Background:
1. This Appeal seeks set aside the Judgment of the small claims court rendered on 31st July 2026. The judgment dismissed the Appellant’s claim. The Appellant’s claim dated 10th December 2024, sought Kshs.800,000 as unpaid balance of an invoice for tax consulting services. It was their case that the Respondent was their client and they offered tax consultancy services inclusive filing of objections, filing of tax returns and representations at Independent Review of Objections at Thika office.
2. Simon Kanyi Ngure signed a witness statement in support of their case and gave the genesis of the dispute. The Appellant filed written submissions dated 30th July 2025 responding to the issues raised by the Respondents.
3. The Respondent responded to the Claim vide response dated 18th December 2024. He agreed having engaged the Appellant for his services. He averred that it was agreed that he be paid Kshs.300,000/= for his serviced and in the event of a successful outcome, the Appellant was to be paid something additional as a token of appreciation. After successful completion of the tax, the Appellant was paid Kshs.100,000 but he demanded more leading to the dispute. The Respondent filed two witness statements by Willy Kihara Njoki and Charles Gathuri Kinyua.
4. The Respondent filed submissions dated 14th July 2015 supporting their position that there was no valid and binding contract further the Appellant had not proved their case on a balance of probability.
Judgment of the Trial Court.
5. The Trial Court in its analysis found that there was formal agreement between the parties in Court and that there was no written authority granted to any Director listed in the CR12 filed or the Appellant to engage in the tax consultancy services. The Learned magistrate relied on Section 35 of the Company's Act and Section 107 and 108 of the Evidence Act.
6. The Trial Court found that without existence of a formal instruction to engage in tax consultancy services, the Appellant is not able to prove that indeed he was contracted to offer tax consultancy services. The Claim was dismissed.
The Appeal.
7. The Appellants herein aggrieved by the decision preferred an appeal to this Court seeking to set aside the judgement of the small claims court, the grounds of appeal in the memorandum of appeal dated 24th August 2025 are as follows:
(i) The Learned Magistrate erred in law and in fact in arriving at the finding that the Respondent is not indebted to the Appellant Kshs.800,000 despite having saved the Respondent Kshs,14,949,095 in taxes.
(ii) The Learned Magistrate erred in law and in fact in failing to consider the Appellant’s submissions thus arriving at an erroneous finding
(iii) The Learned Magistrate erred in law and in fact in holding that there was no formal agreement hence dismissing the claim
(iv) The Learned Magistrate erred in law and in fact in totally disregarding pleadings tendered by the Appellant despite Section 32 of the Small Claims Court.
(v) The Learned Magistrate erred in law and in fact in failing to consider the admission by the Respondent’s witness with regard to the verbal agreement with the Appellant to offer tax consultancy services.
(vi) The Learned Magistrate erred in law and in fact in aiding the Respondent to argue their case.
The Submissions:
8. The Appeal proceeded by way of written submission and both parties have filed the same supporting their cases.
Analysis of the issue for determination.
9. The jurisdiction of this Court to entertain appeals from the Small Claims Court is strictly circumscribed by Section 38 of the Small Claims Court Act and are limited to matters of law and the appeal is final. Having said so, since the instant appeal calls upon this Court to ascertain whether the trial Court properly handled the issue of burden of proof, then that is a matter of law.
10. The High Court is further duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses. From the above analysis, the main issue for determination is whether the Lower erred in its findings, answering this question will settle the dispute.
11. Its undisputed that both parties do not have a written contract for the services offered/received, the next issue now is whether there was an oral agreement between the parties? How much money was agreed upon? What were the terms? Both parties do not dispute payment of Kshs. 400,000. The record of appeal confirms this. The Court of Appeal in the case of William Muthee Muthami v Bank Baroda (2014)Eklr, while discussing the validity of the contract held:
“In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can claim against the party in breach’’
12. The only issue pending now is whether the Appellant has proved being owed Kshs.800,000 by the Respondent. In my view the Appellant was required to prove that indeed the amount was owed to him. Section 108 of the Evidence Act provides that the burden of proof in a suit lies on that person who would fail if no evidence at all were given on either side.
13. The Court of Appeal in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR) on the issue of burden of proof held as follows:
“Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
14. From the above analysis it is my considered view that the Appellant has not discharged the burden of proof as required by Law. The Appellant may have assisted the Respondent undertake the objection process as per Tax Procedures Act but was still required in law to prove that indeed they are owed money by the Respondent.
15. The Appeal therefore fails and is dismissed with no order as to costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 17th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Ms. Muema h/b for Njeru Learned Counsel for the Appellant.
No appearance for the Respondent.
Michael - Court Assistant.
1. This Appeal seeks set aside the Judgment of the small claims court rendered on 31st July 2026. The judgment dismissed the Appellant’s claim. The Appellant’s claim dated 10th December 2024, sought Kshs.800,000 as unpaid balance of an invoice for tax consulting services. It was their case that the Respondent was their client and they offered tax consultancy services inclusive filing of objections, filing of tax returns and representations at Independent Review of Objections at Thika office.
2. Simon Kanyi Ngure signed a witness statement in support of their case and gave the genesis of the dispute. The Appellant filed written submissions dated 30th July 2025 responding to the issues raised by the Respondents.
3. The Respondent responded to the Claim vide response dated 18th December 2024. He agreed having engaged the Appellant for his services. He averred that it was agreed that he be paid Kshs.300,000/= for his serviced and in the event of a successful outcome, the Appellant was to be paid something additional as a token of appreciation. After successful completion of the tax, the Appellant was paid Kshs.100,000 but he demanded more leading to the dispute. The Respondent filed two witness statements by Willy Kihara Njoki and Charles Gathuri Kinyua.
4. The Respondent filed submissions dated 14th July 2015 supporting their position that there was no valid and binding contract further the Appellant had not proved their case on a balance of probability.
Judgment of the Trial Court.
5. The Trial Court in its analysis found that there was formal agreement between the parties in Court and that there was no written authority granted to any Director listed in the CR12 filed or the Appellant to engage in the tax consultancy services. The Learned magistrate relied on Section 35 of the Company's Act and Section 107 and 108 of the Evidence Act.
6. The Trial Court found that without existence of a formal instruction to engage in tax consultancy services, the Appellant is not able to prove that indeed he was contracted to offer tax consultancy services. The Claim was dismissed.
The Appeal.
7. The Appellants herein aggrieved by the decision preferred an appeal to this Court seeking to set aside the judgement of the small claims court, the grounds of appeal in the memorandum of appeal dated 24th August 2025 are as follows:
(i) The Learned Magistrate erred in law and in fact in arriving at the finding that the Respondent is not indebted to the Appellant Kshs.800,000 despite having saved the Respondent Kshs,14,949,095 in taxes.
(ii) The Learned Magistrate erred in law and in fact in failing to consider the Appellant’s submissions thus arriving at an erroneous finding
(iii) The Learned Magistrate erred in law and in fact in holding that there was no formal agreement hence dismissing the claim
(iv) The Learned Magistrate erred in law and in fact in totally disregarding pleadings tendered by the Appellant despite Section 32 of the Small Claims Court.
(v) The Learned Magistrate erred in law and in fact in failing to consider the admission by the Respondent’s witness with regard to the verbal agreement with the Appellant to offer tax consultancy services.
(vi) The Learned Magistrate erred in law and in fact in aiding the Respondent to argue their case.
The Submissions:
8. The Appeal proceeded by way of written submission and both parties have filed the same supporting their cases.
Analysis of the issue for determination.
9. The jurisdiction of this Court to entertain appeals from the Small Claims Court is strictly circumscribed by Section 38 of the Small Claims Court Act and are limited to matters of law and the appeal is final. Having said so, since the instant appeal calls upon this Court to ascertain whether the trial Court properly handled the issue of burden of proof, then that is a matter of law.
10. The High Court is further duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses. From the above analysis, the main issue for determination is whether the Lower erred in its findings, answering this question will settle the dispute.
11. Its undisputed that both parties do not have a written contract for the services offered/received, the next issue now is whether there was an oral agreement between the parties? How much money was agreed upon? What were the terms? Both parties do not dispute payment of Kshs. 400,000. The record of appeal confirms this. The Court of Appeal in the case of William Muthee Muthami v Bank Baroda (2014)Eklr, while discussing the validity of the contract held:
“In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can claim against the party in breach’’
12. The only issue pending now is whether the Appellant has proved being owed Kshs.800,000 by the Respondent. In my view the Appellant was required to prove that indeed the amount was owed to him. Section 108 of the Evidence Act provides that the burden of proof in a suit lies on that person who would fail if no evidence at all were given on either side.
13. The Court of Appeal in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR) on the issue of burden of proof held as follows:
“Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
14. From the above analysis it is my considered view that the Appellant has not discharged the burden of proof as required by Law. The Appellant may have assisted the Respondent undertake the objection process as per Tax Procedures Act but was still required in law to prove that indeed they are owed money by the Respondent.
15. The Appeal therefore fails and is dismissed with no order as to costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 17th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Ms. Muema h/b for Njeru Learned Counsel for the Appellant.
No appearance for the Respondent.
Michael - Court Assistant.