REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
CIVIL APPEAL NO. E009 OF 2025
PRYJOYLINK COMPANY LIMITED…………………..………APPELLANT
VERSUS
SAMUEL KIPKEU T/A SOI MERCHANTS …….……………RESPONDENT
JUDGMENT
1) In Kabarnet MCCC E038/2022 the Plaintiff’s claim in the plaint dated 18/7/2022 was for Judgment against the defendant in the following terms:-
(a) A total of Kshs. 5,970,981/=
(b) General Damages for breach of contract.
(c) Interest on (a) above from the date it was due and payable.
(d) Any other relief that this Honorable Court may deem fit to grant.
(e) Costs of (a), (b), (c).
(f) Costs and interest of this suit .
2) The Plaintiffs claim was that the Plaintiff had supplied the defendant with assorted goods valued at Ksh. 5,970,981 between 16/10/2019 & 1/8/2021.
3) That the defendant had failed to pay the same in breach of contract – particulars of which were set out as follows:-
a) False obtaining goods from the Plaintiff in the pretense that the same shall be paid for as soon as they are delivered.
b) Failing to pay for the goods received on time.
c) Despite demand and notice of intention to sue having been served, the Defendant has ignored, failed, neglected and/or refused to pay the Plaintiff.
4) The defendant through defence dated 23/9/2022 denied all the claims, and put the plaintiff to strict proof thereof.
5) The matter proceeded to hearing by way of viva voce evidence
6) Pw1 Samuel Kipkeu Aengwo testified that he was a businessman at Soi Merchants. He adopted his witness statement dated 25/7/2023 and a list of documents dated 28/7/2022. He also adopted his further list of documents dated 19/3/2023, 18/7/2024. He produced the lists as PEx 1 & Pex 2.
7) On cross-examination he told the court that the defendant was taking items from his shop. He said they had no agreement for supply. He said he knew the defendant, that she brought her manager, he said she owed him Ksh. 1,970,980. That he was asking for Ksh 5,970,981.
8) He said there were documents showing that the goods had been delivered; he said the statement was generated by the accountant. He said the money owed was over Ksh 5 million, not one million. He said the items were not delivered from the market or butchery – he said the debt accrued from 2019 to 2020. He said they worked with the defendants company. He said there was no company resolution from his company to supply the defendant.
9) On re-examination, he said he knew the defendant because they are from the same place, and as a friend, that she had paid him at other times.
10) Pw2 Samuel Cheburet testified that he was the manager at Soi Supermarket. He adopted his statement dated 25/1/2023. On cross-examination he told the court his work was to dispatch goods. That there were invoices and documents showing delivery was made to the defendant – that the defendant used to pay weekly then she stopped. That the supplies depended on the orders from the County; that sometimes they would be supplied twice a day.
11) The plaintiff closed his case.
12) Dw1 Priscilla Chebet testified that her company was the defendant. She said that her company supplied food items to Baringo County Government. She relied on her statement dated 23/9/2022 which she adopted as her evidence. She told the court she came to know the defendants when they demanded payment from her, in 2022, that she did not know them before that she said that they had no evidence to prove that she owed them Kshs. 5.9 million.
13) On cross-examination she said that the letter dated 25/9/2019 was in her possession, that she did not know how the plaintiff came to be in possession of the same – that she sourced her supplies from the Market not from Soi Supermarket; that she only knew about the claim from the plaintiffs when they made the demand from her. She closed her case.
14) Parties filed Written Submissions.
15) In a Judgment delivered on 22/1/2025, the learned trial court entered Judgment for the plaintiffs against the defendant for the sum of Ksh 5,970,981 for breach of contract plus costs and interest of the suit (sic) at court rates – (22/1/2025) and the trial court found that (1) there was a valid oral contract supported by invoices produced by the plaintiff, and that (ii) the defendant had breached the said contract.
16) Aggrieved, the defendants filed this appeal through the Memorandum of Appeal dated 17/2/2025. The grounds for the appeal were that :-
1. That the learned trial magistrate erred in fact and law by finding that the Respondent herein had a valid claim to the tune of 5,970,981/= whereas the Respondent in court during examination in chief, confessed that the claim was for Kshs. 1,970,000/= or thereabout.
2. That the learned trial magistrate erred in fact and law by finding the Appellant liable for good based on unspecified invoices with figures that were not proven to correspond to the delivery and or purchase of any specified item or otherwise and the same goes to the merit and substance of the case herein as between the Appellant and the Respondent .
3. That the learned trial magistrate erred in fact in law by failing to take cognizance of the fact that there was no agreement as claimed provided by the Respondent for delivery of goods as between the Appellant and the Respondent herein .
4. That the learned trial magistrate erred in fact and law by failing to scrutinize the statements of accounts as produced by the Respondent to correspond with invoices on goods as allegedly purchased by the Appellant.
5. That the learned trial magistrate erred in law and fact by failing to appreciate that the contract issued to the Appellant was for the delivery of perishable goods and meat products , whereas the Respondent was in the business of dry goods and therefore the goods in question were not specified neither were they ascertained goods.
6. That the learned trial magistrate erred in law and fact in finding that the Appellant had made part payment whereas no evidence of such partial payment or any payment whatsoever was presented in evidence.
7. That the learned trial magistrate erred in law and in fact in finding that the Appellants were in breach of contract where there was no agreement provided to ascertain the facts herein by the Respondent.
8. That the learned trial magistrate erred in law and fact in finding that the Respondent had delivered goods to the Appellant without providing any delivery note as to the goods delivered and the same are unascertained and unidentified it any.
9. That the learned trial magistrate erred in fact and law be drawing the assumption that the LPOs raised by the County in favour of the Appellant corresponded with the unascertained and unspecified invoices from the Respondent, and the same is inconceivable and a keen observation reveals the discrepancies between the invoices quoted in the statements or account and the corresponding year with the invoices quoted in the County Government records.
10. That the learned trial magistrate erred in law and fact by finding that the Appellant was indeed liable for the claim of Kshs. 5,980,971/= whereas the same does not tally with the County Governments records and therefore fails the evidentiary threshold .
17) The appeal was canvassed by way of Written Submissions.
The Appellant’s
18) The Appellant began by reminding this court of its duty as 1 st appellate Court and that it is not bound by the findings of fact of the trial court – “that the court must reconsider the evidence, evaluate it itself and draw its own conclusions… always bearing in mind that it has neither seen nor heard the witnesses”
Selle & Anor v Associated Motor Boat Co. Ltd [1968] EA 123 & Peter vs Sunday Post Ltd [1958] EA 424 .
19) It was also submitted that this court could interfere with the findings of fact where the trial court had misapprehended the evidence, applied wrong principles/drew conclusions not supported by the evidence as was held in Abok James Odera t/a AJ Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR .
20) The appellant set down the following issues for determination.
(i) Whether the Respondent proved the existence and terms of a contract with the Appellant.
(ii) Whether delivery of specific goods and the indebtedness of Kshs. 5,970,981 were proved on the required standard.
(iii) Whether the trial court misdirected itself by shifting the burden of proof and by relying on speculative documentary inferences.
(iv) What orders should issue .
21) On whether there was a contract it was conceded that an oral contract is indeed enforceable but that he who alleges must prove as required by the Evidence Act section 107 – 109.
22) That the Plaintiff did not prove the alleged contract, the identity of parties, description/quantity of goods supplied, price and any link between the same and defendant – that there was no evidence of purchase order/LPO/any acknowledgment by defendant of any goods.
23) That the Plaintiff alleged that the goods ordered by the defendant were to be supplied to the County of Baringo – that there was no way this piece of evidence could be irrelevant in this case.
24) That according to Hahn vs Singh [1985] KLR 716 this being a claim for a debt for goods sold and delivered – it was a claim for special damages which had to be proved strictly.
25) The appellant relying on E.P Communications Ltd vs East Africa Courier Services Ltd [2019] EKLR submitted that a delivery note was primary proof of delivery, and invoices alone were insufficient as proof of receipt of goods. The same was held in the Mining Ltd vs Total Kenya Ltd [2024] eKLR .
26) The court was urged to find that the trial court misdirected itself on the evidence and set aside its Judgment.
For the Respondent
27) The respondent began by pointing out that the appellant had excluded from the record of appeal a bank statement showing that the appellant had made part payment of Ksh. 341,807 – vide bank statement dated 1/7/2019.
28) The respondent also relied on Selle & Anor v Associated Motor Boat Co. Ltd [1968] EA 123 & Peter vs Sunday Post Ltd [1958] EA 424 as cited in Njoroge Gakere & Anor [2025] KEHC 4048 (KLR) on the duty of the 1 st appellate court.
29) It was also submitted that “a party to an appeal ought not to agitate a different case from the one taken before the trial court…” AG v Okoiti & 3 others. [2025] KECA 309 KLR and further that an appellate court only interferes with the decision of the trial court where it is alleged that the trial court erred in arriving at a finding contrary to the case as presented by the appellant at the trial court. Where the trial court makes findings, which are in accord with the case as presented by the appellant, the appellant cannot be heard to complain that the trial Judge erred. ”
30) The court was also reminded of what amounts to proof on a balance of probabilities as was elucidated in William Kabogo Gitau vs George Thuo & 2 others [2010] KLR 526 – to be 51% as against 49%. He cited Lord Denning in Miller vs Minister of Pensions 1947 2 ALLER & the Court of Appeal in Mumbi M’Nabea vs David M Wachira [2016] eKLR .
“ This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not…”
31) The respondent set out the following issues for determination –
a) Whether the trial the trial court erred in finding that there was a contract and breach of contract between the parties.
b) Whether the court erred in awarding damages as it did.
c) Whether the appeal herein has merit .
32) On whether the court erred in finding that there was a contracts and breach thereof – it was submitted that section 120 of the Evidence Act defined general estopped – the respondent also cited the definition of estoppel from Black’s Law Dictionary 9 th Edition.
33) It was submitted that:-
... there was a tender awarded to the Appellant by Baringo County for the “supply and provision of food stuffs, (e.g., beef, goat, meat, mutton, chicken, eggs fruits and vegetables) under TENDER NO. BRCG/TNR/9/2019 – 2020/2022 as evidence in the notification of award dated 25 th September, 2019. Additionally, the Respondent produced a bank statement wherein on 1 st July, 2019, the Appellant made a partial payment of KES. 341,807.00 for goods received.
34) Further that the appellant had not produced any shred of evidence to support its claims that it sourced food stuff from the nearby market and that it dealt in the sale and distribution of dry goods
35) It was submitted that the appellant had failed to call any evidence to supports its denials. It was submitted that the appellant was estopped from asserting that there was no contractual relationship inferable from the conduct of parties in this case – court was referred to Nicholas King’oo Kithuka vs JAP Quantity Motors Limited & Anor [2021] eKLR :-
“Where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged."
36) The court was urged to find that E.P Communications Ltd was distinguishable from this case.
37) It is submitted that the evidence by the respondent was uncontroverted see Drapery Empire vs The AG Nairobi HCCC No. 2666 of 1996 where the court stated.
“Where the circumstances leading to the deliveries of goods are not challenged and stand uncontroverted due to the failure by defendant to adduce evidence, the standard of proof in civil cases (on the balance of probabilities) has been attained by the Plaintiff.”
38) On whether the trial court erred in awarding the Ksh 5,970,981 – the respondent cited Regal Equipment Ltd vs Mahmood Kassam Miyanji Ltd [2025] eKLR - where the court stated;
“The Plaintiff pleaded special damages of Kshs. 57,555,198.24 being the outstanding amount for machinery and equipment supplied. The Plaintiff produced documentary evidence including invoices and account statements supporting the claimed amount. The court is therefore satisfied that the Plaintiff has proved the claim for special damages to the required standard.”
39) It is submitted that the appeal has no merit.
Analysis and Determination
40) I have carefully considered the evidence on record, the submissions by counsel, the authorities cited, and the law.
41) The only issue is whether the Plaintiff established his case before the trial court to warrant the orders issued. Was there an oral contract? Did the plaintiff prove that goods were delivered and accepted by the defendants? What was the relevance of the participation of the County Government of Baringo?
42) According to the plaintiffs statement - this is how the business deal was – He states inter alia
4. The said Priscilla Tonje informed me that the Defendant Company was in the business of supply and provision of goods of general nature to various County Government including County Government of Baringo where they could supply the afore stated items would then have their payments processed by the County Government.
7. The said Priscilla Tonje on behalf of the Defendant Company, requested me to supply it with a variety of goods to enable it service a tender which he had won with the County Government of Baringo under tender number BRCG/TNR/9/2019-2020/2022 : See a copy of the Notification of Award for the tender of supply and provision of foodstuff dated 25 th September 2019 appearing at page 3 of the Bundle of document.
8. That I confirm that the Defendant Company was duly supplied with the aforementioned items on adverse dates between 16 th October 2019 and 1 st August 2021 on credit on the strength of the letter from the County Government of Baringo dated 25 th September 2019 .
43) The Plaintiff produced in Court letter dated 25/9/2019, as evidence of the award to supply the County with various food stuff.
44) The Plaintiff then annexed several pages of invoices (28 – 47 20219 – 2021 of the record of appeal
45) There was also the letter addressed to the County Treasury (Baringo) dated 1/12/2023 by counsel for the Plaintiff. The letter states:-
On 25 th September, 2019 the County awarded a tender for supply of goods to Prijolink Company Ltd under reference Number BRCG/SCM/TNR/VOL.3/308/2019-2020.
The said entity pursuant to the tender award from county obtained goods on credit from Soi Merchants on diverse dates in the months of June, 2021 all through to the month of August, 2021.
We believe the said goods were delivered to the County on the dates indicated in the catalogue herein attached. We request that you vanish us with certified copies LPO’s and invoices, shared by Prijoylink Company Limited within the period under review.
Kindly but urgently assist as the said information is required in court for purpose of ascertaining the truth of our clients claim.
46) At pages 56 to 61 of the record of appeal there are some documents bearing the format heading FY Nov 2019/2020, 2020/2021, 2021/2022, , 2022/2023,. There are the following columns
Date/Payee/LPO/LSO/Invoice/Invoice/Natureofduty/Gross/Folio
47) The payee is Prijolink it is for consumable goods. Once in a while it says “Governor’s residence”
48) Other than that, I searched the record for the alleged evidence of part payment – I found none. The plaintiff placed before court a bundle of documents – but there is no narrative – I tried to find out form the bundle of invoices other than the addressee – anything to connect the defendant with the said invoices – I found nothing. – this is because each invoice shows who made it, who it is addressed to and 5 columns stating
Date/Number/Ref./Details/Amount Paid/No./Balance
49) There is nothing in these invoices to prove that the alleged invoices are for any goods supplied to the County of Baringo. Even the documents that appear to have come from Baringo County do not create any connection between the plaintiff and the supplies made by the defendant to the Baringo County. There is no order for goods, or goods received, or invoice o receipt , any transactional documents to support the alleged supply.
50) I must state here that it is not for the court to comb through any heap of documents thrown at it by a party . It is upon a party seeking to rely on documentary evidence to demonstrate to the court how that documentary evidence supports its case. Merely placing documents on the court file and mentioning them in the written statement does not prove the case. It is upon the party to show through their own narrative how those documents support their case. In this case
51) In this case I found a bundle of invoices, a statement saying that the invoices were supported by a tender document from Baringo county , and a claim that there was evidence of part payment. – the plaintiff did not place before court any evidence to support the alleged oral agreement . There not a single order or delivery note reviewed by defendant or her agents, nothing even from the plaintiff to show that defendant collected/took anything/paid for anything with regard to the alleged tender.
52) All this goes to support the grounds of and the submissions by the appellant.
53) How does the doctrine of estoppel apply? Other than the submissions, I did not find evidence of the alleged conduct of the appellant to support the said doctrine. The respondent did not demonstrate how the doctrine was applicable to this case
54) Hence having considered the evidence on record and the submissions by counsel, the authorities cited and the law, it is my considered view that the plaintiff respondent did not prove even on a balance of probabilities the claim against the defendant / respondent. The learned trial court did not analyse the evidence presented by the plaintiff, consequently arriving at an erroneous finding unsupported by the evidence.
55) Hence, the appeal has merit. I find that the trial court was in error in finding for the plaintiff.
56) The judgment of the subordinate court is set aside in its entirety and substituted with an order dismissing the plaintiff/respondent’s suit with costs to the defendant/appellant
57) Orders accordingly.
Judgment dated, signed and delivered virtually at Kabarnet High Court this 10 th July 2026.
MUMBUA T MATHEKA
JUDGE
In the presence of :-
CA Momanyi
For defendant /appellant Kibet N/A
For plaintiff /respondent Ms. Otieno
JUDGMENT HCCA NO. E003 of 2025 Page 16 of 16
IN THE HIGH COURT OF KENYA AT KABARNET
CIVIL APPEAL NO. E009 OF 2025
PRYJOYLINK COMPANY LIMITED…………………..………APPELLANT
VERSUS
SAMUEL KIPKEU T/A SOI MERCHANTS …….……………RESPONDENT
JUDGMENT
1) In Kabarnet MCCC E038/2022 the Plaintiff’s claim in the plaint dated 18/7/2022 was for Judgment against the defendant in the following terms:-
(a) A total of Kshs. 5,970,981/=
(b) General Damages for breach of contract.
(c) Interest on (a) above from the date it was due and payable.
(d) Any other relief that this Honorable Court may deem fit to grant.
(e) Costs of (a), (b), (c).
(f) Costs and interest of this suit .
2) The Plaintiffs claim was that the Plaintiff had supplied the defendant with assorted goods valued at Ksh. 5,970,981 between 16/10/2019 & 1/8/2021.
3) That the defendant had failed to pay the same in breach of contract – particulars of which were set out as follows:-
a) False obtaining goods from the Plaintiff in the pretense that the same shall be paid for as soon as they are delivered.
b) Failing to pay for the goods received on time.
c) Despite demand and notice of intention to sue having been served, the Defendant has ignored, failed, neglected and/or refused to pay the Plaintiff.
4) The defendant through defence dated 23/9/2022 denied all the claims, and put the plaintiff to strict proof thereof.
5) The matter proceeded to hearing by way of viva voce evidence
6) Pw1 Samuel Kipkeu Aengwo testified that he was a businessman at Soi Merchants. He adopted his witness statement dated 25/7/2023 and a list of documents dated 28/7/2022. He also adopted his further list of documents dated 19/3/2023, 18/7/2024. He produced the lists as PEx 1 & Pex 2.
7) On cross-examination he told the court that the defendant was taking items from his shop. He said they had no agreement for supply. He said he knew the defendant, that she brought her manager, he said she owed him Ksh. 1,970,980. That he was asking for Ksh 5,970,981.
8) He said there were documents showing that the goods had been delivered; he said the statement was generated by the accountant. He said the money owed was over Ksh 5 million, not one million. He said the items were not delivered from the market or butchery – he said the debt accrued from 2019 to 2020. He said they worked with the defendants company. He said there was no company resolution from his company to supply the defendant.
9) On re-examination, he said he knew the defendant because they are from the same place, and as a friend, that she had paid him at other times.
10) Pw2 Samuel Cheburet testified that he was the manager at Soi Supermarket. He adopted his statement dated 25/1/2023. On cross-examination he told the court his work was to dispatch goods. That there were invoices and documents showing delivery was made to the defendant – that the defendant used to pay weekly then she stopped. That the supplies depended on the orders from the County; that sometimes they would be supplied twice a day.
11) The plaintiff closed his case.
12) Dw1 Priscilla Chebet testified that her company was the defendant. She said that her company supplied food items to Baringo County Government. She relied on her statement dated 23/9/2022 which she adopted as her evidence. She told the court she came to know the defendants when they demanded payment from her, in 2022, that she did not know them before that she said that they had no evidence to prove that she owed them Kshs. 5.9 million.
13) On cross-examination she said that the letter dated 25/9/2019 was in her possession, that she did not know how the plaintiff came to be in possession of the same – that she sourced her supplies from the Market not from Soi Supermarket; that she only knew about the claim from the plaintiffs when they made the demand from her. She closed her case.
14) Parties filed Written Submissions.
15) In a Judgment delivered on 22/1/2025, the learned trial court entered Judgment for the plaintiffs against the defendant for the sum of Ksh 5,970,981 for breach of contract plus costs and interest of the suit (sic) at court rates – (22/1/2025) and the trial court found that (1) there was a valid oral contract supported by invoices produced by the plaintiff, and that (ii) the defendant had breached the said contract.
16) Aggrieved, the defendants filed this appeal through the Memorandum of Appeal dated 17/2/2025. The grounds for the appeal were that :-
1. That the learned trial magistrate erred in fact and law by finding that the Respondent herein had a valid claim to the tune of 5,970,981/= whereas the Respondent in court during examination in chief, confessed that the claim was for Kshs. 1,970,000/= or thereabout.
2. That the learned trial magistrate erred in fact and law by finding the Appellant liable for good based on unspecified invoices with figures that were not proven to correspond to the delivery and or purchase of any specified item or otherwise and the same goes to the merit and substance of the case herein as between the Appellant and the Respondent .
3. That the learned trial magistrate erred in fact in law by failing to take cognizance of the fact that there was no agreement as claimed provided by the Respondent for delivery of goods as between the Appellant and the Respondent herein .
4. That the learned trial magistrate erred in fact and law by failing to scrutinize the statements of accounts as produced by the Respondent to correspond with invoices on goods as allegedly purchased by the Appellant.
5. That the learned trial magistrate erred in law and fact by failing to appreciate that the contract issued to the Appellant was for the delivery of perishable goods and meat products , whereas the Respondent was in the business of dry goods and therefore the goods in question were not specified neither were they ascertained goods.
6. That the learned trial magistrate erred in law and fact in finding that the Appellant had made part payment whereas no evidence of such partial payment or any payment whatsoever was presented in evidence.
7. That the learned trial magistrate erred in law and in fact in finding that the Appellants were in breach of contract where there was no agreement provided to ascertain the facts herein by the Respondent.
8. That the learned trial magistrate erred in law and fact in finding that the Respondent had delivered goods to the Appellant without providing any delivery note as to the goods delivered and the same are unascertained and unidentified it any.
9. That the learned trial magistrate erred in fact and law be drawing the assumption that the LPOs raised by the County in favour of the Appellant corresponded with the unascertained and unspecified invoices from the Respondent, and the same is inconceivable and a keen observation reveals the discrepancies between the invoices quoted in the statements or account and the corresponding year with the invoices quoted in the County Government records.
10. That the learned trial magistrate erred in law and fact by finding that the Appellant was indeed liable for the claim of Kshs. 5,980,971/= whereas the same does not tally with the County Governments records and therefore fails the evidentiary threshold .
17) The appeal was canvassed by way of Written Submissions.
The Appellant’s
18) The Appellant began by reminding this court of its duty as 1 st appellate Court and that it is not bound by the findings of fact of the trial court – “that the court must reconsider the evidence, evaluate it itself and draw its own conclusions… always bearing in mind that it has neither seen nor heard the witnesses”
Selle & Anor v Associated Motor Boat Co. Ltd [1968] EA 123 & Peter vs Sunday Post Ltd [1958] EA 424 .
19) It was also submitted that this court could interfere with the findings of fact where the trial court had misapprehended the evidence, applied wrong principles/drew conclusions not supported by the evidence as was held in Abok James Odera t/a AJ Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR .
20) The appellant set down the following issues for determination.
(i) Whether the Respondent proved the existence and terms of a contract with the Appellant.
(ii) Whether delivery of specific goods and the indebtedness of Kshs. 5,970,981 were proved on the required standard.
(iii) Whether the trial court misdirected itself by shifting the burden of proof and by relying on speculative documentary inferences.
(iv) What orders should issue .
21) On whether there was a contract it was conceded that an oral contract is indeed enforceable but that he who alleges must prove as required by the Evidence Act section 107 – 109.
22) That the Plaintiff did not prove the alleged contract, the identity of parties, description/quantity of goods supplied, price and any link between the same and defendant – that there was no evidence of purchase order/LPO/any acknowledgment by defendant of any goods.
23) That the Plaintiff alleged that the goods ordered by the defendant were to be supplied to the County of Baringo – that there was no way this piece of evidence could be irrelevant in this case.
24) That according to Hahn vs Singh [1985] KLR 716 this being a claim for a debt for goods sold and delivered – it was a claim for special damages which had to be proved strictly.
25) The appellant relying on E.P Communications Ltd vs East Africa Courier Services Ltd [2019] EKLR submitted that a delivery note was primary proof of delivery, and invoices alone were insufficient as proof of receipt of goods. The same was held in the Mining Ltd vs Total Kenya Ltd [2024] eKLR .
26) The court was urged to find that the trial court misdirected itself on the evidence and set aside its Judgment.
For the Respondent
27) The respondent began by pointing out that the appellant had excluded from the record of appeal a bank statement showing that the appellant had made part payment of Ksh. 341,807 – vide bank statement dated 1/7/2019.
28) The respondent also relied on Selle & Anor v Associated Motor Boat Co. Ltd [1968] EA 123 & Peter vs Sunday Post Ltd [1958] EA 424 as cited in Njoroge Gakere & Anor [2025] KEHC 4048 (KLR) on the duty of the 1 st appellate court.
29) It was also submitted that “a party to an appeal ought not to agitate a different case from the one taken before the trial court…” AG v Okoiti & 3 others. [2025] KECA 309 KLR and further that an appellate court only interferes with the decision of the trial court where it is alleged that the trial court erred in arriving at a finding contrary to the case as presented by the appellant at the trial court. Where the trial court makes findings, which are in accord with the case as presented by the appellant, the appellant cannot be heard to complain that the trial Judge erred. ”
30) The court was also reminded of what amounts to proof on a balance of probabilities as was elucidated in William Kabogo Gitau vs George Thuo & 2 others [2010] KLR 526 – to be 51% as against 49%. He cited Lord Denning in Miller vs Minister of Pensions 1947 2 ALLER & the Court of Appeal in Mumbi M’Nabea vs David M Wachira [2016] eKLR .
“ This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not…”
31) The respondent set out the following issues for determination –
a) Whether the trial the trial court erred in finding that there was a contract and breach of contract between the parties.
b) Whether the court erred in awarding damages as it did.
c) Whether the appeal herein has merit .
32) On whether the court erred in finding that there was a contracts and breach thereof – it was submitted that section 120 of the Evidence Act defined general estopped – the respondent also cited the definition of estoppel from Black’s Law Dictionary 9 th Edition.
33) It was submitted that:-
... there was a tender awarded to the Appellant by Baringo County for the “supply and provision of food stuffs, (e.g., beef, goat, meat, mutton, chicken, eggs fruits and vegetables) under TENDER NO. BRCG/TNR/9/2019 – 2020/2022 as evidence in the notification of award dated 25 th September, 2019. Additionally, the Respondent produced a bank statement wherein on 1 st July, 2019, the Appellant made a partial payment of KES. 341,807.00 for goods received.
34) Further that the appellant had not produced any shred of evidence to support its claims that it sourced food stuff from the nearby market and that it dealt in the sale and distribution of dry goods
35) It was submitted that the appellant had failed to call any evidence to supports its denials. It was submitted that the appellant was estopped from asserting that there was no contractual relationship inferable from the conduct of parties in this case – court was referred to Nicholas King’oo Kithuka vs JAP Quantity Motors Limited & Anor [2021] eKLR :-
“Where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged."
36) The court was urged to find that E.P Communications Ltd was distinguishable from this case.
37) It is submitted that the evidence by the respondent was uncontroverted see Drapery Empire vs The AG Nairobi HCCC No. 2666 of 1996 where the court stated.
“Where the circumstances leading to the deliveries of goods are not challenged and stand uncontroverted due to the failure by defendant to adduce evidence, the standard of proof in civil cases (on the balance of probabilities) has been attained by the Plaintiff.”
38) On whether the trial court erred in awarding the Ksh 5,970,981 – the respondent cited Regal Equipment Ltd vs Mahmood Kassam Miyanji Ltd [2025] eKLR - where the court stated;
“The Plaintiff pleaded special damages of Kshs. 57,555,198.24 being the outstanding amount for machinery and equipment supplied. The Plaintiff produced documentary evidence including invoices and account statements supporting the claimed amount. The court is therefore satisfied that the Plaintiff has proved the claim for special damages to the required standard.”
39) It is submitted that the appeal has no merit.
Analysis and Determination
40) I have carefully considered the evidence on record, the submissions by counsel, the authorities cited, and the law.
41) The only issue is whether the Plaintiff established his case before the trial court to warrant the orders issued. Was there an oral contract? Did the plaintiff prove that goods were delivered and accepted by the defendants? What was the relevance of the participation of the County Government of Baringo?
42) According to the plaintiffs statement - this is how the business deal was – He states inter alia
4. The said Priscilla Tonje informed me that the Defendant Company was in the business of supply and provision of goods of general nature to various County Government including County Government of Baringo where they could supply the afore stated items would then have their payments processed by the County Government.
7. The said Priscilla Tonje on behalf of the Defendant Company, requested me to supply it with a variety of goods to enable it service a tender which he had won with the County Government of Baringo under tender number BRCG/TNR/9/2019-2020/2022 : See a copy of the Notification of Award for the tender of supply and provision of foodstuff dated 25 th September 2019 appearing at page 3 of the Bundle of document.
8. That I confirm that the Defendant Company was duly supplied with the aforementioned items on adverse dates between 16 th October 2019 and 1 st August 2021 on credit on the strength of the letter from the County Government of Baringo dated 25 th September 2019 .
43) The Plaintiff produced in Court letter dated 25/9/2019, as evidence of the award to supply the County with various food stuff.
44) The Plaintiff then annexed several pages of invoices (28 – 47 20219 – 2021 of the record of appeal
45) There was also the letter addressed to the County Treasury (Baringo) dated 1/12/2023 by counsel for the Plaintiff. The letter states:-
On 25 th September, 2019 the County awarded a tender for supply of goods to Prijolink Company Ltd under reference Number BRCG/SCM/TNR/VOL.3/308/2019-2020.
The said entity pursuant to the tender award from county obtained goods on credit from Soi Merchants on diverse dates in the months of June, 2021 all through to the month of August, 2021.
We believe the said goods were delivered to the County on the dates indicated in the catalogue herein attached. We request that you vanish us with certified copies LPO’s and invoices, shared by Prijoylink Company Limited within the period under review.
Kindly but urgently assist as the said information is required in court for purpose of ascertaining the truth of our clients claim.
46) At pages 56 to 61 of the record of appeal there are some documents bearing the format heading FY Nov 2019/2020, 2020/2021, 2021/2022, , 2022/2023,. There are the following columns
Date/Payee/LPO/LSO/Invoice/Invoice/Natureofduty/Gross/Folio
47) The payee is Prijolink it is for consumable goods. Once in a while it says “Governor’s residence”
48) Other than that, I searched the record for the alleged evidence of part payment – I found none. The plaintiff placed before court a bundle of documents – but there is no narrative – I tried to find out form the bundle of invoices other than the addressee – anything to connect the defendant with the said invoices – I found nothing. – this is because each invoice shows who made it, who it is addressed to and 5 columns stating
Date/Number/Ref./Details/Amount Paid/No./Balance
49) There is nothing in these invoices to prove that the alleged invoices are for any goods supplied to the County of Baringo. Even the documents that appear to have come from Baringo County do not create any connection between the plaintiff and the supplies made by the defendant to the Baringo County. There is no order for goods, or goods received, or invoice o receipt , any transactional documents to support the alleged supply.
50) I must state here that it is not for the court to comb through any heap of documents thrown at it by a party . It is upon a party seeking to rely on documentary evidence to demonstrate to the court how that documentary evidence supports its case. Merely placing documents on the court file and mentioning them in the written statement does not prove the case. It is upon the party to show through their own narrative how those documents support their case. In this case
51) In this case I found a bundle of invoices, a statement saying that the invoices were supported by a tender document from Baringo county , and a claim that there was evidence of part payment. – the plaintiff did not place before court any evidence to support the alleged oral agreement . There not a single order or delivery note reviewed by defendant or her agents, nothing even from the plaintiff to show that defendant collected/took anything/paid for anything with regard to the alleged tender.
52) All this goes to support the grounds of and the submissions by the appellant.
53) How does the doctrine of estoppel apply? Other than the submissions, I did not find evidence of the alleged conduct of the appellant to support the said doctrine. The respondent did not demonstrate how the doctrine was applicable to this case
54) Hence having considered the evidence on record and the submissions by counsel, the authorities cited and the law, it is my considered view that the plaintiff respondent did not prove even on a balance of probabilities the claim against the defendant / respondent. The learned trial court did not analyse the evidence presented by the plaintiff, consequently arriving at an erroneous finding unsupported by the evidence.
55) Hence, the appeal has merit. I find that the trial court was in error in finding for the plaintiff.
56) The judgment of the subordinate court is set aside in its entirety and substituted with an order dismissing the plaintiff/respondent’s suit with costs to the defendant/appellant
57) Orders accordingly.
Judgment dated, signed and delivered virtually at Kabarnet High Court this 10 th July 2026.
MUMBUA T MATHEKA
JUDGE
In the presence of :-
CA Momanyi
For defendant /appellant Kibet N/A
For plaintiff /respondent Ms. Otieno
JUDGMENT HCCA NO. E003 of 2025 Page 16 of 16