REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E068 OF 2025
PAUL KUTO FWAMBA .………………………………………. APPELLANT
- VERSUS -
ROSE NANGEKHE WEKESA.....…….….……….… 1 ST RESPONDENT
DAVID WEKESA MATHAYO………………….…….. 2 ND RESPONDENT
(Being an appeal from the judgment and decree of Hon. J. Ndururi SPM delivered on 17/4/2025 in Kimilili SPMCC No. E058 of 2024)
JUDGMENT
1. The appellant filed the primary suit before the trial court via a plaint dated 26/4/2024. He claimed general and punitive damages, as well as special damages of Kshs. 95,500/-, and costs of the suit for damage caused to his farm by the respondents.
2. The defendants were duly served with the plaint and summons to enter appearance but failed to enter appearance or file a defence.
3. The matter proceeded to formal proof, and by a judgment delivered on 17/4/2025, the trial court found that the appellant had failed to prove his case and proceeded to dismiss the suit with costs to the respondents.
4. Being dissatisfied with the said judgment/decree, the appellant lodged this appeal vide the Memorandum of Appeal dated 24/4/2025 and raised thirteen (13) grounds of appeal summarized as follows: -
a) That the learned trial magistrate erred in law and fact by failing to determine that the plaintiff’s case was heard ex-parte.
b) That the learned trial magistrate erred in law and fact by considering issues that were not before him thus abandoning his role as an adjudicator and becoming an advocate on behalf of the defendants who failed to participate in the trial and ending up with a decision that was against the evidence presented before him.
c) That the learned trial magistrate erred in law and fact when he failed to identify the supporting evidence that was on record including the expert record of an agricultural officer.
d) That the learned trial magistrate misdirected himself in dismissing the plaintiff’s suit and awarding costs to the defendants who never participated in the suit.
5. The appeal was disposed off by written submissions; however, at the time of writing this judgment, only the appellant’s submissions were on record as the respondent never took part in these proceedings.
6. The appellant contended that the trial magistrate lacked jurisdiction to dismiss the suit after interlocutory judgment had been entered and remained uncontested. He relied on the case of James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR. He asserted that his evidence was unchallenged and uncontroverted, and therefore, the trial magistrate was obliged to consider it and make a judgment based on the evidence presented, as upheld in the cases of Trust Bank Ltd v Paramount Universal Bank Ltd & 2 Others [2009] eKLR and Karugi & Another v Kabiya & 3 Others [1987] KLR 347. It was an error in law to award the defendants costs where they never participated in the suit, as costs follow the event was held in the case of Republic v Rosemary Wairimu Munene Ex parte Ihururu Dairy Farmers Co-operative Society Ltd [2014] eKLR. The judgment delivered by the trial court violated the provisions of Order 21 Rule 4 of the Civil Procedure Rules, as it referred to a different court station and year, thereby demonstrating a lack of due consideration and rendering it irregular and void.
7. That the trial magistrate acted improperly as an advocate for the defence by raising issues never pleaded or argued, thus violating the principle of impartiality under Article 50 (1) of the Constitution and section 1A & 1B of the Civil Procedure Act.
ANALYSIS AND DETERMINATION
8. This being a first appeal, the Court is duty-bound to evaluate the evidence at the trial afresh and come to its own independent findings and conclusions, but at all times having in mind that it did not have the advantage of seeing the witnesses testify. (s ee Selle & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123).
9. The appellant’s case before the trial court was that on 11/2/2020, he filed a report at Kuywa Police Post via OB No. 03/11/2/2020 at 1600hrs, stating that the respondents damaged his 38 fencing posts, barbed wire, six indigenous trees, and napier grass. He sought the advice of an Agricultural Officer to assess the damages, and in his report dated 14/2/2020, the Agricultural Officer quantified the damages as Kshs. 40,800/- plus Kshs. 6,000/- for legal redress expenses.
10. The appellant testified as Pw1 and adopted his statement dated 26/4/2024 as his evidence in chief, wherein he reiterated the claims in his plaint. He further adopted his list of documents of the same date as his exhibits, after which he closed his case.
11. It is based on this evidence that the trial court made its decision. From the foregoing, the grounds of appeal can be summarised into three, viz,
i Whether the learned trial magistrate erred in law and in fact in failing to consider the provisions of Order 21 Rule 4 of the Civil Procedure Rules and other provisions as required by law
ii Whether the trial court misdirected itself in ignoring the evidence presented before it thus arriving at an erroneous judgement.
iii Whether the trial court erred in awarding costs to the respondents.
12. The appellant challenged the trial court judgment on the grounds that it did not comply with Order 21 Rule 4 of the Civil Procedure Rules.
13. A judgment must comply with the mandatory provisions of Order 21 rule 4 of the Civil Procedure Rules, which stipulate that a judgment in a defended suit should contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. I have examined the impugned judgment and note that it fully complies with Order 21 Rule 4. The fact that the trial court arrived at an incorrect conclusion does not mean that it failed to comply with Order 21 Rule 4. Accordingly, this aspect of the appeal is dismissed.
14. Regarding whether the trial court erred in reaching its decision, the appellant’s claim included general damages, punitive damages, and special damages of Kshs. 95,500 for damage caused to his land by the respondents.
15. A proper reading of the appellant’s case before the trial court shows it was for compensation for malicious damage caused by the respondents, which damage was assessed and calculated at Kshs. 40,800/-, as detailed in the report dated 14/2/2020 by Omoto J.P., the Agricultural Officer, Mukuyuni Ward.
16. The trial court held that the appellant failed to prove his case on a balance of probabilities. Sections 107-109 of the Evidence Act, Cap 80 Laws of Kenya, which provide that:
“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.
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.”
17. The question of what constitutes proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 as follows:
“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.”
18. The burden of proof was thus placed on the appellant and was to be discharged on a balance of probabilities, as stated by the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions [2015] KECA 616 (KLR).
19. In this case, the respondents never participated in the trial. Notwithstanding the above, the mere fact that the respondent failed to take part in the proceedings did not exempt the appellant from providing evidence to support his claim. Dealing with a similar issue where the defendant failed to call witnesses in support of their filed statement of defence, Lesiit J. (as she then was) held in Moltex Knitwear Limited v Gopitex Knitwear Mills Limited, Nairobi (Milimani) HCCC No. 834 of 2002, citing the case of Autar Singh Bahra and another v Raju Govindji, HCCC No. 548 of 1998 that:
“Although the defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1 st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”
20. Consequently, the mere fact that the respondents did not call evidence in support of their case did not absolve the appellant from proving his claim against them. Indeed, to suggest that the moment a defendant participates in a trial and does not call evidence, a plaintiff’s case is proved, would be an absurdity. See Margaret Wanjiru Ndirangu & 4 others v Attorney General [2020] KECA 683 (KLR).
21. As previously stated, the damage sustained by the appellant was assessed and calculated at Kshs. 40,800/- as detailed in report dated 14/2/2020 by Omoto J.P., the Agricultural Officer, Mukuyuni Ward. This was the only evidence presented by the appellant regarding the loss incurred. From the evidence on record, the appellant failed to prove the legal fees of Kshs. 6,000.
22. The appellant challenged the trial court’s judgment on the grounds that the court considered matters not pleaded or presented before him, leading to an erroneous decision. I agree with the appellant on this point, as a review of the impugned judgement at paragraph 14 shows that the trial court considered evidence presented by a defendant (sic), although none appeared before it. To this extent, the trial court erred in taking into account factors beyond those presented before it.
23. Finally, regarding the issue of costs, it is trite law that the question of costs is a discretionary matter awarded to the successful party. Furthermore, this discretion must be exercised wisely, and a party cannot be denied costs unless it can be demonstrated that they acted unreasonably. Additionally, section 27 of the Act makes it clear that the discretion to award costs rests with the court in any suit. This discretion must be exercised judiciously. It is trite law that when the court denies costs to a party who has been successful in a suit, the reasons for such a decision must be clearly stated. In the case of Supermarine Handling Services Ltd v Kenya Revenue Authority Civil Appeal No 85 of 2006, the Court of Appeal stated: -
“Costs of any action or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise order. It is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the discretion of the Judge who tried his case, that discretion is a judicial discretion, and if it be so its exercise must be based on facts. If, however, there be, in fact, some grounds to support the exercise by the trial Judge of the discretion he purports to exercise, the question of sufficiency of those grounds for this purpose is entirely a matter for the Judge to decide, and the Court of Appeal will not interfere with his discretion in that instance.”
24. In the present case, the trial court awarded costs to the respondents who never participated in the proceedings. In my view, this was not a prudent exercise of discretion. The appellant proved its case before the trial court and was thus entitled to be awarded the costs involved. Therefore, I find that the trial court erred in awarding costs to the respondents.
25. The upshot of the above is that I find the trial court erred both in fact and in law in reaching its decision. In conclusion, I make the following orders;
a) The judgment of the trial court delivered on 17/4/2025 in Kimilili CMCC No. E058 of 2024 is hereby set aside entirely.
b) The applicant is awarded proven damages of Kshs. 40,800/-
c) Costs in both the trial court and this appeal are awarded to the appellants.
d) Interest on (a) and (b) with effect from the date of this judgement until payment in full. It is so ordered.
Dated, signed and delivered at Bungoma on the 12 th Day of March 2026.
R. OUGO
JUDGE
In the presence of :
Paul Kuto Fwamba/ Appellant in person
Respondents - Absent
Wilkister - C/A
hcca no. e068 of 2025- judgment 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E068 OF 2025
PAUL KUTO FWAMBA .………………………………………. APPELLANT
- VERSUS -
ROSE NANGEKHE WEKESA.....…….….……….… 1 ST RESPONDENT
DAVID WEKESA MATHAYO………………….…….. 2 ND RESPONDENT
(Being an appeal from the judgment and decree of Hon. J. Ndururi SPM delivered on 17/4/2025 in Kimilili SPMCC No. E058 of 2024)
JUDGMENT
1. The appellant filed the primary suit before the trial court via a plaint dated 26/4/2024. He claimed general and punitive damages, as well as special damages of Kshs. 95,500/-, and costs of the suit for damage caused to his farm by the respondents.
2. The defendants were duly served with the plaint and summons to enter appearance but failed to enter appearance or file a defence.
3. The matter proceeded to formal proof, and by a judgment delivered on 17/4/2025, the trial court found that the appellant had failed to prove his case and proceeded to dismiss the suit with costs to the respondents.
4. Being dissatisfied with the said judgment/decree, the appellant lodged this appeal vide the Memorandum of Appeal dated 24/4/2025 and raised thirteen (13) grounds of appeal summarized as follows: -
a) That the learned trial magistrate erred in law and fact by failing to determine that the plaintiff’s case was heard ex-parte.
b) That the learned trial magistrate erred in law and fact by considering issues that were not before him thus abandoning his role as an adjudicator and becoming an advocate on behalf of the defendants who failed to participate in the trial and ending up with a decision that was against the evidence presented before him.
c) That the learned trial magistrate erred in law and fact when he failed to identify the supporting evidence that was on record including the expert record of an agricultural officer.
d) That the learned trial magistrate misdirected himself in dismissing the plaintiff’s suit and awarding costs to the defendants who never participated in the suit.
5. The appeal was disposed off by written submissions; however, at the time of writing this judgment, only the appellant’s submissions were on record as the respondent never took part in these proceedings.
6. The appellant contended that the trial magistrate lacked jurisdiction to dismiss the suit after interlocutory judgment had been entered and remained uncontested. He relied on the case of James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR. He asserted that his evidence was unchallenged and uncontroverted, and therefore, the trial magistrate was obliged to consider it and make a judgment based on the evidence presented, as upheld in the cases of Trust Bank Ltd v Paramount Universal Bank Ltd & 2 Others [2009] eKLR and Karugi & Another v Kabiya & 3 Others [1987] KLR 347. It was an error in law to award the defendants costs where they never participated in the suit, as costs follow the event was held in the case of Republic v Rosemary Wairimu Munene Ex parte Ihururu Dairy Farmers Co-operative Society Ltd [2014] eKLR. The judgment delivered by the trial court violated the provisions of Order 21 Rule 4 of the Civil Procedure Rules, as it referred to a different court station and year, thereby demonstrating a lack of due consideration and rendering it irregular and void.
7. That the trial magistrate acted improperly as an advocate for the defence by raising issues never pleaded or argued, thus violating the principle of impartiality under Article 50 (1) of the Constitution and section 1A & 1B of the Civil Procedure Act.
ANALYSIS AND DETERMINATION
8. This being a first appeal, the Court is duty-bound to evaluate the evidence at the trial afresh and come to its own independent findings and conclusions, but at all times having in mind that it did not have the advantage of seeing the witnesses testify. (s ee Selle & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123).
9. The appellant’s case before the trial court was that on 11/2/2020, he filed a report at Kuywa Police Post via OB No. 03/11/2/2020 at 1600hrs, stating that the respondents damaged his 38 fencing posts, barbed wire, six indigenous trees, and napier grass. He sought the advice of an Agricultural Officer to assess the damages, and in his report dated 14/2/2020, the Agricultural Officer quantified the damages as Kshs. 40,800/- plus Kshs. 6,000/- for legal redress expenses.
10. The appellant testified as Pw1 and adopted his statement dated 26/4/2024 as his evidence in chief, wherein he reiterated the claims in his plaint. He further adopted his list of documents of the same date as his exhibits, after which he closed his case.
11. It is based on this evidence that the trial court made its decision. From the foregoing, the grounds of appeal can be summarised into three, viz,
i Whether the learned trial magistrate erred in law and in fact in failing to consider the provisions of Order 21 Rule 4 of the Civil Procedure Rules and other provisions as required by law
ii Whether the trial court misdirected itself in ignoring the evidence presented before it thus arriving at an erroneous judgement.
iii Whether the trial court erred in awarding costs to the respondents.
12. The appellant challenged the trial court judgment on the grounds that it did not comply with Order 21 Rule 4 of the Civil Procedure Rules.
13. A judgment must comply with the mandatory provisions of Order 21 rule 4 of the Civil Procedure Rules, which stipulate that a judgment in a defended suit should contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. I have examined the impugned judgment and note that it fully complies with Order 21 Rule 4. The fact that the trial court arrived at an incorrect conclusion does not mean that it failed to comply with Order 21 Rule 4. Accordingly, this aspect of the appeal is dismissed.
14. Regarding whether the trial court erred in reaching its decision, the appellant’s claim included general damages, punitive damages, and special damages of Kshs. 95,500 for damage caused to his land by the respondents.
15. A proper reading of the appellant’s case before the trial court shows it was for compensation for malicious damage caused by the respondents, which damage was assessed and calculated at Kshs. 40,800/-, as detailed in the report dated 14/2/2020 by Omoto J.P., the Agricultural Officer, Mukuyuni Ward.
16. The trial court held that the appellant failed to prove his case on a balance of probabilities. Sections 107-109 of the Evidence Act, Cap 80 Laws of Kenya, which provide that:
“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.
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.”
17. The question of what constitutes proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 as follows:
“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.”
18. The burden of proof was thus placed on the appellant and was to be discharged on a balance of probabilities, as stated by the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions [2015] KECA 616 (KLR).
19. In this case, the respondents never participated in the trial. Notwithstanding the above, the mere fact that the respondent failed to take part in the proceedings did not exempt the appellant from providing evidence to support his claim. Dealing with a similar issue where the defendant failed to call witnesses in support of their filed statement of defence, Lesiit J. (as she then was) held in Moltex Knitwear Limited v Gopitex Knitwear Mills Limited, Nairobi (Milimani) HCCC No. 834 of 2002, citing the case of Autar Singh Bahra and another v Raju Govindji, HCCC No. 548 of 1998 that:
“Although the defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1 st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”
20. Consequently, the mere fact that the respondents did not call evidence in support of their case did not absolve the appellant from proving his claim against them. Indeed, to suggest that the moment a defendant participates in a trial and does not call evidence, a plaintiff’s case is proved, would be an absurdity. See Margaret Wanjiru Ndirangu & 4 others v Attorney General [2020] KECA 683 (KLR).
21. As previously stated, the damage sustained by the appellant was assessed and calculated at Kshs. 40,800/- as detailed in report dated 14/2/2020 by Omoto J.P., the Agricultural Officer, Mukuyuni Ward. This was the only evidence presented by the appellant regarding the loss incurred. From the evidence on record, the appellant failed to prove the legal fees of Kshs. 6,000.
22. The appellant challenged the trial court’s judgment on the grounds that the court considered matters not pleaded or presented before him, leading to an erroneous decision. I agree with the appellant on this point, as a review of the impugned judgement at paragraph 14 shows that the trial court considered evidence presented by a defendant (sic), although none appeared before it. To this extent, the trial court erred in taking into account factors beyond those presented before it.
23. Finally, regarding the issue of costs, it is trite law that the question of costs is a discretionary matter awarded to the successful party. Furthermore, this discretion must be exercised wisely, and a party cannot be denied costs unless it can be demonstrated that they acted unreasonably. Additionally, section 27 of the Act makes it clear that the discretion to award costs rests with the court in any suit. This discretion must be exercised judiciously. It is trite law that when the court denies costs to a party who has been successful in a suit, the reasons for such a decision must be clearly stated. In the case of Supermarine Handling Services Ltd v Kenya Revenue Authority Civil Appeal No 85 of 2006, the Court of Appeal stated: -
“Costs of any action or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise order. It is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the discretion of the Judge who tried his case, that discretion is a judicial discretion, and if it be so its exercise must be based on facts. If, however, there be, in fact, some grounds to support the exercise by the trial Judge of the discretion he purports to exercise, the question of sufficiency of those grounds for this purpose is entirely a matter for the Judge to decide, and the Court of Appeal will not interfere with his discretion in that instance.”
24. In the present case, the trial court awarded costs to the respondents who never participated in the proceedings. In my view, this was not a prudent exercise of discretion. The appellant proved its case before the trial court and was thus entitled to be awarded the costs involved. Therefore, I find that the trial court erred in awarding costs to the respondents.
25. The upshot of the above is that I find the trial court erred both in fact and in law in reaching its decision. In conclusion, I make the following orders;
a) The judgment of the trial court delivered on 17/4/2025 in Kimilili CMCC No. E058 of 2024 is hereby set aside entirely.
b) The applicant is awarded proven damages of Kshs. 40,800/-
c) Costs in both the trial court and this appeal are awarded to the appellants.
d) Interest on (a) and (b) with effect from the date of this judgement until payment in full. It is so ordered.
Dated, signed and delivered at Bungoma on the 12 th Day of March 2026.
R. OUGO
JUDGE
In the presence of :
Paul Kuto Fwamba/ Appellant in person
Respondents - Absent
Wilkister - C/A
hcca no. e068 of 2025- judgment 2