REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
APPELLATE DIVISION
CIVIL APPEAL NO. E874 OF 2024
QUOLITY STEEL & CERA LIMITED……………..….….APPELLANT
VERUS
WILLIAM KARIUKI…………………..…….…………….RESPONDENT
( Being an appeal from the Ruling delivered by Honourable Rawlings Liluma Musiega Senior Resident Magistrate on 1 st July 2024 in Milimani Commercial court CMCC No. E2242 of 2023)
BETWEEN
QUOLITY STEEL & CERA LIMTED …………..…..……..PLAINTIFF
VERSUS
WILLIAM KARIUKI…… …………………………………. DEFENDANT
JUDGEMENT
A. Introduction
1. This appeal arises from the Judgement/decree of Hon. R.L Musiega, Senior Resident Magistrate dated 1 st July 2024, where he dismissed the appellants suit on the basis that they had not establish on a balance of probability, that they were owed Kshs 1,416,492.00/= by the respondent on account of various building materials supplied to him, in normal cause of business, but was not paid for.
2. The background to this appeal is that the appellant through their plaint dated 11 th May 2023 sued the respondent and averred that they engaged in the business of supplying and distributing building materials and that between July 2021 and November 2021, they had at the respondent’s request supplied various goods to the said respondent and raised invoices, which were acknowledged. On 6 th December, 2021 the respondent did attempt to make part payment of the amount due, by issuing a cheque of Kshs300,000/= in favour of the appellant but unfortunately the same was dishonoured.
3. Further, based on the reconciled accounts the appellant averred that the respondent owed them the sum of Kshs 1,349,040/= on account of the various building materials supplied to him pus interest thereon at 5%, which adds up to Kshs 67,452/= , bringing the total owed amount to the sum of Kshs 1,416,492.00/=. Dispute demand and notice of intention to sue being issued the respondent had failed to honour his contractual obligation and thus the appellant prayed that judgment be entered for this sum plus costs and interest.
4. In response, the respondent did file his statement of defence dated 12 th June 2023, where he categorically denied being indebted to the appellant and also added that for all goods supplied, they had paid the appellant and all their accounts had balanced. With specific reference to the bounced cheque of Kshs 300,000/= , it was his contention that the same was rejected on ground that the stamp of Equity Bank was missing, but he had later transferred the said sum directly to the appellants bank account. He therefore put the appellant to strict proof on all the issues raised in the plaint and urged the court to dismiss the said application.
B. The Trial
5. Both parties called one witness each. PW1 Priti Ravan adopted her witness statement and produced her set of documents as exhibits in support of their case. She confirmed that she did later receive the sum of Kshs 400,000/= from the respondent but the reconciled accounts still revealed that the respondent owed them the sum claimed. She thus prayed that judgment be entered in their favour for the sum claimed in the plaint. Under cross examination she confirmed that Kshs 71,950/= for invoice No 37168 was settled. She further confirmed that they had no written agreement with the respondents stipulating terms under which the goods were supplied, but insisted that without doubt, they had transacted and that the respondent did make various payments in an attempt to settle the sums owed, but had not completed the said payments nor had he attached bank statements to prove settlement of the said debt.
6. DW1, the respondent also adopted his witness statement as his evidence and produced the documents listed in his list of documents as exhibits. He confirmed that they had conducted business with the appellant for over 20 years and was certain that he did not owe them money for goods supplied. The difference in accounts may have been caused by discrepancies in the accounts held by the appellant, for which he could not be faulted. He thus prayed that the suit be dismissed.
7. Under cross examination, he clarified that he had made payments for invoices made in his favour and cleared his obligation with the Appellant. He also pointed out the some of the invoices raised, which the appellant claimed were outstanding were not made in his favour, nor had he signed the same in acknowledgement of goods supplied. He urged the court to look at the tabulation he had made in his witness statement explaining the invoices received and amounts paid as against the said invoices to find that he did not owe the appellant the sums demanded. He thus urged the court to dismiss the suit filed with costs.
8. The trial court did consider the pleadings filed, evidence adduced and parties’ submissions and found that that appellant had failed to prove their case on a balance of probability, and thus dismissed the appellants suit with costs to the respondent. Wholly dissatisfied by the said Judgment/decree the appellant did file this appeal and raised the following grounds of appeal;
a. That the learned trial Magistrate erred in law and in fact in holding that there was no book of records of the company or even an external auditor’s report from the plaintiff that the court could make a comparison with the invoices on record and the statements of Accounts provided by the Defendant. The learned Magistrate misdirected himself when there was no policy or procedure in the commercial world that requires for an Auditor’s report to be produced for the comparison of the invoices and statements of Accounts.
b. That the learned trial magistrate erred in law and in fact by failing to appreciate that the discrepancy of the amount prayed for in the plaint of Kshs 1,416,492/= and the amount of Kshs 1,045,000/= prayed for in the plaintiffs’ submissions was a difference of the interest which had accrued and still continues to accrue todate.
c. That the learned trial Magistrate erred in law and in fact by holding that the Whatupp conversation between the Appellant and the respondent were not clear as to the delivery and the amount of Kshs 580,700/= and yet the Appellants chats clearly showed that she had made delivery on 1 st October 2021.
d. That the learned trial Magistrate erred in law and in fact by failing to apricate that even though there was no written agreement that stipulated that the business would not be done on credit, the conduct of the parties in their business transactions inferred that there was a contract between them and that as a result of the conduct of the parties, the respondent was bound to pay the amount of Kshs 1,416,492/- together with the accruing interest.
e. That the learned trial Magistrate erred in law and in fact by failing to appreciate that the doctrine of estoppel could not estopp the respondent from denying that there was a business relationship between himself and the Appellant and that the respondent could not evade his contractual duty o paying the amount of Kshs 1,416,492/=.
f. That the learned trial Magistrate erred in law and in fact by failing to apricate that even though there was no written agreement between the parties that governed their business, the respondent could not be estopped from denying that he had received the construction goods from the Appellant.
g. That the learned trial Magistrate, erred in law and in fact by holding that the Appellant failed to prove that the delivery was made and payments not made, when there was overwhelming evidence on record in the form of unpaid invoices and express admission by the respondent, which clearly shows that the Appellant delivered the construction goods to the respondent and the respondent failed to make the payment for the goods received.
h. That the learned trial Magistrate erred in law and in fact by failing to consider the tallying accounts of the parties herein with regard to invoices and payments which were a clear indication of the business interactions between the Applicant and the Respondent.
i. That the learned trial Magistrate erred in law and in fact by failing to consider the Appellants evidence which clearly demonstrated that some payments which the respondent claimed to have made were duplicitous following bank reversals.
j. That the learned trail Magistrate erred in law and in fact by holding that the Appellants evidence was glared with inconsistencies and yet the learned Magistrate failed to apricate that the discrepancies of the amounts was a result of the amount of Kshs 1,416,492/- owed to the Appellant together with the unpaid interest. The difference of the total amount and the interest that accrued resulted to the learned Magistrate misdirecting himself that the Appellant was doing business sin a slapdash manner.
k. That the learned Trial Magistrate erred in law, whn he ignored the evidence and submissions made by the Appellant by misdirecting himself by calling them shaky evidence and holding that the appellant was shifting goal posts and arrived at a wrong conclusion in ruling in favour of the respondent despite overwhelming points of law and facts tilting heavily against the Respondent.
l. That the learned trial Magistrate erred in lawby holding that the evidence tendered by the appellant was shaky and yet he never gave the appellant and her witnesses the chance to clear any doubts in the mind of the court. The learned Magistrate ought to have pointed out those inconsistencies either by requiring the appellant to file further documentation or add witnesses to clear the doubts in the mind of the court.
9. The Appellant thus urged this court to find that their Appeal has merit and be pleased to set aside the judgment of the trial court dated 1 st July 2024 and enter judgment in their favour for the sum of Kshs 1,416,492/= as prayed for in the plaint.
C. ANALYSIS & DETERMINATION
10. I have considered this appeal, submissions, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being a first appeal, it is by way of a retrial and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should however bear in mind that it did not see the witnesses as they testified and give due allowance for that. (See: Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123.
11. A first appellate court is also the final court of fact and litigants are entitled to full fair independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the civil procedure Act a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph AIR 1969 Kerala 316.
12. The only issue for determination in this appeal is whether the appellant sufficiently proved their case on a balance of probability, that the respondent owed them the sum of Ksh 1,416,492/= for construction material supplied in the normal cause of business but which was not paid for.
13. The Question that arises then is what amounts to proof on a balance of probabilities. Kimaru J in William Kabogo Gitau Vs George Thuo & 2 others (2010) 1 klr 526 stated that;
“ In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleased 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 opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred.”
14. I also refer to Palace Investments Ltd Vs Geofrey Kariuki Mwnedwa & Another (2015) Eklr, Where the judges of Appeal referred to “Denning J in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 where while discussing the burden of proof had this to say;
“That degree is well settled, it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it is more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where the parties…..are equally (un)convincing, the party bearing the burden of proof will loose because the requisite standard will not have been obtained.”
15. By and large the parties books of accounts balanced for most of the goods supplied and payments made, but the key dispute revolved around goods supplied by the appellant to the respondent in September and October 2021 valued at Kshs 400,000/= and three invoices of Kshs 71,9450 (Invoice Number 37168), Kshs 580,700/= (Invoice Number 35647), and Kshs 591,050/= (Invoice Number 44899), which were not factored in the invoice schedule but was later introduced when the appellant filed their further list of documents.
16. In his defence, the respondent insisted that he had settled all the invoices raised and thus did not owe the appellant the sum claimed. Based on an independent analysis of the bank statements provided by the respondent, it clearly shows that the appellant indeed did make a payment of Kshs 100,000/= to the appellant on 27 th September 2021, and later reversed the same later on the same day. Similarly on 7 th October, 2021, the respondent did debit his account with Kshs 300,000/= made in favour of the appellant and later on the same day effected a reversal of the said amount. The respondents bank statement on page 215 of the record of appeal clearly and without doubt brings to the fore these facts and the only rational conclusion that can be made is that the said sum remained unpaid.
17. As regards the amount of Kshs 71,950 raised through the appellants Invoice Number 37168, the appellant’s director did confirm in cross examination that the same was settled. Similarly for the amount demanded of Kshs 591,050/= raised via invoice Number Invoice Number 44899 the appellant fully concurred with the respondent that the same was paid and further specifically admitted to this fact in the submissions filed before the trial court.
18. Finally on the sum demanded of Kshs 580,700/= raised vide Invoice Number 35647, though the respondent averred that he did not order the said goods from the appellant, the WhatsApp communication attached disapproves his averment and to the contrary affirms the fact that he did make an order for the said goods and was invoiced on 01.10.2021. The trove of WhatsApp massages placed on record, confirmed that the respondent would place his orders through that means of communication and would be invoiced immediately thereafter and payments made. For this specific order no payment was made and thus it can be safely assumed that the said amount remained due and owing.
D. Disposition
19. The upshot is that this Appeal is merited. The Judgment/decree of Hon R.L Musiega, Senior Resident Magistrate dated 1 st July 2024 delivered in MILIMANI COMMERICAL COURT CMCC NO E2242 OF 2023 is hereby set-aside and the Appellant’s claim is allowed in the sum of Kshs 980,700/= plus interest at court rates from the date of filing the primary suit until date of payment in full.
20. The Appellant will have costs of the primary suit and the costs of this Appeal assessed at Kshs 150,000/= all inclusive.
21. Stay of execution 45 days.
22. It is so ordered.
Judgement written, dated and signed at MARSABIT this …31st……day of MARCH 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this …31st……day of MARCH, 2026.
In the presence of;
……………N/A…………………….for Appellant
………………N/A………………….for Respondent
……………JARSO…………………….Court Assistant
[Date][Date] [Date][Date] 2222
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
APPELLATE DIVISION
CIVIL APPEAL NO. E874 OF 2024
QUOLITY STEEL & CERA LIMITED……………..….….APPELLANT
VERUS
WILLIAM KARIUKI…………………..…….…………….RESPONDENT
( Being an appeal from the Ruling delivered by Honourable Rawlings Liluma Musiega Senior Resident Magistrate on 1 st July 2024 in Milimani Commercial court CMCC No. E2242 of 2023)
BETWEEN
QUOLITY STEEL & CERA LIMTED …………..…..……..PLAINTIFF
VERSUS
WILLIAM KARIUKI…… …………………………………. DEFENDANT
JUDGEMENT
A. Introduction
1. This appeal arises from the Judgement/decree of Hon. R.L Musiega, Senior Resident Magistrate dated 1 st July 2024, where he dismissed the appellants suit on the basis that they had not establish on a balance of probability, that they were owed Kshs 1,416,492.00/= by the respondent on account of various building materials supplied to him, in normal cause of business, but was not paid for.
2. The background to this appeal is that the appellant through their plaint dated 11 th May 2023 sued the respondent and averred that they engaged in the business of supplying and distributing building materials and that between July 2021 and November 2021, they had at the respondent’s request supplied various goods to the said respondent and raised invoices, which were acknowledged. On 6 th December, 2021 the respondent did attempt to make part payment of the amount due, by issuing a cheque of Kshs300,000/= in favour of the appellant but unfortunately the same was dishonoured.
3. Further, based on the reconciled accounts the appellant averred that the respondent owed them the sum of Kshs 1,349,040/= on account of the various building materials supplied to him pus interest thereon at 5%, which adds up to Kshs 67,452/= , bringing the total owed amount to the sum of Kshs 1,416,492.00/=. Dispute demand and notice of intention to sue being issued the respondent had failed to honour his contractual obligation and thus the appellant prayed that judgment be entered for this sum plus costs and interest.
4. In response, the respondent did file his statement of defence dated 12 th June 2023, where he categorically denied being indebted to the appellant and also added that for all goods supplied, they had paid the appellant and all their accounts had balanced. With specific reference to the bounced cheque of Kshs 300,000/= , it was his contention that the same was rejected on ground that the stamp of Equity Bank was missing, but he had later transferred the said sum directly to the appellants bank account. He therefore put the appellant to strict proof on all the issues raised in the plaint and urged the court to dismiss the said application.
B. The Trial
5. Both parties called one witness each. PW1 Priti Ravan adopted her witness statement and produced her set of documents as exhibits in support of their case. She confirmed that she did later receive the sum of Kshs 400,000/= from the respondent but the reconciled accounts still revealed that the respondent owed them the sum claimed. She thus prayed that judgment be entered in their favour for the sum claimed in the plaint. Under cross examination she confirmed that Kshs 71,950/= for invoice No 37168 was settled. She further confirmed that they had no written agreement with the respondents stipulating terms under which the goods were supplied, but insisted that without doubt, they had transacted and that the respondent did make various payments in an attempt to settle the sums owed, but had not completed the said payments nor had he attached bank statements to prove settlement of the said debt.
6. DW1, the respondent also adopted his witness statement as his evidence and produced the documents listed in his list of documents as exhibits. He confirmed that they had conducted business with the appellant for over 20 years and was certain that he did not owe them money for goods supplied. The difference in accounts may have been caused by discrepancies in the accounts held by the appellant, for which he could not be faulted. He thus prayed that the suit be dismissed.
7. Under cross examination, he clarified that he had made payments for invoices made in his favour and cleared his obligation with the Appellant. He also pointed out the some of the invoices raised, which the appellant claimed were outstanding were not made in his favour, nor had he signed the same in acknowledgement of goods supplied. He urged the court to look at the tabulation he had made in his witness statement explaining the invoices received and amounts paid as against the said invoices to find that he did not owe the appellant the sums demanded. He thus urged the court to dismiss the suit filed with costs.
8. The trial court did consider the pleadings filed, evidence adduced and parties’ submissions and found that that appellant had failed to prove their case on a balance of probability, and thus dismissed the appellants suit with costs to the respondent. Wholly dissatisfied by the said Judgment/decree the appellant did file this appeal and raised the following grounds of appeal;
a. That the learned trial Magistrate erred in law and in fact in holding that there was no book of records of the company or even an external auditor’s report from the plaintiff that the court could make a comparison with the invoices on record and the statements of Accounts provided by the Defendant. The learned Magistrate misdirected himself when there was no policy or procedure in the commercial world that requires for an Auditor’s report to be produced for the comparison of the invoices and statements of Accounts.
b. That the learned trial magistrate erred in law and in fact by failing to appreciate that the discrepancy of the amount prayed for in the plaint of Kshs 1,416,492/= and the amount of Kshs 1,045,000/= prayed for in the plaintiffs’ submissions was a difference of the interest which had accrued and still continues to accrue todate.
c. That the learned trial Magistrate erred in law and in fact by holding that the Whatupp conversation between the Appellant and the respondent were not clear as to the delivery and the amount of Kshs 580,700/= and yet the Appellants chats clearly showed that she had made delivery on 1 st October 2021.
d. That the learned trial Magistrate erred in law and in fact by failing to apricate that even though there was no written agreement that stipulated that the business would not be done on credit, the conduct of the parties in their business transactions inferred that there was a contract between them and that as a result of the conduct of the parties, the respondent was bound to pay the amount of Kshs 1,416,492/- together with the accruing interest.
e. That the learned trial Magistrate erred in law and in fact by failing to appreciate that the doctrine of estoppel could not estopp the respondent from denying that there was a business relationship between himself and the Appellant and that the respondent could not evade his contractual duty o paying the amount of Kshs 1,416,492/=.
f. That the learned trial Magistrate erred in law and in fact by failing to apricate that even though there was no written agreement between the parties that governed their business, the respondent could not be estopped from denying that he had received the construction goods from the Appellant.
g. That the learned trial Magistrate, erred in law and in fact by holding that the Appellant failed to prove that the delivery was made and payments not made, when there was overwhelming evidence on record in the form of unpaid invoices and express admission by the respondent, which clearly shows that the Appellant delivered the construction goods to the respondent and the respondent failed to make the payment for the goods received.
h. That the learned trial Magistrate erred in law and in fact by failing to consider the tallying accounts of the parties herein with regard to invoices and payments which were a clear indication of the business interactions between the Applicant and the Respondent.
i. That the learned trial Magistrate erred in law and in fact by failing to consider the Appellants evidence which clearly demonstrated that some payments which the respondent claimed to have made were duplicitous following bank reversals.
j. That the learned trail Magistrate erred in law and in fact by holding that the Appellants evidence was glared with inconsistencies and yet the learned Magistrate failed to apricate that the discrepancies of the amounts was a result of the amount of Kshs 1,416,492/- owed to the Appellant together with the unpaid interest. The difference of the total amount and the interest that accrued resulted to the learned Magistrate misdirecting himself that the Appellant was doing business sin a slapdash manner.
k. That the learned Trial Magistrate erred in law, whn he ignored the evidence and submissions made by the Appellant by misdirecting himself by calling them shaky evidence and holding that the appellant was shifting goal posts and arrived at a wrong conclusion in ruling in favour of the respondent despite overwhelming points of law and facts tilting heavily against the Respondent.
l. That the learned trial Magistrate erred in lawby holding that the evidence tendered by the appellant was shaky and yet he never gave the appellant and her witnesses the chance to clear any doubts in the mind of the court. The learned Magistrate ought to have pointed out those inconsistencies either by requiring the appellant to file further documentation or add witnesses to clear the doubts in the mind of the court.
9. The Appellant thus urged this court to find that their Appeal has merit and be pleased to set aside the judgment of the trial court dated 1 st July 2024 and enter judgment in their favour for the sum of Kshs 1,416,492/= as prayed for in the plaint.
C. ANALYSIS & DETERMINATION
10. I have considered this appeal, submissions, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being a first appeal, it is by way of a retrial and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should however bear in mind that it did not see the witnesses as they testified and give due allowance for that. (See: Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123.
11. A first appellate court is also the final court of fact and litigants are entitled to full fair independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the civil procedure Act a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph AIR 1969 Kerala 316.
12. The only issue for determination in this appeal is whether the appellant sufficiently proved their case on a balance of probability, that the respondent owed them the sum of Ksh 1,416,492/= for construction material supplied in the normal cause of business but which was not paid for.
13. The Question that arises then is what amounts to proof on a balance of probabilities. Kimaru J in William Kabogo Gitau Vs George Thuo & 2 others (2010) 1 klr 526 stated that;
“ In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleased 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 opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred.”
14. I also refer to Palace Investments Ltd Vs Geofrey Kariuki Mwnedwa & Another (2015) Eklr, Where the judges of Appeal referred to “Denning J in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 where while discussing the burden of proof had this to say;
“That degree is well settled, it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it is more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where the parties…..are equally (un)convincing, the party bearing the burden of proof will loose because the requisite standard will not have been obtained.”
15. By and large the parties books of accounts balanced for most of the goods supplied and payments made, but the key dispute revolved around goods supplied by the appellant to the respondent in September and October 2021 valued at Kshs 400,000/= and three invoices of Kshs 71,9450 (Invoice Number 37168), Kshs 580,700/= (Invoice Number 35647), and Kshs 591,050/= (Invoice Number 44899), which were not factored in the invoice schedule but was later introduced when the appellant filed their further list of documents.
16. In his defence, the respondent insisted that he had settled all the invoices raised and thus did not owe the appellant the sum claimed. Based on an independent analysis of the bank statements provided by the respondent, it clearly shows that the appellant indeed did make a payment of Kshs 100,000/= to the appellant on 27 th September 2021, and later reversed the same later on the same day. Similarly on 7 th October, 2021, the respondent did debit his account with Kshs 300,000/= made in favour of the appellant and later on the same day effected a reversal of the said amount. The respondents bank statement on page 215 of the record of appeal clearly and without doubt brings to the fore these facts and the only rational conclusion that can be made is that the said sum remained unpaid.
17. As regards the amount of Kshs 71,950 raised through the appellants Invoice Number 37168, the appellant’s director did confirm in cross examination that the same was settled. Similarly for the amount demanded of Kshs 591,050/= raised via invoice Number Invoice Number 44899 the appellant fully concurred with the respondent that the same was paid and further specifically admitted to this fact in the submissions filed before the trial court.
18. Finally on the sum demanded of Kshs 580,700/= raised vide Invoice Number 35647, though the respondent averred that he did not order the said goods from the appellant, the WhatsApp communication attached disapproves his averment and to the contrary affirms the fact that he did make an order for the said goods and was invoiced on 01.10.2021. The trove of WhatsApp massages placed on record, confirmed that the respondent would place his orders through that means of communication and would be invoiced immediately thereafter and payments made. For this specific order no payment was made and thus it can be safely assumed that the said amount remained due and owing.
D. Disposition
19. The upshot is that this Appeal is merited. The Judgment/decree of Hon R.L Musiega, Senior Resident Magistrate dated 1 st July 2024 delivered in MILIMANI COMMERICAL COURT CMCC NO E2242 OF 2023 is hereby set-aside and the Appellant’s claim is allowed in the sum of Kshs 980,700/= plus interest at court rates from the date of filing the primary suit until date of payment in full.
20. The Appellant will have costs of the primary suit and the costs of this Appeal assessed at Kshs 150,000/= all inclusive.
21. Stay of execution 45 days.
22. It is so ordered.
Judgement written, dated and signed at MARSABIT this …31st……day of MARCH 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this …31st……day of MARCH, 2026.
In the presence of;
……………N/A…………………….for Appellant
………………N/A………………….for Respondent
……………JARSO…………………….Court Assistant
[Date][Date] [Date][Date] 2222