraph 25 of the judgment at page 197 and since there is no dishonoured cheques the Respondent cannot rely of the cheques to claim the amount. The cheques only become dishonoured after presentation for payment and payment is refused by the bank. The Respondent admitted in his evidence the cheques were not banked at page 186 of the record of appeal and they cannot be dishonoured if they were not banked. They relied on the case of Fredrick Owino t/a Cool & Smartech Agencies v Board of Management Kamuriai Sec. School [2021] eKLR where the court held that:

“Upon supply of the goods, the appellant was issued with 2 postdated cheques which ultimately bounced. The respondent contends these cheques were a forgery. No evidence however was adduced in this regard. Section 47(1) (a) of the Bills of Exchange Act provides: “A bill is dishonoured by non-payment: - (a) when it is duly presented for payment and payment is refused or cannot be obtained. Sub-section (2) thereof provides: - “Subject to the provisions of this Act, when a bill is dishonoured by non-payment, an immediate right of recourse against the drawer and endorsers accrues to the holder.” The case of Hassanali Issa & Co v Jeraj Produce Store [1967] 1 EA 555, while discussing the issue of a bounced cheque, the Court of Appeal for East Africa held; The position is therefore that where there is a suit on a cheque and the cheque was admittedly been given the onus is on the defendant to show circumstances which disentitle the plaintiff to a judgment to which otherwise he would be entitled.’ This position was affirmed in Paresh Bhimsi Bhatia –vs- Mrs Nita Jayesh Pattni CA Civil Appeal No. 199 of 2003 (Nairobi) (unreported); “A cheque is a bill of exchange drawn on a bank payable on demand (see Section 73(1) of the Bill of Exchange Act, Cap 27). By Section 55(1) the drawer of a bill by drawing it, engages, inter alia, that on due presentation, it shall be presented and paid according to its tenor and that if it is dishonoured, he will compensate the holder or a subsequent endorser who is compelled to pay it so long as the requisite proceedings for dishonour be duly taken”.

1. The Appellant therefore prayed that the court does find that the trial court erred in relying on stopped cheques to find that goods were supplied. The circumstances of the stoppage were well explained and the Respondent had a duty to prove supply of goods as was held in the case of Fredrick Owino t/a Cool & Smartech Agencies v Board of Management Kamuriai Sec. School [2021] eKLR as to whether there was supply of goods and services rendered by the Appellant. In trying to establish that he actually supplied goods and rendered services to the respondent, the appellant produced a local purchase order (LPO) prepared by the respondent’s bursar and approved by the Principal Masika Isaac, delivery notes and the invoices duly prepared and received by the respondent. From these documents produced the respondent states that the same were a forgery, the appellant was not awarded any tender for the supply of the goods he allegedly supplied. The other contention is that the principal who received the goods did not have the authority to receive since the proper person was the store keeper. Reliance was also placed on the failure by the appellant or his agent to sign on the visitors’ books at the gate and at the principal’s office demonstrates that the goods were not delivered. The court has had chance to look at the LPO’s dated 1/12/2014 and 3/12/2014 prepared by the school bursar. This is the genesis to the impugned transaction. I also note that the allegation by the respondent that these documents were a forgery does not hold water. Neither the maker nor the said Masika Isaac who allegedly prepared and approved the documents were ever called to confirm whether they prepared the document or not. In arriving at the conclusion, the court is guided by the provisions of Section 107(1) of the Evidence Act, which provides; 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. In the same vein, Sections 109 and 112 of the Evidence Act provide; 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. 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.
2. Thirdly the Appellant argued ground No. 8 on whether the court erred in finding that there is no evidence that the Respondent and the Appellant issued local purchase orders and delivery notes in the entire course of their business and that the demand by the Appellant for the Respondent to produce delivery notes and local purchase orders to proof delivery is baseless and unreasonable despite that the Respondent in cross examination admitted the said documents were part of their transactions and invoices were treated as delivery note. This was an error since the Respondent in his evidence in cross examination at page 185 of the record of appeal admitted that there must be Local Purchaser Orders from customer and that there must be delivery note so demand by the Appellant for the said purchase orders and delivery notes was not baseless and unreasonable as they were there as admitted by the Respondent and it was wrong for the court to reach to such a finding. The Appellant prayed that this court does overturn it as the Respondent had a duty to supply the same and/or produce them in court upon demand by the Appellant as proof of supply before the payment was done.
3. Fourthly, the Appellant argued ground 9, 10 and 11 jointly on whether the court erred in failing to find that postdated cheques were issued on conditions that evidence of supply was to be given before they were banked. In finding it is common ground that the Appellant issued the Respondent with postdated cheques once he receives goods and it is untrue that the Appellant cancelled the cheques since there was no delivery despite evidence from the Appellant that was the reason of cancellation. In finding there is no written communication from the Appellant to the Respondent indicating that he cancelled the cheques for non-delivery of goods despite that the Appellant in his evidence explained that he communicated to the Respondent by phone and raised the issue of non delivery with the Respondent and instructed cheques not to be banked and Respondent complied.
4. That the evidence of the Respondent is very clear that in re-examination that after the Appellant makes the orders and he wrote postdated cheques meaning the postdated cheques were given before supply. That this was confirmed by the Appellant that they dealt on postdated cheques and were to be deposited once goods are delivered at page 188 of the record of appeal. He cancelled the cheques as there was no delivery. Therefore, it was wrong for the trial court not to reach this finding despite parties producing evidence on the same. The Appellant at page 189 of the record of appeal testified that he gave the Respondent postdated cheques to await verification. They were blank cheques without a figure and he stopped payment once he did not receive the goods therefore it was wrong for the trial court not to reach that finding and despite this evidence the court reached a finding at paragraph 30 of the judgment at page 197 of the record of appeal that the Appellant issued the Respondent with a postdated cheques once he received goods. This was wrong as the evidence is contrary to the evidence. Further the evidence of the Appellant is clear that there was communication as to the cancellation to the cheques. That at page 189 of the record of appeal the Defendant testified he spoke on phone to demand for documentation and also, he used his email info@mwanzompya.com to communicate stoppage of the cheques payment therefore it was in error for the trial court to find that there was no communication from the defendant to the Plaintiff that he cancelled the cheques for non-delivery of goods. Also, the demand letter issued and produced as Defendant exhibit is very clear that there was communication as to the stoppage of the cheques was due to non-delivery. We pray the court to find that the defendant explained circumstances under which he cancelled the cheques and the cheques should not have been used as proof of supply of goods by the trial court and we pray the court to overturn such finding.
5. Fifthly, the Appellant argued ground No. 12-16 jointly in finding that the Appellant took goods on credit and accrued a debt amounting to Kshs.3,800,000 when there was no evidence presented to proof the same. In finding on a balance of probability the Plaintiff had been able to proof that he supplied goods amounting to Kshs.3,800,000/= and relied on invoices and cheques exhibit 4 and 5 when they were of no evidential value. In finding that judgment be entered in favour of the Respondent against the Appellant for payment of Kshs.3,800,000/= and interest and cost despite that there was no proof of supply of the said goods. In failing to assess the overwhelming evidence, submissions and pleadings presented by and for the Appellant. That the decision of the said Magistrate was against the weight of the evidence adduced. The court erred in reaching to a finding that goods were supplied without evidence. Also erred in relying on postdated cheques not presented for payment to proof supply of goods. The Plaintiff had a duty to proof supply of the goods. The Plaintiff had the burden of proof. They relied on the case of Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh (2021) eKLR were H.I Ongundi J further relied the case of Kenya pipeline company Ltd v Corporate Business Forms (2019) eKLR Lady Justice Mary Kasango in a similar matter stated, [22]

“The Plaintiff, particularly through the report presented by PWC, clearly demonstrated, on a balance of probability, that the duty was either not paid or under paid by the Defendant. What other conclusion can one reach when the Plaintiff, through the evidence of PWC, stated that some import entry numbers used in respect to clearance of some consignments of the Plaintiff related to clearance of good of other third parties. Further there are correspondence by National Bank of Kenya which confirm that some of the banking slips, presented by the Defendant, bore stamp or banking staff signature which were different to those being used by the bank. When PWC’s report revealed those irregularities in the clearance of the Plaintiff’s goods the Defendant had an evidential burden to shift in order to prove the banking slips were genuine and that indeed the taxes were paid. The court of appeal in the case Mbuthia Macharia v Annah Mutua & Another [2017] eKLR (supra) discussed the burden of proof. and stated thus:

“The legal burden is discharged by way of evidence, with the opposing party having a 15 corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence" In this case, the incidence of both the legal and evidential burden was with the appellant.” [23] “The Defendant was the one who supplied the documents to the Plaintiff representing payment to KRA. The Defendant therefore bore the evidential burden of proof to prove that that payment was indeed made to KRA. The Defendant failed to shift that burden of proof.”

1. The Appellant submitted that in this matter the Respondent produced invoices to proof supply and that the invoices at page 22, 23, 24, 25, 26, 27, 35, 36, 37, 38 and 39 of the Respondent list of documents are not signed and they do not show the person to whom the purported goods were supplied. The Respondent did not produce any delivery notes, purchase orders or invoices showing the amount supplied, signed and showing to whom the supply was delivered to. The aforesaid invoices cannot proof any goods were supplied to the Appellant worthy the amount entered in the judgment. Further the Respondent produced invoices at pages 28, 29, 41, 42, 43, 44, 45, 46, 30, 31, 32, 33 and 34 of the Respondent’s list of documents to proof the said supply but the said invoices are blank as they do not show the unit price, quantity, description, packing and net amount of whatever the Respondent is alleging to have supplied. Further invoices are not proof of supply. The Respondent was to supply goods and the Appellant was to pay for the supply and this court to determine who owes who what the Respondent ought to avail evidence to proof that he supplied goods to the Appellant. The tendered in evidence of invoices is not enough to proof supply. The Respondent also tendered in evidence a statement of account as evidence of the debt owed to the Appellant. In the said statement of account. The Respondent has listed invoices not paid. We humbly submit the invoices which the Respondent is claiming unpaid in the statement of account/ledger account are the same invoices which are not signed and which are blank. At page 15 of the Respondent list of documents (page 27 of the record of appeal) the Respondent has listed invoices dated 2/8/2018 invoices No. 5235, 5236, 5237, 5238, and 5239 which he claims are not paid. The same invoices are at page 22, 23, and 24 of the Respondent bundle of documents (page 34,35,36 of the record of appeal) and the same are not signed and do not show to whom goods were delivered to. Further at page 15 of the bundle the Respondent has also listed invoices dated 10/8/2018 as unpaid invoices No. 5315, 5316, 5317 and 5318. These invoices are at page 25 and 26 of the bundle, the same are not signed they did not show to whom goods were supplied to (page 36-37 of the record of appeal). Further the Respondent at page 15 and 16 of the bundle has listed invoices dated 17/8/2018 as unpaid which are invoices No. 5289, 5390, 5391, 5392 and 5393. The same invoices are at page 27 and 35 of the bundle which are not signed and do show to who the said goods were supplied. The other invoices dated 10/8/2018 are at page 28 and 29 of the bundle but they are blank. The other invoices dated 17/8/2018 are at page 41, 42 and 43 16 are blank and do not show whatever was supplied. Therefore, they submit the said statement of account has been prepared using the said invoices which are blank and are not signed by the person who purportedly received the said goods and is not enough evidence of the debt owed by the Appellant. They had a duty to produce delivery notes and Local purchase orders to proof supply and the ledger account cannot be used to proof the said supply without the said delivery note. The Respondent also produced postdated cheques but, in his evidence, he admitted that the said cheques are not part of the ledger account as they are not included as payments made by the Appellant of the existing debt and therefore, they are not evidence to proof the said supply. The Appellant explained circumstances under which he cancelled the said cheques as once the Respondent failed to prove supply and he cancelled the said cheques and they cannot be a basis of proof of supply. Further the Plaintiff produced emails at page 50, 51, 52, 53, 54, 55, 56, and 57 of the Plaintiff bundle but the said emails do not show that the Appellant admitted any supply. There is no email from the Appellant showing he admitted any supply and therefore the same cannot be a proof of supply. Further the Respondent produced VAT withholding certificates at page 58, up to 108. The said withholding certificates did not show any amount of goods supplied. The Appellant explained the withholding certificates are for already delivered goods he is claiming to be paid. Further tax compliance certificates are issued where KRA was satisfied that there are no liabilities on one`s account and cannot be a proof of supply of goods by the Respondent as KRA has a right of withdrawal of certificates if new evidence materially alters tax compliance status of the recipient. They relied on the case of Interactive gaming & Lotteries Limited v Flint East Africa Limited & 2 others (2014) eKLR and Republic vs. Kenya Revenue Authority & another ex parte Tradewise Agencies (2012) eKLR where the court held that

“ Although the Respondent contends that a person who complies with the provisions of the Seventh Schedule paragraph 7 is eligible for a Tax Compliance Certificate because the said person has filed tax returns and paid what he has assessed himself as due to the commissioner and that a Tax Compliance Certificate does not mean that a person`s accounts are perfect or beyond reproach and only an audit conducted by the First Respondent can certify accounts to be beyond reproach for tax purposes the same certificates indicate that the authority reserves the right to withdraw the certificate if new evidence materially alters the tax compliance status of the recipient. Why would the certificate be withdrawn if it is not evidence of compliance” If it is only evidence of submission of remission of taxes in which event it is not binding on the authority there would be reason for it to be withdrawn by the authority. The only conclusion one would draw is that the certificate is prima facie evidence of compliance and until withdrawn the same is proof of fulfillment of the obligation to pay 17 taxes……Whereas this court cannot hold that the Applicant was not obliged to pay any taxes, the 1st respondent was expected to notify the Applicant of any discovery of new evidence which was likely to materially alter the Applicant`s tax compliance status and hear the Applicant`s side of the story before taking an action which was contrary to its earlier conduct.” The Appellant’s defence has been the claim by the Plaintiff is for payment of nondelivered goods and is a false claim. The burden of proof did not shift to the Appellant we rely in the case of Zingo Investments Limited v Kenya Syntans & Chemicals Limited (2019) eKLR were the court of appeal held that the matter is one of a simple nature between parties who had entered into an oral agreement where one was to supply chemicals and the other was to pay for the supplies. There was no written agreement that raises the issue of interpretation of clauses. What the lower courts were charged with was essentially to determine who owes who what. In this case section 107 of the Evidence Act on the burden of proof was the guiding principle; (1) Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. We are further persuaded by the holding of this court in MBUTHIA MACHARIA V ANNAH MUTUA NDWIGA & ANOTHER (2017) eKLR, “ The legal burden is discharged by was of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burden initially rested upon the Appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who fail without further evidence.” From the record we note that the respondent filed suit and tendered in evidence the invoices and a statement of accounts as evidence of the debt owed to it by the Respondent. The Respondent subsequently amended its defence and introduced the counterclaim that contained the claim based on the four postdated cheques as evidence of overpayment. This prompted the Respondent to tender further evidence in its replying affidavit sworn by J.V Shah and dated 17th October 2008 which attached a ledger account statement for the Appellant. It detailed the payments made by the Appellant on various dates including ones made by the post-dated cheques as payment that was credited to clear an already existing debt. According to the said statement of account that still left a deficit of Kshs.1,659,682. The burden of proof then shifted to the Appellant who failed to prove the alleged non-delivery of goods already paid for or disapprove the evidence tendered by the respondent that the post-dated cheques were not utilized as payment of an already existing debt. Therefore, we find that the lower court correctly applied the evidence and arrived at a legal and logical conclusion. We find that the High Court did not err in endorsing the said findings.

1. Lastly, the Appellant submitted that the trial court did not consider their submissions at page 140-149 of the record of appeal that there was no evidence of supply.

Respondent’s Submissions

1. The Respondent submitted that the learned magistrate correctly applied the law and considered all the evidence before arriving at the decision on a balance of probabilities. That the grounds of appeal and the submissions filed on behalf of the Appellant are, respectfully long on the tale and short on the facts and legal basis. The Respondent urged this Honourable Court to uphold the lower court's judgment.
2. In so submitting, the Respondent stated that the trial court carefully evaluated the evidence presented by both parties and made a finding based on a balance of probabilities, as required in civil claims. upon the appellant laying out its case before the court, the Appellant did not discharge the burden of disproving that goods were supplied by the Respondent and that the Respondent owed the Appellant the amount claimed. The principal issue before the court was the Appellant's failure to settle the outstanding debt for those goods, amounting to Kshs.3,800,000/ =. The Appellant's attempts to dispute liability by raising issues of unsigned or blank invoices are unfounded for the following reasons that it is not in dispute that there was a contractual relationship between the parties, and goods were supplied. The presence of unsigned or blank invoices does not negate the Appellant's obligation to pay for the goods delivered. In civil matters, the burden of proof is on a balance of probabilities, and the Respondent produced sufficient documentation demonstrating that the goods were delivered and accepted by the Appellant.
3. That the Appellant had the opportunity to adduce evidence that the unsigned or blank invoices were fraudulent or issued in error. However, the Appellant failed to discharge this burden. The lower court rightly found that the mere presence of unsigned invoices, in the absence of credible evidence to suggest otherwise, does not negate the Appellant's liability.
4. The trial court correctly found that post-dated cheques were issued by the Appellant. These cheques served as further acknowledgment of the Appellant's indebtedness. The Appellant has now raised the issue that the court did not sufficiently appreciate the circumstances under which these cheques were issued. That post-dated cheques by their very nature, are commonly issued as  >> ></><><>"></><><>></><><>" >></><><>>>, ></><><>"></><><><>>></><><>"></><><>>> ></><><>" ></><><>< >></><><>></><><>“></><><>>>< ><>> ></><><>"> <>></><><>>> ></><><>"></><><>></><><>"></><><>></><><>></><><>> ></> (></><><>"></><><>>> ></><><>"></><><> </></><><>>>, ></><><>"></><><>><><>></><>) (></><><>"></><><>></><><>></><><>></><><>>> >></><>>>, ></><><>></><><>> > (></><>“<>>< href>Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden … is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
   1. The question then is what amounts to proof on a balance of probabilities? Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526526 stated that:

   “In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

   1. Further in the case of Palace Investment Ltd vs. Geofrey Kariuki Mwenda & Another (2015) eKLR, the judges of Court of Appeal observed as follows: -

   “Denning J. in Miller Vs Minister of Pensions (1947) 2 ALL ER   372 discussing the burden of proof had this to say: -

   “That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability is equal, it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

   The burden of proof at all times lies with the Plaintiff/Claimant to prove the case and not the Defendant/Respondent.

   1. In the instant case, the trial Magistrate in his judgment found that the Respondent had proved his case on a balance of probability that he supplied goods amounting to Kshs.3,800,000/= to the Defendant. He Produced the invoices and the cheques as exhibit No.4 and 5 respectively.
   2. In its judgment the trial court framed the main issue for determination on whether the Respondent/Plaintiff and Appellant/Defendant had a business relationship in which the Appellant/Defendant accrued a debt amounting to Kshs.3,800,000/=.
   3. The trial magistrate observed that he had considered the evidence on record and found that the Respondent and the Appellant were engaged in business where the Appellant bought building materials from the Respondent. A fact that was alluded to by both Parties. The trial court further found that upon receipt of the goods the Appellant issued cheques No. 001937, 001959, 001966, 001936, 001960 and 001967 amounting to Kshs.3,800,000/= which were dishonoured reference to exhibit No.5.
   4. The issuance of the cheques to the Respondent by the Appellant is a clear confirmation that he ordered and received goods amounting to Kshs.3,800,000/=. The Respondent and Appellant confirmed that they worked for a period of three years from 2016 to 2019. The Appellant would make an order, collect goods and invoice, thereafter he would issue the Respondent with postdated cheques.
   5. There was no evidence that the Respondent and the Appellant issued Local Purchase Orders and Delivery notes in the entire course of their business. The Demand made by the Appellant for the Respondent to produce delivery notes and Local Purchase Orders to prove delivery is baseless and unreasonable. The Appellant himself did not produce such documents yet he confirmed to have received several goods from the Respondent.

   62. The trial court asked itself, why would the Appellant issue postdated cheques amounting to Kshs.3,800,000/= to the Respondent? The Appellant correctly answered the above question in his examination in chief and the trial court quoted thus:

   “I know the Plaintiff. We worked together from 2016c-2018. He supplied me with steel metals. Once the goods were delivered, we issued him with postdated cheques"

   1. From the above, it is common ground that the Appellant issued the Respondent with a postdated cheques once he received the goods. It is untrue that the Appellant cancelled the cheques since there was no delivery.
   2. The trial Magistrate further stated that he had carefully analysed the cheques and noted that they were issued on diverse dates in the month of September 2018. There is no written communication from the Appellant to the Respondent indicating that he cancelled the cheques for non-delivery of the goods. If indeed no goods were supplied during the said period, the Appellant would have raised the issue with the Respondent immediately.
   3. This court notes that the Appellant stated that he requested to be supplied with evidence of supply of the alleged goods including signed delivery notes, purchase orders and invoices signed by himself and his co-director to enable him to verify the stated amount but the Respondent failed to furnish the said evidence of supply.
   4. The Appellant contends that he cancelled the cheques he had issued to the Respondent when the Respondent failed to supply the goods. According to the Appellant no purchase can be made without the said requested documents. On 8th February, 2021 he received a demand letter from the Respondent and on 11th February, 2020 he requested again to be supplied with the said evidence inform of the local purchase order, delivery notes and invoices. He stated that up to date the said delivery notes and local purchase orders had not been supplied.
   5. The Appellant stated that the invoices that the Respondent filed in court are not signed by the person who received the said goods. Further that the some of the invoices which are purportedly signed are not signed by himself or his co-director and they do not show the value of the purported goods supplied and in fact they are blank.
   6. The Appellant stated that at times he used to send his driver who was given delivery notes and invoices. That if goods were delivered his attendant would sign. If the driver was taking goods, the driver would sign. He confirmed that motor vehicle KBT 594 was the Appellant’s truck which was driven by Mr. Mutinda. He used to send orders through WhatsApp. The Respondent ought to have availed the orders. He confirmed the ID number and signature that appeared on the Respondent’s documents at page 28, 29 belonged to his named driver but the signature at page 30 was dispute although the ID was for his driver. The driver used to sign for the invoices. He could not confirm if his driver signed the invoice. He did not know who prepared the invoices.
   7. On the foregoing, this court has established from the record that the Appellant did not at all attempt to disapprove or counter the Respondent by filing any such available documents that were used in previous transactions between them and or endeavour to bring his said driver and attendant to support his defence.
   8. Again, although the Appellant alleged that the invoices were fraudulent or issued in error, he did not that go a step further to demonstrate the alleged fraud. The Appellant had the opportunity to adduce evidence that the unsigned or blank invoices were fraudulent or issued in error. The Appellant failed to discharge this burden which had shifted to him. The lower court found that the mere presence of unsigned invoices, in the absence of credible evidence to suggest otherwise, does not negate the Appellant's liability. On this finding, this court’s view is that the Parties herein having alluded to the fact that they were engaged in business where the Respondent would supply building materials to the Appellant and the Appellant would issue post dated cheques in return as was admitted by the Appellant in his defence case, then the Appellant is estopped from diverting from and denying the deliveries on the basis of unsigned invoices.
   9. Lastly, from the record this court noted that on 3/3/2022, Parties attended court for a mention, which I believe was for pre-trial and counsel for the Appellant informed court that both Parties had complied and requested for a hearing date and the case was fixed for hearing on 7/7/2022. On the hearing date of 7/7/2022, counsel for the Appellant informed court that he had instructions to pursue an out of court settlement and applied for an adjournment. Although the Respondent objected to the application, the court allowed the same and fixed the case for hearing on 18/8/2022. The Appellant did not attempt to settle the matter as indicated before court and the hearing proceeded. At this point, I am struggling to understand why the Appellant talked of settling the matter when they disputed the entire claim by the Respondent. This can only mean that the Appellant owed the Respondent the amount claimed.
   10. In addition, Parties filed and exchanged their respective witness statements and list of documents to be relied upon at the hearing. The record shows that the Appellant did not issue a notice in advance that they would be objecting to production of some of the documents as exhibits and neither did they object to the production of any of the documents filed by the Respondent at the hearing. As things stand, the Respondent’s documents are proper exhibits before the court to be admitted in evidence.
   11. The Appellant submitted that invoices are not proof of delivery and receipt of goods, but rather a demand for payment for goods alleged to have been delivered. That an invoice comes at the tail end of the transaction. I find this submission by the Appellant to be contradictory in itself in that the Appellant appear to be admitting that invoices are demands for goods already delivered and comes at the end tail of any transaction which means for invoices to be issued there must be a delivery and thus proof of delivery where by the Respondent producing the invoices it meant the goods were already delivered.
   12. The Appellant only filed and produced 3 documents which were the demand letter dated 8/2/2021, the response to the demand letter dated 11/2/2020 and a record of the Appellant’s Company as at 28/1/2021. These documents could not have supported his defence at all.
   13. Of much concern is the evidence of the Appellant that cheques No. 001937, 001959, 001966, 001936, 001960 and 001967 amounting to Kshs.3,800,000/= were cancelled after the Respondent failed to deliver the goods. DW1 stated that the cancellation was communicated to the Respondent via his personal phone and through email at info@mwanzompya.com to communicate stoppage of the cheques payment but again, the Appellant did not prove this by providing evidence of the details of the communication including the date and time of communication or the call log or email print out in that respect. The trial court therefore correctly found and as this court too has established that the Appellant could only issue post dated cheques upon receipt of the goods. The Appellant’s narration is therefore not truthful and the same can only be taken as a ploy to evade paying the Respondent the amount claimed herein.

   Disposition

   1. This court having analysed the trial court’s judgement and basing on the analysis on this appeal, is of the view that the trial court carefully and correctly evaluated the evidence presented by both parties and correctly applied the law in the matter and made a finding based on a balance of probabilities by entering judgment in favour of the Respondent for Kshs.3,800,000/= plus interest and costs.
   2. The upshot therefore is that the appeal is dismissed with costs.
   3. Orders Accordingly.

   JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 3RD MARCH  2025

      NOEL I. ADAGI

                   JUDGE

   DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 3RD MARCH 2025

   In the presence of :

   Mr. Kimeu ...........for Appellant

   Mr. Macharia........ for Respondent

   Milly Grace......... Court Assistant