1. The Appellant instituted a suit against the Respondent in the Small Claims Court via a statement of claim dated 13/1/2023, seeking the sum of Kshs.264,642.00 plus costs.
2. The basis of the claim was that the Appellant supplied the Respondent with goods as captured in invoices of diverse dates between 6/4/2022 to 12/12/2022. The Appellant stated that there was an unwritten agreement between the parties that the price would be paid within a reasonable time; however, the Respondent defaulted in making payments. In its defence, the Respondent denied having any business relationship with the Appellant.
3. Upon consideration, the trial court found that there was no evidence that the goods were supplied to the Respondent, as the invoices produced were addressed to Uchumi Selection Stores, which was a different entity. The court went ahead to strike out the claim with no order as to costs.
4. The Appellant, being dissatisfied with the aforementioned decision, appealed against it on the following grounds: -
i. That the trial magistrate fell in grave error of law and fact by failing to recognize the burden of proof on the Respondent to provide evidence of payment, as the Appellant had already established the delivery of goods through the invoices and the Respondent's acceptance thereof as opposed to the Evidence Act, Cap 80.
ii. That the trial magistrate erred in concluding that the Respondent was not the same entity as Uchumi Selection Stores, despite the clear indication on the invoices and the Respondent's acceptance of the goods under the same name.
iii. That the court failed to draw reasonable inferences from the conduct of the parties, as evidenced by the Respondent's acceptance of delivery by signing and stamping the invoices. The court ought to have concluded that a valid contract for the sale of goods existed between the parties.
iv. That the trial magistrate erred in fact and in law by disregarding and failing to consider the submissions of the Appellant.
5. Based on the grounds of appeal, the Appellant implored this Court to issue the following orders:-
a) The appeal be allowed and Judgment and Decree of the lower court dated 23rd June 2022 be set aside; and this Honorable Court be pleased to enter Judgement in favor of the Appellant for the sum of Kshs. 264,642/-.
b) The Appellant’s suit in the Lower Court be allowed as prayed.
c) The costs of this Appeal be awarded to the Appellant.
6. In support of this appeal, the Appellant filed a record of appeal, a supplementary record of appeal, and written submissions dated 21/7/2023, 19/2/2025, and 13/2/2024, respectively.
7. Despite proof of service, the Respondent failed to participate in this appeal and did not file any pleadings in opposition.
Analysis and determination.
8. I have carefully considered the Appellant’s memorandum of appeal, the record of appeal, and the submissions filed. In my view, the sole issue for determination is whether the trial magistrate erred in finding that the Appellant failed to prove its case against the Respondent, and in holding that the Respondent was not the same entity as Uchumi Selection Stores.
9. As pointed out hereinabove, the Appellant’s case was that it supplied various goods to the Respondent, which were not paid for. To prove this, the Appellant provided invoices of the goods supplied, which invoices were stamped by the Respondent herein.
10. The invoices and credit notes are provided from pages 12-21 in the record of appeal, and I have had the opportunity to analyse them. They are addressed to ‘Uchumi Selection Store’ whose address is in Molo Town, Kenya. The invoices bear the stamp ‘Uchumi Selection Stores P.O Box 795 MOLO.’
11. It is a settled principle of law that he who alleges must prove. This is enshrined under section 107 of the Evidence Act. In the case of Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015]eKLR, the late Majanja J held:-
“…As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107 (1) of the Evidence Act (Chapter 80 of the Law of Kenya), which provides: “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…”
12. In this case, the burden of proving that the goods were received by the Respondent fell squarely on the Appellant, then a Claimant. However, the invoices produced in evidence are not addressed to the Respondent herein, nor are they received by it. Instead, they are received as stamped by ‘Uchumi Selection Store’, which is not the same entity as the Respondent, who is Uchumi Selection Stores Limited.
13. Although the names of the two entities are similar and both operate in Molo, it is evident that one is a limited liability company while the other is merely a registered business name. The burden lay with the Appellant to establish that the two are either the same entity or closely related. For example, the Appellant ought to have produced evidence showing that the proprietors of Uchumi Selection Store are also the shareholders or directors of Uchumi Selection Stores Limited, or that the business name subsequently transitioned into the limited company. No such evidence was produced in this case.
14. In the absence of such cogent evidence, I am of the view that the Appellant did not prove its case on a balance of probability before the trial court and the court did not err in concluding that the Respondent was not the same entity as Uchumi Selection Stores.
15. I therefore find no reason to interfere with the finding of the lower court. The appeal before me is dismissed with no order of costs as the Respondent did not participate in these proceedings.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Odhiambo h/b fpr Onyango………for the Appellant
N/A…………………. ……..for Respondent
2. The basis of the claim was that the Appellant supplied the Respondent with goods as captured in invoices of diverse dates between 6/4/2022 to 12/12/2022. The Appellant stated that there was an unwritten agreement between the parties that the price would be paid within a reasonable time; however, the Respondent defaulted in making payments. In its defence, the Respondent denied having any business relationship with the Appellant.
3. Upon consideration, the trial court found that there was no evidence that the goods were supplied to the Respondent, as the invoices produced were addressed to Uchumi Selection Stores, which was a different entity. The court went ahead to strike out the claim with no order as to costs.
4. The Appellant, being dissatisfied with the aforementioned decision, appealed against it on the following grounds: -
i. That the trial magistrate fell in grave error of law and fact by failing to recognize the burden of proof on the Respondent to provide evidence of payment, as the Appellant had already established the delivery of goods through the invoices and the Respondent's acceptance thereof as opposed to the Evidence Act, Cap 80.
ii. That the trial magistrate erred in concluding that the Respondent was not the same entity as Uchumi Selection Stores, despite the clear indication on the invoices and the Respondent's acceptance of the goods under the same name.
iii. That the court failed to draw reasonable inferences from the conduct of the parties, as evidenced by the Respondent's acceptance of delivery by signing and stamping the invoices. The court ought to have concluded that a valid contract for the sale of goods existed between the parties.
iv. That the trial magistrate erred in fact and in law by disregarding and failing to consider the submissions of the Appellant.
5. Based on the grounds of appeal, the Appellant implored this Court to issue the following orders:-
a) The appeal be allowed and Judgment and Decree of the lower court dated 23rd June 2022 be set aside; and this Honorable Court be pleased to enter Judgement in favor of the Appellant for the sum of Kshs. 264,642/-.
b) The Appellant’s suit in the Lower Court be allowed as prayed.
c) The costs of this Appeal be awarded to the Appellant.
6. In support of this appeal, the Appellant filed a record of appeal, a supplementary record of appeal, and written submissions dated 21/7/2023, 19/2/2025, and 13/2/2024, respectively.
7. Despite proof of service, the Respondent failed to participate in this appeal and did not file any pleadings in opposition.
Analysis and determination.
8. I have carefully considered the Appellant’s memorandum of appeal, the record of appeal, and the submissions filed. In my view, the sole issue for determination is whether the trial magistrate erred in finding that the Appellant failed to prove its case against the Respondent, and in holding that the Respondent was not the same entity as Uchumi Selection Stores.
9. As pointed out hereinabove, the Appellant’s case was that it supplied various goods to the Respondent, which were not paid for. To prove this, the Appellant provided invoices of the goods supplied, which invoices were stamped by the Respondent herein.
10. The invoices and credit notes are provided from pages 12-21 in the record of appeal, and I have had the opportunity to analyse them. They are addressed to ‘Uchumi Selection Store’ whose address is in Molo Town, Kenya. The invoices bear the stamp ‘Uchumi Selection Stores P.O Box 795 MOLO.’
11. It is a settled principle of law that he who alleges must prove. This is enshrined under section 107 of the Evidence Act. In the case of Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015]eKLR, the late Majanja J held:-
“…As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107 (1) of the Evidence Act (Chapter 80 of the Law of Kenya), which provides: “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…”
12. In this case, the burden of proving that the goods were received by the Respondent fell squarely on the Appellant, then a Claimant. However, the invoices produced in evidence are not addressed to the Respondent herein, nor are they received by it. Instead, they are received as stamped by ‘Uchumi Selection Store’, which is not the same entity as the Respondent, who is Uchumi Selection Stores Limited.
13. Although the names of the two entities are similar and both operate in Molo, it is evident that one is a limited liability company while the other is merely a registered business name. The burden lay with the Appellant to establish that the two are either the same entity or closely related. For example, the Appellant ought to have produced evidence showing that the proprietors of Uchumi Selection Store are also the shareholders or directors of Uchumi Selection Stores Limited, or that the business name subsequently transitioned into the limited company. No such evidence was produced in this case.
14. In the absence of such cogent evidence, I am of the view that the Appellant did not prove its case on a balance of probability before the trial court and the court did not err in concluding that the Respondent was not the same entity as Uchumi Selection Stores.
15. I therefore find no reason to interfere with the finding of the lower court. The appeal before me is dismissed with no order of costs as the Respondent did not participate in these proceedings.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Odhiambo h/b fpr Onyango………for the Appellant
N/A…………………. ……..for Respondent