https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10241

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCCA/E210/2025 COLLINS ONYANGO COLLJUSTO AUTO GARAGE VS KATOLO MIXED SEC SCHOOL AND B.O.M KATOLO MIXED SEC SCHOOL AND 2 OTHERS JUDGMENT ***(Being an Appeal from the Judgment and Decree of the Hon. Edina Nyboke Angima (Esq), Nyando Law Courts in Nyando MCCC No. E064 of 2025 delivered on 24th September, 2025)*** # INTRODUCTION/ FACTS OF THE CASE * 1. The Plaintiff, vide a Plaint dated 10th April 2025, instituted a suit against the Defendants seeking: a declaration that the defendants are bound to payout to the Plaintiff Kshs. 678,180/= being the outstanding amount for services offered and goods supplied to the Defendants; damages for breach of contract; interest on the outstanding amount; cost of the suit; and any other relief the Honourable court would deem and appropriate to grant. 2. The background of the claim is that in 2022, the Plaintiff entered into a contract for supply of various goods and services with the Defendants where the Plaintiff supplied goods as agreed between parties. However, the Defendants failed to pay the Plaintiff for the goods and services supplied to an outstanding amount of Kshs. 678,180/=. * 1. The Defendants despite being served with the pleadings and an Affidavit of Service to that effect being filed before the trial court, neither entered Appearance nor attended court on 13/8/2025 for purposes of hearing of the main suit. 2. The matter came up for formal proof hearing on 13/8/2025 before the trial court, wherein the Appellant presented his case and proceeded to close both the Appellant’s and the Respondents’ cases. The parties were thereafter directed to file their submissions, and thereafter, judgment was entered in favour of the Respondents on 24/9/2025. 3. The court delivered its judgment on 24th September 2025, holding that, the Plaintiff was not entitled to reliefs sought, that the suit had failed and therefore dismissed, and that the Plaintiff to bear his own costs of suit. 1. Being dissatisfied with the judgment of the trial court, the Plaintiff lodged the present appeal vide a Memorandum of Appeal dated 29th September 2025, raising the following grounds: - 1. *That the learned trial magistrate erred in law and fact by grossly misdirecting herself in treating superficially the evidence and submissions on record more so the Appellant’s and consequently arriving at a wrong decision by dismissing the Appellant’s suit.* 2. *The learned trial magistrate erred in law and fact by finding that the Appellant did not prove that he delivered the goods/services to the Respondents, despite the same court acknowledging that the parties entered into a contract as evidenced on the local service order dated 10/5/2023, and that the same was authorized as is evidenced by the accounts stamp and signature of the institution’s Principal.* 3. *The learned trial magistrate erred in law and fact by finding that the value of the goods/services recorded on local order dated 10/5/2023 is a sum of Kshs.80,280 and not the amount claimed by the Appellant being Kshs. 597,900/=* 4. *The learned trial magistrate erred in law and fact by also failing to award the Appellant the value of the goods/service recorded on the local service order dated 10/5/2023 being a sum of Kshs. 80,280, despite* *acknowledging that the same was recorded on the local serve order dated 10/5/2023* * 1. *The learned trial magistrate erred in law and fact by finding that the Appellant only filed two invoices that have no indication whatsoever that they were even presented to the Respondents, despite the same court acknowledging that the parties entered a contract as evidenced on the local service order dated 10/5/2023, and that the same was authorized as is evidenced by the accounts stamp and signature of the institution’s Principal.* 2. *The learned trial magistrate erred in law and fact by finding that the Appellant did not prove paragraphs 11, 12 & 13 of the Statement of Claim.* 3. *The learned trial magistrate erred in law and fact by not finding that the invoices were presented to the Respondents but they declined to stamp and sign on the Appellant’s service copies.* 4. *The learned trial magistrate erred in law and fact by finding that the invoices were not presented to the Respondents. The question is, how did she know that the invoices were not presented to the Respondents?* 5. *The learned trial magistrate erred in law and fact by applying the wrong principles and misapprehending the evidence on record that she arrived at a wrong decision by dismissing the Appellant’s suit before the trial court.* 6. *The learned trial magistrate erred in law and fact in not evaluating the evidence tendered judiciously.* 7. *The learned trial magistrate erred in law and fact by finding that the Appellant did not prove his case to the required standard.* 1. The appeal was canvassed by way of written submissions. Before delving into the submissions of both parties, this court notes that, being the first appellate court, it is required under Section 78 of the Civil Procedure Act and as was held in ***Selle v. Associated Motor Boat Co. Ltd [1969] E.A 123***, to re-evaluate, re-assess and analyse the evidence adduced before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witness when they testified # SUBMISSIONS BY PARTIES ## Appellant’s Submissions 1. The Appellant submitted themselves on four issues. They framed their first issue as whether there was a contract between parties. The Appellant submitted that, sometimes in 2022, the Appellant and Respondents entered into an agreement for supply of goods and offering of services. In support of this position, the Appellant produced a Local Service Order dated 10th May 2023 addressed to the Appellant by the Respondents: and invoices dated 10/5/2023 and 2/10/2022 attached on pages 11,12 &13 of the Record of Appeal. 2. The Appellant submitted that the Respondents requested them to repair and service various vehicles namely KCE 800T & KBU 800T, an offer they accepted and undertook. Thereafter, the Appellant raised invoices amounting to Kshs. 678,180/= which were forwarded to the Respondents for payment, but the Respondents refused to pay, thus breaching the contract. 3. The Appellant contended that, no contrary evidence was tendered to that effect, and prayed the court to find that there existed a contract between them and the Respondents, and that they’re entitled to payment of Kshs. 678,180/= from the Respondents. 4. The Appellant’s second issue was whether there was a breach of contract by the Respondents. The Appellant submitted that in 2022, they entered into a contract with the Respondents for the provision of motor vehicle repair and related services, including mechanical works, panel beating, spraying, painting, electrical works, modifications, and cushioning. They contended that they duly rendered the agreed services but the Respondents failed to pay the outstanding sum of Khs**. 678,180/=,** despite acknowledging the debt and repeatedly promising to settle it. 1. The Appellant further submitted that, although the Respondents invited them for settlement discussions and indicated that the relevant documents had been forwarded for approval, the Respondents subsequently refused, neglected, and/or ignored their obligation to pay the outstanding amount. According to the Appellant, this conduct amounted to **breach of contract**, **unjust enrichment**, and **fraud**. 1. The Appellant submitted that the Respondents breached the contract by failing to honour its terms and by refusing to pay for the goods supplied and services rendered. In support of their position, they relied on *Arch Joel Kateregga & Another v Uganda Post Limited*, where the court held that a breach of contract occurs when one or both parties fail to perform their contractual obligations. 1. The Appellant further relied on *National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd (2002)* and *Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd (2017)* for the proposition that courts cannot rewrite contracts for parties and must enforce the terms voluntarily agreed upon. 2. Additionally, the Appellant cited *Gatobu M’Ibuutu Karatho v Christopher Muriithi Kubai (Meru Civil Appeal No. 78 of 2006) (2014)* and *Nakana Trading Co. Ltd v Coffee Marketing Board (1990–1994) EA 448*, submitting that where a contract has been reduced into writing, the court’s duty is to interpret and apply its plain and unambiguous terms to the existing facts, and no evidence should be admitted to vary those terms. 3. On the basis of the foregoing, the Appellant maintained that the Respondents were in breach of the contract and were consequently liable to pay the outstanding sum of **Kshs. 678,180**/=, together with the reliefs sought in the appeal. 1. The Appellants third issue was whether the claim for special damages was specifically pleaded and proved. The Appellant reiterated the existence of the contract entered into with the Respondents in 2022 for the provision of motor vehicle repair and servicing services, under which they were to repair the Respondents’ vehicles upon request and be paid upon issuance of invoices. They contended that, pursuant to the agreement, they repaired motor vehicles **KCE 800T** and **KBU 800T** and thereafter raised invoices amounting to **Kshs.** **678,180**/=. Despite the services having been rendered, the Respondents failed and/or refused to settle the outstanding amount, thereby breaching the contract. 1. The Appellant further submitted that the claim for **special damages** was specifically pleaded and strictly proved through the invoices and supporting documents contained at pages 11, 12, and 13 of the Record of Appeal dated 13/11/2025. 2. In support of their submissions, the Appellant relied on *Interchemie EA Limited v Nakuru Veterinary Centre Limited, Nairobi (Milimani) HCCC No. 1658 of 2000*, where the court held that where no witness is called on behalf of the defendant, the plaintiff’s evidence remains uncontroverted. They also relied on *Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR,* wherein the court emphasized that although uncontroverted evidence is not automatically accepted as truthful, a plaintiff must nevertheless prove their case on a balance of probabilities. 3. Accordingly, the Appellant maintained that they had sufficiently proved the supply of goods and services as well as the Respondents’ failure to pay the invoiced sum of **Kshs. 678,180/=,** thereby entitling them to the special damages claimed. 1. The Appellant framed the last issue as who should meet the cost of this suit. The Appellant submitted that, since the issue of costs follows events, there was no reason for this court to depart from the general principle and prayed that the Appellant’s suit be allowed with costs. ## Respondent’s Submissions 1. The Respondents had not filed their submissions by the time of writing the judgement herein. 2. In the circumstances, I have considered the appeal from both the Appellant and the Respondents and I therefore wish to have the following as issues for determination; # ISSUES FOR DETERMINATION 1. Whether there existed a valid contract between the Appellant and the Respondents and the terms thereof 2. Whether the Appellant proved performance by supplying the goods and services to the Respondents 3. Whether the Respondents breached the contract by failing to pay the sum of Kshs. 678,180/= 4. Whether the trial court properly evaluated the evidence on record 1. Whether the Appellant is entitled to the reliefs sought and costs # ANALYSIS AND DETERMINATION ## Whether there existed a valid contract between the Appellant and the Respondents and the terms thereof 1. In determining whether a valid contract existed between the parties, this court is guided by the fundamental principles of contract law that a binding agreement is formed where there is offer, acceptance, consideration, and intention to create legal relations. The existence and legal effect of documentary evidence, particularly the Local Service Order dated 10th May 2023, is central to this issue. 2. Upon re-evaluation of the record, it is evident that the Appellant relied on a Local Service Order issued by the Respondents, duly stamped and signed by the institution’s authorized officers, together with invoices raised thereafter. These documents demonstrate that the Respondents requested services which the Appellant accepted and executed. 3. The Court of Appeal in *Peters v Sunday Post Ltd [1958] EA 424* emphasized that an appellate court must reconsider the evidence and make its own independent conclusions, while bearing in mind that it did not hear the witnesses. Guided by that principle, this court has carefully reconsidered the entire record. 4. This court is therefore satisfied and **finds as a fact and in law that a valid and binding contractual relationship existed between the Appellant and the Respondents**, arising from the Local Service Order and the subsequent conduct of the parties. 1. Further, in *National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd [2001] eKLR*, the court reaffirmed that courts are bound to give effect to the clear terms of a contract and cannot rewrite agreements for parties. In the present case, the Local Service Order constituted the operative contract between the parties, setting out the basis upon which services were to be rendered and payment effected upon invoicing. 1. Accordingly, the court finds that the terms of the contract were clear, binding, and enforceable, and the parties were fully bound by the obligations therein. ## Whether the Appellant proved performance by supplying the goods and services to the Respondents 1. The next issue is whether the Appellant proved performance of its contractual obligations. The legal burden of proof lies on the party asserting a fact, as provided under Sections 107 and 109 of the Evidence Act. 2. The Appellant produced invoices and supporting documents showing that vehicles KCE 800T and KBU 800T were repaired and serviced. These documents were not rebutted by any evidence from the Respondents, who neither entered appearance nor participated in the proceedings. 3. In ***Trust Bank Limited v Paramount Universal Bank Limited & 2 Others [2009] eKLR***, the court held that unchallenged evidence may form the basis of a court’s finding where it is credible and consistent. Similarly, in ***Kenya Power & Lighting Company Limited v Samuel Kirimi M’Mbijjewe [2018] eKLR***, the court reiterated that while uncontroverted evidence must still meet the standard of proof, it cannot be disregarded without basis. 4. In this case, the documentary evidence adduced by the Appellant was cogent and consistent. The court is therefore satisfied that the Appellant proved, on a balance of probabilities, that the services were rendered as pleaded. **Whether the Respondents breached the contract by failing to pay the sum of Kshs. 678,180/=** 1. Having established the existence of a contract and performance by the Appellant, the court must determine whether there was breach by the Respondents. 1. The Appellant demonstrated that upon completion of the works, invoices amounting to Kshs. 678,180/= were raised and forwarded for payment, yet no settlement was made. 2. The Court of Appeal in ***Hahn v Singh [1985] KLR 716*** held that breach of contract arises where a party, without lawful justification, fails to perform its obligations under the agreement. Further, in ***Fina Bank Ltd v Spares & Industries Ltd [2000] eKLR***, the court reiterated that contractual obligations must be honoured as agreed and courts will enforce clear terms of agreement. 3. In the present case, the Respondents’ failure to settle the invoiced amount constituted a clear breach of contract. The Appellant was therefore entitled to payment of the sum claimed. ## Whether the trial court properly evaluated the evidence on record 1. As a first appellate court, this court is under a duty to re-evaluate, re-analyse, and re-assess the entire evidence on record and draw its own independent conclusions, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify, as set out in Selle v Associated Motor Boat Co. Ltd [1968] EA 123. 2. Upon such re-evaluation, this court finds that the trial court failed to give adequate weight to the documentary evidence presented by the Appellant, particularly the Local Service Order and invoices, which formed the foundation of the contractual claim. The Local Service Order, being a document issued by the Respondents and duly stamped and signed by their authorized officers, was prima facie evidence of both instruction and authorization to undertake the works in question. Similarly, the invoices produced by the Appellant were consistent with the pleaded claim and were not challenged by any contrary documentary or oral evidence. 3. The trial court, however, appears to have treated the claim as largely unproven on the basis of perceived evidential gaps, without giving sufficient judicial consideration to the legal effect of the documentary exhibits on record. In particular, the court placed undue emphasis on the absence of corroborating testimony from the Respondents, despite the fact that the documentary evidence already before the court was clear, material, and uncontroverted. This amounted to a failure to properly interrogate the probative value of primary documentary evidence, which under the law is capable of independently proving a claim where it is credible and consistent. 1. The Court of Appeal in *Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR* held that an appellate court is entitled to interfere with the findings of a trial court where it is demonstrated that the court failed to properly evaluate the evidence on record, misapprehended material facts, or reached conclusions not supported by the evidence. 2. In the present case, the failure by the trial court to properly engage with and give due evidential weight to the Local Service Order and invoices resulted in a misapprehension of the evidentiary foundation of the claim. Had the trial court properly considered the documentary record in its totality, it would have reached a different conclusion on liability and proof of the claim. ## Whether the Appellant is entitled to the reliefs sought and costs 1. Having found that a valid contract existed, that the Appellant performed its obligations, and that the Respondents breached the contract, it follows that the Appellant is entitled to judgment for the sum of Kshs. 678,180/=. 2. On costs, the general principle as stated in ***Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR*** is that costs follow the event unless the court orders otherwise for good reason. There is no reason to depart from that principle in this case. # DISPOSITION 1. Having carefully considered the pleadings, the record of appeal, and the Appellant submissions, together with the applicable law and authorities, this court now proceeds to render its determination on the issues arising for resolution in this appeal as thus; 1. The Appeal succeeds. 2. The Judgment and Decree of the learned trial magistrate in Nyando MCCC No. E064 of 2025 delivered on 24th September 2025 is hereby set aside in its entirety. 3. In substitution thereof, Judgement is hereby entered in favour of the Appellant against the Respondents jointly and severally for the sum of Kshs. 678,180/= being the contract sum. 4. The Appellant shall have interest on the decretal sum at court rates from the date of filing suit until payment in full. 5. The Appellant shall have the cost of this Appeal and the costs of the suit before the trial court It is so ordered. SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Civil Date: 2026-07-13 22:20:50