REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
HIGH COURT CIVIL APPEAL NO. E075 OF 2025
POWER GROUP TECHNOLOGIES LTD………..……………….. APPELLENT
VERSUS
JRS GROUP LIMITED…….…………....……………......................RESPONDENT
JUDGMENT
1. The appellant, Power Group Technology Ltd was the respondent Kisumu SCCC No. 1241 OF 2024. In that claim the respondent herein JRS Group Limited had filed a claim seeking Kshs. 471,701/= being fees for services provided between 4/4/2023 and 15/7/2023.
2. The appellant denied the claim and filed a counter claim and set off. They sought judgment for Kshs. 585,000/= and prayed that the claimant claims in the sum of Kshs. 471,701/- be set out from this sum.
3. The matter proceeded under Section 30 of the small claims act. The Adjudicator delivered a judgment on 27/2/2024 allowing the respondents claim and dismissed the counter claim with costs to the respondents.
4. It is this judgment that provoked the Court of Appeal. In the memorandum of appeal, the appellant listed the following grounds:-
(i) That the learned magistrate erred in law and in fact findings that the only issue for determination was whether the appellant herein owes the respondent whereas there was a counter claim and set off filed by the appellant which requires determination which requires determination.
(ii) The learned magistrate erred in law and in facts by failing to consider the appellants counter claim and set off dated 30/12/2024.
(iii) The learned magistrate erred in law and in fact by failing to find that the respondent reached clause 10 of the security services contract which required the respondent to issue a one matter notice of merit of the contents.
(iv) The learned magistrate erred in law and fact by failing to find that the appellant incurred losses arising from the respondent’s breach of clause 10 of the security services contract.
(v) That the learned magistrate erred in law and fact by failing to find that the respondent did not reply to the appellants counter claim for breach of contract and therefore it should have been considered as admitted.
(vi) That the learned magistrate erred in law and in fact by finding that the respondent proved its claim on the balance of probability.
(vii) That the learned magistrate erred in fact by failing to acknowledge that the appellant lost its goods worth Kshs. 454,460/= at the hands of the appellant(s) and was not entitled to its claim.
(viii) That the learned magistrate erred in law and facts by allowing the respondent claim and dismissing the appellants counter claim and set off.
5. Having set out the grounds of appeal the appellant prayed this court to allow the appeal, set aside the judgment delivered by Hon. G.C. Serem and allow the appellants counter claim with costs.
6. The respondents filed written submissions in support and against the appeal. The appellant submissions generally tracked the listed grounds. It was submitted that the judgment went against the weight of the evidence on merit. It was its submissions that the respondent was in breach of the service contract by allowing theft to occur under its watch. That the respondent breached the contract through unilateral treatment.
7. The respondent submitted that the parties were bond by the contract. That the respondent performed its contractual obligations and was entitled to payment that the appellant did not pay as agreed and the counter claim was not proved to the rightful stand.
8. I have duly considered the records and submissions by the parties. The High Court appellate jurisdiction owns decisions from the small claims court is governed by Section 38 (1) of the small claims court act. It restricts the court to matter of law and findings of facts by the Adjudicator are final unless it can be demonstrated that they are perverse and completely unsupported evidence.
9. In this appeal the main issue of determination distilled from the eight grounds is whether there was breach of contract by the appellant. There is also the question as to whether the counter claim was proved to the required standards.
10. The issues revolve around the adjudicators applicant of Section 107, 108 and 109 of the evidence act to the evidence placed before her. The provision provides:-
‘107 Burden of proof
(1) whoever desired any court to give judgment as to any legal right and liability depended on the existence of facts which he assists 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 lives on that person.
108 incidences of burden
The burden of proof in a suit lies on that the person who wanted fail if no evidence at all were given on either side.
109 proof of practical and facts
The burden of proof as to any practical that lies on the person who wishes the court to believe in its existence, unless it is provided by any law that proof of that fact shall be on any particular person.
11. The provision spelt out the two limbs of the burden of proof. This in the high burden of proof and the evidence. The burden of proof. The legal boundaries with the claimant. The evidence burden states with the claimant but may shift to the respondent depending on the weight of evidence adduced by the claimant.
12. In the instant case the claimant established that the was a contract of service where they were providing security services to the appellants. The adjudicator finds this to be a valid contract between the points. As a matter of fact, the contract is also the basis of the counter claim. The appellant has not presented any argument to challenge the findings of a fact on this aspect. I leave them undisturbed.
13. Having provided security services, the respondent claimed that they had not been paid. They provided invoices. No evidences were adduced to show payment. In any case this was also a matter of facts resolved by the adjudicators. No reasons given to disturb the findings that the appellant did not pay for services rendered in the sum of Kshs. 471,701/=. This amount was due and owing at that time of the determination of the contract. The judgment entered for the amount in favour of the respondent is safe. It is allowed to stand. The appeal ought this judgment be without merit. The same is hereby dismissed.
14. The learned adjudicator dismissed the counter claim and set off. The appellant refer to an incident of theft where some goods got lost. It is stated that the matter was referred to the police. That the matter was investigated. At this point of the counter claim the legal and evidential burden lays with the appellant. The learned adjudicator finds that the allegations in the counter claim were not proved to the weighed standards pleading are not evidence. It is not enough to allege. It was not even shown whether the alleged theft was linked to the respondent.
15. The appellant has not demonstrated that the findings of the adjudicator went against the weight of evidence and were perverse in the result the finding and judgment dismissing the counter claim and set off stands.
16. The net effect of my findings above is that the entire appeal is not without merits. It is hereby dismissed.
17. On costs it is a time honored principle that they are in the discretion of the court. They follow the event in this case the respondent is the successful party. They get the costs of the appeal. It is so ordered.
Hon. A.K. Ithuku
JUDGE
Court
Judgment delivered in virtual court.
Ms. Wairimu holding brief for Ms. Kabugu for the applicant
Ms. Mboya for the respondent
Hon. A.K. Ithuku
JUDGE
Ms. Wairimu
I pray for 30 days stay of execution.
Mr. Mboya
No objection
Court
30 days stay of execution granted.
Hon. A.K. Ithuku
JUDGE
Page 8 of 8 HCCRA NO. E075 OF 2025
IN THE HIGH COURT OF KENYA AT KISUMU
HIGH COURT CIVIL APPEAL NO. E075 OF 2025
POWER GROUP TECHNOLOGIES LTD………..……………….. APPELLENT
VERSUS
JRS GROUP LIMITED…….…………....……………......................RESPONDENT
JUDGMENT
1. The appellant, Power Group Technology Ltd was the respondent Kisumu SCCC No. 1241 OF 2024. In that claim the respondent herein JRS Group Limited had filed a claim seeking Kshs. 471,701/= being fees for services provided between 4/4/2023 and 15/7/2023.
2. The appellant denied the claim and filed a counter claim and set off. They sought judgment for Kshs. 585,000/= and prayed that the claimant claims in the sum of Kshs. 471,701/- be set out from this sum.
3. The matter proceeded under Section 30 of the small claims act. The Adjudicator delivered a judgment on 27/2/2024 allowing the respondents claim and dismissed the counter claim with costs to the respondents.
4. It is this judgment that provoked the Court of Appeal. In the memorandum of appeal, the appellant listed the following grounds:-
(i) That the learned magistrate erred in law and in fact findings that the only issue for determination was whether the appellant herein owes the respondent whereas there was a counter claim and set off filed by the appellant which requires determination which requires determination.
(ii) The learned magistrate erred in law and in facts by failing to consider the appellants counter claim and set off dated 30/12/2024.
(iii) The learned magistrate erred in law and in fact by failing to find that the respondent reached clause 10 of the security services contract which required the respondent to issue a one matter notice of merit of the contents.
(iv) The learned magistrate erred in law and fact by failing to find that the appellant incurred losses arising from the respondent’s breach of clause 10 of the security services contract.
(v) That the learned magistrate erred in law and fact by failing to find that the respondent did not reply to the appellants counter claim for breach of contract and therefore it should have been considered as admitted.
(vi) That the learned magistrate erred in law and in fact by finding that the respondent proved its claim on the balance of probability.
(vii) That the learned magistrate erred in fact by failing to acknowledge that the appellant lost its goods worth Kshs. 454,460/= at the hands of the appellant(s) and was not entitled to its claim.
(viii) That the learned magistrate erred in law and facts by allowing the respondent claim and dismissing the appellants counter claim and set off.
5. Having set out the grounds of appeal the appellant prayed this court to allow the appeal, set aside the judgment delivered by Hon. G.C. Serem and allow the appellants counter claim with costs.
6. The respondents filed written submissions in support and against the appeal. The appellant submissions generally tracked the listed grounds. It was submitted that the judgment went against the weight of the evidence on merit. It was its submissions that the respondent was in breach of the service contract by allowing theft to occur under its watch. That the respondent breached the contract through unilateral treatment.
7. The respondent submitted that the parties were bond by the contract. That the respondent performed its contractual obligations and was entitled to payment that the appellant did not pay as agreed and the counter claim was not proved to the rightful stand.
8. I have duly considered the records and submissions by the parties. The High Court appellate jurisdiction owns decisions from the small claims court is governed by Section 38 (1) of the small claims court act. It restricts the court to matter of law and findings of facts by the Adjudicator are final unless it can be demonstrated that they are perverse and completely unsupported evidence.
9. In this appeal the main issue of determination distilled from the eight grounds is whether there was breach of contract by the appellant. There is also the question as to whether the counter claim was proved to the required standards.
10. The issues revolve around the adjudicators applicant of Section 107, 108 and 109 of the evidence act to the evidence placed before her. The provision provides:-
‘107 Burden of proof
(1) whoever desired any court to give judgment as to any legal right and liability depended on the existence of facts which he assists 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 lives on that person.
108 incidences of burden
The burden of proof in a suit lies on that the person who wanted fail if no evidence at all were given on either side.
109 proof of practical and facts
The burden of proof as to any practical that lies on the person who wishes the court to believe in its existence, unless it is provided by any law that proof of that fact shall be on any particular person.
11. The provision spelt out the two limbs of the burden of proof. This in the high burden of proof and the evidence. The burden of proof. The legal boundaries with the claimant. The evidence burden states with the claimant but may shift to the respondent depending on the weight of evidence adduced by the claimant.
12. In the instant case the claimant established that the was a contract of service where they were providing security services to the appellants. The adjudicator finds this to be a valid contract between the points. As a matter of fact, the contract is also the basis of the counter claim. The appellant has not presented any argument to challenge the findings of a fact on this aspect. I leave them undisturbed.
13. Having provided security services, the respondent claimed that they had not been paid. They provided invoices. No evidences were adduced to show payment. In any case this was also a matter of facts resolved by the adjudicators. No reasons given to disturb the findings that the appellant did not pay for services rendered in the sum of Kshs. 471,701/=. This amount was due and owing at that time of the determination of the contract. The judgment entered for the amount in favour of the respondent is safe. It is allowed to stand. The appeal ought this judgment be without merit. The same is hereby dismissed.
14. The learned adjudicator dismissed the counter claim and set off. The appellant refer to an incident of theft where some goods got lost. It is stated that the matter was referred to the police. That the matter was investigated. At this point of the counter claim the legal and evidential burden lays with the appellant. The learned adjudicator finds that the allegations in the counter claim were not proved to the weighed standards pleading are not evidence. It is not enough to allege. It was not even shown whether the alleged theft was linked to the respondent.
15. The appellant has not demonstrated that the findings of the adjudicator went against the weight of evidence and were perverse in the result the finding and judgment dismissing the counter claim and set off stands.
16. The net effect of my findings above is that the entire appeal is not without merits. It is hereby dismissed.
17. On costs it is a time honored principle that they are in the discretion of the court. They follow the event in this case the respondent is the successful party. They get the costs of the appeal. It is so ordered.
Hon. A.K. Ithuku
JUDGE
Court
Judgment delivered in virtual court.
Ms. Wairimu holding brief for Ms. Kabugu for the applicant
Ms. Mboya for the respondent
Hon. A.K. Ithuku
JUDGE
Ms. Wairimu
I pray for 30 days stay of execution.
Mr. Mboya
No objection
Court
30 days stay of execution granted.
Hon. A.K. Ithuku
JUDGE
Page 8 of 8 HCCRA NO. E075 OF 2025