https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9671

David Engineering Ltd v Matheka (Civil Appeal 292 of 2023) [2026] KEHC 9671 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9671 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal 292 of 2023 AN Ongeri, J June 25, 2026 Between David Engineering Ltd Appellant and Peter Matheka Respondent (Being an appeal from the judgment of HON. E . K SUTER (PM) in Mavoko CMCC NO.122 of 2019 delivered on19/10/2023) Judgment 1.The trial court delivered its judgment in a dispute arising from a subcontract for the fabrication of metal structures, where the respondent claimed outstanding payment for works performed for the appellant. 2.The respondent’s claim was for Ksh. 1,737,885, being the balance of a total contract amount he asserted was Ksh. 4,337,885, against which he had received Ksh. 2,600,000. 3.The appellant admitted the existence of a contractual relationship but contended that the agreement had been mutually terminated because the respondent’s work was substandard, forcing the appellant to undertake remedial works at a cost of Ksh. 1,281,337, which they sought to recover by way of a counterclaim. 4.After a full hearing, where both parties testified and adopted their witness statements and documentary exhibits, the trial court examined the subcontract agreements on record. 5.The court found that while the respondent claimed a total contract sum of Ksh. 4,337,885 and the appellant asserted a figure of Ksh. 3,973,967, neither party’s computation was supported by the documents; upon summing all the contracts filed, the trial court found the agreed total cost to be Ksh. 3,923,766. 6.Since the respondent admitted receiving Ksh. 2,600,000, the trial court determined that the provable outstanding balance was Ksh. 1,323,766. 7.Turning to the appellant’s defence and counterclaim, the trial court observed that the appellant alleged poor workmanship, delays, and rejection of the steel structures by the client, but the appellant failed to adduce sufficient evidence to connect the alleged defects specifically to the respondent’s work. 8.The trial court found that numerous emails between the appellant’s witness, its employees, and its client were not copied to the respondent, and no written notification of any breach or poor workmanship was ever communicated to the respondent. 9.The respondent consistently testified that he was never informed of any shortcomings, nor did he visit the site to verify the complaints. 10.The appellant’s witness conceded in cross-examination that the respondent was not copied on any emails and that there was no written document evidencing the alleged poor workmanship or any agreement that the appellant would undertake repairs at the respondent’s cost. 11.The trial court found that the appellant bore the burden of proving that the respondent’s work was rejected, that the respondent was notified, and that the parties mutually agreed to deduct repair costs from the respondent’s dues, but the appellant failed to discharge that burden. 12.The trial court also found that while the appellant claimed security reasons prevented obtaining proof of the respondent’s site visit, the appellant could have called other employees to corroborate its witness’s testimony, yet it did not. 13.Consequently, the trial court held that the respondent had proved his case for the admitted balance of Ksh. 1,323,766. 14.The appellant’s counterclaim was dismissed for lack of proof. On costs, the trial court applied the principle that costs follow the event, as provided under Section 27(1) of the Civil Procedure Act, and awarded costs to the respondent. 15.The trial court accordingly entered judgment for the respondent for Ksh. 1,323,766 with interest at court rates from the date of filing the suit, plus costs. 16.The appellant has appealed against the said judgment on the following grounds;i.That the Learned Magistrate erred in law and fact by shifting the burden of proof to the Appellant despite the Respondent failing to discharge its own burden.ii.That the Learned Magistrate erred in fact and law by finding that the court could not determine whether the Respondent performed the poorly executed steelworks, thereby deciding an issue not pleaded, contested, or arising at trial.iii.That the Learned Magistrate erred in fact and law by holding that the Appellant should have called one of his employees to corroborate his testimony, even though the documentary evidence produced was sufficient.iv.That the Learned Magistrate erred in fact and law by dismissing the Appellant’s counterclaim.v.That the Learned Magistrate erred in fact and law by failing to find that the relationship between the parties was cordial, thus explaining the absence of formal communication between them.vi.That the Learned Magistrate erred in fact and law by finding that no communication on breach was made to the Respondent.vii.That the Learned Magistrate erred in law and fact by disregarding the Appellant’s unrebutted testimony and evidence when reaching her decision 17.The parties filed written submissions as follows; The appellant submitted that he is challenging the trial court's judgment that had found in favour of the respondent. 18.The appellant argues that the learned magistrate erred in law and fact by shifting the burden of proof to the appellant when the respondent had not discharged its own burden. 19.The appellant asserts that the burden of proof in civil claims rests on the person who asserts, as provided under sections 107 and 109 of the Evidence Act, Cap 80 Laws of Kenya, and that a party need only prove its case on a balance of probabilities, not beyond reasonable doubt. 20.The appellant cites the case of Kyalo Elly Joy v Samuel Gitahi Kanyeri (2021) eKLR, which quoted Kimaru J. in William Kabogo Gitau v George Thuo & 2 Others (2010) 1 KLE 526, stating that a party establishes a case on a balance of probabilities if it persuades the court that its allegations are more likely than not to have occurred, in percentage terms 51% as opposed to 49%. 21.The appellant also relies on Lord Nicholls of Birkenhead in Re H and Others (Minors) (1996) AC 563, 586, as quoted in Kyalo Elly Joy, for the principle that the balance of probability standard means a court is satisfied an event occurred if it considers the occurrence was more likely than not, and that the more serious the allegation, the stronger the evidence should be. 22.The appellant contends that the relationship between the parties was cordial, rendering formal communication unnecessary, and that the court should have appreciated that communications were informal, a fact supported by the appellant's honoring of contracts even when not executed. 23.The appellant further argues that the trial court erred in finding it could not determine whether poorly executed steelworks were performed by the respondent, thus determining an issue not pleaded or contested. 24.Additionally, the appellant submits that the magistrate erred in holding that the appellant should have called an employee to corroborate testimony when the documents produced were sufficient. 25.Noting that the appellant's witness testified without denial about fabrications installed in a high-security site and produced documents showing extra costs incurred, and that once the court acknowledged security reasons might have prevented proof that the respondent was taken to the site, it should have found the appellant had proved its case on a balance of probabilities. 26.Regarding the dismissal of the appellant's counterclaim, the appellant argues that the court erred in holding that the defendant did not prove the mistake was the plaintiff's. 27.Since the plaintiff never alleged the mistake belonged to any other sub-contractor, and the defendant provided evidence through emails, reports, petty cash allowances, invoices, and casual labourer lists to prove costs incurred to remedy the plaintiff's breach. 28.Consequently, the appellant prays that the appeal be allowed, the judgment of Honourable E. K. Suter, Principal Magistrate, in Civil Suit No. 122 of 2019 delivered on 19th October 2023 and all consequential orders be set aside, the respondent's suit be dismissed. 29.Further, that the counterclaim be allowed, and costs of the appeal and lower court be awarded to the appellant. 30.The respondent submitted that the appeal arises from a dispute over a subcontracted steel fabrication project for the British Army's Nanyuki Base, where the Respondent was engaged by the Appellant to fabricate steel structures based on designs and drawings provided by the Appellant. 31.The Respondent contends that it executed the fabrication work strictly according to the specifications given, that its obligations ended at its Mlolongo workshop, and that it had no responsibility for installation, which was outside the scope of its contract. 32.The Respondent emphasizes that the Appellant had a duty to inspect the finished product before it was delivered to the site, yet the Appellant accepted the completed work without any complaint or reservation regarding its quality. 33.When fitting problems later emerged during installation, communications regarding these issues took place between the Appellant and the end client, but the Respondent was neither involved in nor informed of those discussions, and the Appellant never shared any adverse feedback or requested that the Respondent undertake corrective measures. 34.On the critical question of the burden of proof, the Respondent argues forcefully that the Appellant, as the party alleging non-performance or defective work, bore the legal burden of proving its claim, invoking the well-established principle that he who alleges must prove, which is codified in Sections 107 to 109 of the Evidence Act (Cap 80 of the Laws of Kenya) and affirmed in Assets Recovery Agency v Sharif (Anti-Corruption and Economic Crimes Civil Suit E011 of 2021) [2025] KEHC 10495 (KLR) (Anti-Corruption and Economic Crimes) (16 July 2025) (Judgment). 35.The Respondent further draws a careful distinction between the legal burden, which never shifts and remains throughout with the party that would fail if no evidence were adduced, and the evidential burden, which can shift between the parties as the trial progresses. 36.The respondent relied on the Court of Appeal's analysis in Nairobi Civil Appeal No. 452 of 2018 Pamela Aboo v. Assets Recovery Agency & Another, where Warsame JA explained that while the legal burden is static, the evidential burden oscillates depending on the particular contested facts in issue. 37.Applying these principles, the Respondent submits that the Appellant failed to discharge either burden because its own engineer admitted under cross-examination that they did not check the fabricated product after completion, citing a tight deadline and the Respondent's alleged delay. 38.The Respondent argues that this admission is a telling revelation that the Appellant had full control over the fabrication process at its own yard and was therefore solely responsible for verifying that the dimensions and measurements, which the Appellant itself had provided jointly with the client, were correctly executed. 39.The Respondent contends that no reasonable engineering firm would accept a defective product fabricated on its own premises without conducting the necessary inspections, and the fact that the Appellant accepted the finished product unconditionally strongly indicates that the work was indeed performed as instructed. 40.Regarding the counterclaim, the Respondent maintains that the Appellant's case is fundamentally flawed because the contract had no stipulated timeline, the Appellant supplied the designs and dimensions, the Appellant had both the means and opportunity to ascertain quality before delivery, and the Appellant never communicated any complaints from the client to the Respondent. 41.The Respondent submits that these circumstances lead to the inevitable inference that the installation failures likely resulted from the Appellant's own errors in measurement or installation rather than from any deficiency in the Respondent's fabrication work. 42.In light of all these considerations, the Respondent prays that the appeal be dismissed with costs, asserting that the trial court correctly found that the Appellant had failed to prove its allegations and that the Respondent had fulfilled its contractual obligations in full. 43.This is a first appeal, this court has a duty to re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. 44.The principles governing a first appeal are well settled: the appellate court must reconsider the evidence, evaluate it itself, and draw its own conclusions in deciding whether the judgment of the trial court should be upheld. See Okeno v Republic [1972] EA 32, and Kinyungu v Kimani & another [2025] KEHC 694 (KLR) . 45.An appellate court will only interfere with the judgment of the lower court if the decision is founded on wrong legal principles or based on no evidence. 46.From the memorandum of appeal, the parties' submissions, and the record of appeal, the following issues arise for determination in this appeal;i.Whether the trial court erred in its application of the burden and standard of proof in civil cases.ii.Whether the trial court properly evaluated the evidence and arrived at a correct finding on the respondent's claim.iii.Whether the trial court properly evaluated the evidence and arrived at a correct finding on the appellant's counterclaim. 47.On the first issue, the appellant contends that the trial court erred by shifting the burden of proof to the appellant despite the respondent failing to discharge its own burden. 48.The law on burden of proof in civil cases is firmly established. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya, provides that 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. 49.Section 108 states that the burden of proof lies on that person who would fail if no evidence at all were given on either side, while Section 109 provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. 50.The distinction between the legal burden and the evidential burden is instructive. The legal burden remains static and rests on the party who asserts the affirmative of an issue, while the evidential burden can shift as the trial progresses. 51.The legal burden does not shift, but the evidential burden oscillates depending on the particular facts in issue. 52.In this case, the respondent bore the legal burden of proving his claim for the outstanding balance. However, the appellant, in asserting its counterclaim for poor workmanship, bore the burden of proving that allegation. 53.The burden of proof is on the plaintiff, and the degree of proof is on the balance of probabilities, which is a restatement of Section 107 of the Evidence Act. 54.The standard of proof is on a balance of probabilities which means that a court is satisfied an event occurred if it considers that, on the evidence, the occurrence of the event was more likely than not. 55.In percentage terms, a party who establishes its case to 51% as opposed to 49% has satisfied that standard.See William Kabogo Gitau v George Thuo & 2 Others (supra), cited in Kyalo Elly Joy v Samuel Gitahi Kanyeri (supra) . 56.Applying these principles, the trial court did not err in its application of the burden of proof. 57.The trial court correctly held that the appellant, having alleged poor workmanship, delays, and rejection of steel structures by the client, bore the burden of proving those assertions. 58.The court found that the appellant failed to adduce sufficient evidence to connect the alleged defects specifically to the respondent's work. 59.The appellant's own witness conceded under cross-examination that the respondent was not copied on any emails regarding the alleged defects and that there was no written document evidencing poor workmanship or any agreement for the appellant to undertake repairs at the respondent's cost. 60.The trial court properly found that the appellant failed to discharge its burden of proof on the counterclaim. The appellant's argument that the trial court shifted the burden is therefore without merit. 61.On the second issue, the trial court made a finding on the total contract sum after examining the subcontract agreements on record. 62.The court found that neither party's computation was fully supported by the documents and, upon summing all contracts filed, arrived at a total cost of Ksh. 3,923,766. 63.Since the respondent admitted receiving Ksh. 2,600,000, the court determined the provable outstanding balance to be Ksh. 1,323,766. 64.The appellant has not seriously challenged this computation on appeal. The trial court also found that the respondent had proved his case for the admitted balance. 65.In doing so, the court correctly applied the principle that the initial burden lies on the plaintiff to prove its claim. 66.However, the court's finding was based on the documentary evidence presented and the appellant's own admissions. 67.Where a party fails to call evidence in support of its case, that party's pleadings remain mere statements of fact. 68.The appellant's defence was not substantiated, and the trial court properly entered judgment for the respondent on the admitted balance. 69.On the third issue, the appellant contends that the trial court erred in dismissing its counterclaim. 70.The appellant's counterclaim sought to recover Ksh. 1,281,337 for remedial works allegedly undertaken due to the respondent's poor workmanship. 71.The trial court dismissed the counterclaim for lack of proof, finding that the appellant failed to show that the respondent was notified of any breach or that the parties mutually agreed to deduct repair costs from the respondent's dues. 72.The trial court also noted that numerous emails between the appellant's witness, its employees, and its client were not copied to the respondent, and no written notification of any breach or poor workmanship was ever communicated to the respondent. 73.The respondent consistently testified that he was never informed of any shortcomings. The appellant failed to adduce sufficient evidence to prove its counterclaim. 74.The trial court's finding that the appellant could have called other employees to corroborate its witness's testimony but did not, was a proper observation on the failure to discharge the evidential burden. 75.The appellant's argument that the trial court decided an issue not pleaded because it found it could not determine whether the poorly executed steelworks were performed by the respondent is without merit. 76.The issue of whether the poor workmanship was attributable to the respondent was squarely raised by the appellant's counterclaim and defence. 77.The trial court's finding that the appellant failed to prove this connection was a proper evaluation of the evidence and a valid reason for dismissing the counterclaim. 78.The assertion that the relationship between the parties was cordial, thus explaining the absence of formal communication, is not a valid excuse for failing to prove a claim. 79.The burden of proof requires evidence, not assumptions about the nature of the relationship. 80.A pleading that is vague or unsupported by evidence cannot sustain a claim. 81.The appellant's argument that its evidence was unrebutted and therefore should have been accepted is also misplaced. 82.Where a defendant does not adduce evidence, the claimant must still prove its case on a balance of probabilities. 83.The appellant's evidence on the counterclaim fell short of the required standard. The evidence was vague, lacked specificity, and did not connect the alleged defects to the respondent's work. The trial court properly dismissed the counterclaim. 84.On costs, Section 27(1) of the Civil Procedure Act provides that costs follow the event. The trial court was correct in awarding costs to the respondent as the successful party. There is no reason to interfere with that exercise of discretion. 85.In the final analysis, this court finds that the trial court's judgment was based on a proper evaluation of the evidence and correct application of the law. 86.The trial court correctly identified the issues, applied the correct burden and standard of proof, and arrived at a sound conclusion on both the respondent's claim and the appellant's counterclaim. 87.The appellant has failed to demonstrate any error of law or fact that would justify interference with the trial court's decision. 88.The appeal lacks in merit and it is accordingly dismissed. The judgment of the trial court in Civil Suit No. 122 of 2019 is hereby upheld in its entirety. 89.However, each party to bear its own costs of this appeal. 90.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 25TH DAY OF JUNE, 2026.A. N. ONGERIJUDGEIn the presence of:No appearance for the AppellantNo appearance for the RespondentChrispin – Court Assistant