https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7498

Eleser Limited v All Team Contracts Limited (Civil Suit 4A of 2016) [2026] KEHC 7498 (KLR) (26 May 2026) (Judgment) Neutral citation: [2026] KEHC 7498 (KLR) Republic of Kenya In the High Court at Nyeri Civil Suit 4A of 2016 DKN Magare, J May 26, 2026 Between Eleser Limited Plaintiff and All Team Contracts Limited Defendant Judgment 1.By a Plaint dated 24.11.2015, the Plaintiff sought judgment against the defendant for:a.Ksh. 34,490,000/=b.Interest on the said amount from 20th December 2011 at bank rates prevailing at the time.c.Cost of the suit. 2.The Plaintiff entered into an agreement with the Defendant to carry out several projects as joint ventures. The object of the partnership was that at the completion of the various projects, the profit and assets would be divided equally among them. 3.The plaintiff pleaded that all payments from the projects were to be directed to Eleser Account 2 No. 0612018685 at Guardian Bank. Further, that from 1.01.2012 payments from Baraka and Mara Leisure will be channeled to Account No. 0XXXXXXXX07 in the name of Mara Transcend at Prime Bank Riverside. All payments from Ark and Aberdare were to be channeled to account 2, that is, 0612018685 at Guardian Bank. 4.The defendant on the other hand by an Amended Defense dated 16.10.2020 admitted the joint venture agreement with the Plaintiff. It further averred that Account number 0612018685, that is, account 2, Guardian Bank was a joint venture account with Tarsem (PW1), with a director of the Plaintiff as one of the signatories and Naran (DW1), a director of the Defendant as the other signatory, and none of them was authorized to operate the account alone and all the monies in this account were part of the proceeds of the joint venture account. 5.The Defendant denied that the Plaintiff paid its own money from Account number 0612018685, Account number 2 Guardian Bank, (as this was a joint venture account) to Account number 0XXXXXXXX07, Prime Bank Limited, in the name of Mara Transcend Limited. Submissions 6.Parties filed submissions. The plaintiff filed submissions dated 16.02.2026. They submitted that there are three issues, that is:a.Whether there was a joint venture and whether the defendant and the plaintiff were to share profits equally.b.Whether the defendant withdrew a sum of Ksh. 31,490,000/=.c.Whether the defendant is indebted to the plaintiff for a sum of Ksh. 31,490,000/=. 7.They submitted that they had agreements to execute joint venture. Mara Transcend Limited site was on its own. They had three projects that is:a.Mara Leisure lodge refurbishment works valued at Ksh. 91,656,536/= plus VAT.b.Ark and Aberdare projects valued Ksh. 188,336,603/=c.Baraka lodge project at Masai Mara Wilderness Lodge valued at Ksh. 52,000,000/=. 8.They submit that the amount of Ksh. 34,340,000/= was deposited into the account by the plaintiff from Guardian Bank into Masai Mara Transcend Account. The said amount was said to have been admitted to have been withdrawn, the amount of Ksh. 31,490,000/=. 9.The defendant filed submissions and stated that the Plaintiff called one witness, Tarsem Sembi, who relied on his witness statement and the documents filed in its support, whereas the Defendant called one witness, Naran Hirani, who relied on his witness statements and produced various documents marked as Defense Exhibit 1 – 14 (pages 15-56 of the Defendant’s Trial Bundle). 10.The defendant identified the following issues:a.Whether the sum of Ksh. 34,490,000/= claimed by the Plaintiff was the Plaintiff’s money.b.Whether the Defendant unlawfully withdrew or misappropriated joint venture funds.c.Whether the Defendant acknowledged being indebted to the Plaintiff in the sum of Ksh. 31,490,000/= or at all. 11.The defendant averred that the burden of proof is on the plaintiff. Reliance was placed on section 107-109 of the Evidence Act as doth: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.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 12.Further reliance was placed on the case of Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] KECA 423 (KLR), where the Court of Appeal [Visram, Koome & Otieno - Odek, JJ.A] held that:We have considered the rival submissions on this point and state that 5 Section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. Section 107 of the Evidence Act 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.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side. 13.They also relied on the case Mbuthia Macharia v Annah Mutua Ndwiga & another [2017] KECA 290 (KLR) where the court held as follows:“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.” 14.It was submitted that for the Plaintiff to succeed in the claim it must demonstrate that the sum of Ksh. 34,490,000/= was its own money and not joint venture funds. Further that in the Plaintiff’s own pleadings and evidence is demonstrated that Eleser 2 Account No. 0612018685 at Guardian Bank in the name of Eleser was a joint venture account operated jointly by the parties’ directors. Various amounts of monies came into this account from the joint venture clients. 15.It was submitted that the Plaintiff’s exhibit 11 contained in the Plaintiff’s Further Supplementary List of Documents dated 7th December 2023 are various statements of account for Eleser Limited A/C 2 a/c no. 0XXXXXXXXX5. This was a joint venture account where joint venture monies were payable under the joint venture agreement. It shows the following amounts as being credited into the account on the various dates shown and from sources indicated in the table below:a.17/2/2012 34,621,168.00 Taiho Properties Ltdb.17/2/2012 43,107,232.00 The Ark Ltdc.2/5/2012 3,607718.00 Masai Mara Lodgesd.9/7/2012 12,452,807.00 Taiho Properties Ltde.9/7/2012 1,000,000.00 undisclosedf.10/7/2012 26,152,731.00 Ark Ltdg.2/7/2012 484,400.00 Undisclosed 16.They submitted that all the said amounts save an aggregate sum of Ksh. 1,484,400/= (whose source is unknown) came from Taiho Properties Ltd, Masai Mara Lodges and The Ark Limited. They also submitted that defence exhibit No. 1, the Joint Venture Agreement showed that Taiho Properties Limited, The Ark Limited and Masai Mara Lodges were joint venture clients. This meant that the said amounts were joint venture amounts and not monies belonging to the Plaintiff. 17.It was submitted that during cross examination PW1 confirmed that the two accounts i.e., Eleser Limited A/C 2 a/c no. 0XXXXXXXXX5 at Guardian Bank and Account No. 0XXXXXXXX07 in the name of Mara Transcend at Prime Bank Riverside were joint venture accounts. Under the said agreement, from 1st January, 2012, monies from Baraka and Mara Leisure were to go into the Mara Transcend Account. Evidence however shows that the monies went into Eleser Ltd 2 account. The Plaintiff did not demonstrate that the sum of Kes. 34,490,000/= claimed was its money hence the Plaintiff has no basis for the claim. 18.They continued that in cross examination PW1 confirmed that both he and Naran were the joint signatories to the Eleser Limited A/C 2 a/c no. 0XXXXXXXXX5 at Guardian Bank with the mandate of both to sign. Evidence showed that payments from the account were signed by the two (2). Albeit there were instances where PW1 instructed the bank to pay to accounts related to him without the involvement of Naran. 19.Further they submitted that no evidence was provided to show that monies moving to the Mara Transcend Account were ever moved without the approval of PW1. On the contrary all evidence on record points to the fact that PW1 authorized all transactions involving money moving from Eleser 2 account to the Mara Transcend account. The Mara Transcend Account No. 0XXXXXXXX07 at Prime Bank Riverside had both PW 1 and DW 1 as the signatories with mandate of either to sign. Where Naran thus signed it was on the basis of the mandate given by the signatories to the account. It is therefore not plausible that the amounts moved without the consent or authority of the Plaintiff. Finally, there was no evidence that any project monies ever went into the account of the Defendant. The accounts provided shows various people were paid but none of them was the defendant. 20.On whether they are indebted, they relied on the pleadings and this principle was echoed by the court in respect to the essence of pleadings. The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in an election petition:58.In the case of Arikala Narasa Reddy v Venkata Ram Reddy Reddygari & anr, Civil Appeal Nos 5710-5711 of 2012; [2014] 2 SCR the Supreme Court of India held that [paragraph 8]:52.Further, the court went on and observed that:“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings. The court cannot exercise discretion of ordering recounting of ballots just to enable the election petitioner to indulge in a roving inquiry with a view to fish material for dealing the election to be void. The order of recounting can be passed only if the petitioner sets out his case with precision supported by averments of material facts. 21.The court was urged that submissions are not founded on the pleadings and must be dismissed. 22.They denied ever acknowledging being indebted to the plaintiff. A letter dated 13.09.2015 from Muigai Kemei & Associates advocates, (Plaintiff Exhibit No. 7) was not an acknowledgement of being indebted to the plaintiff in the sum of Kes. 31,490,000/=. They set the letter out in extension as follows:1.Our client admits receipt of Ksh. 31,490,000 from your client, accounts of which were rendered to your client’s director on 3rd July 2014 and Eleser Limited acknowledged receipt of the same. (Attached hereto are copies of the said accounts and acknowledgement letter by Eleser Limited dated 4th July 2014).2.Our client notes that payments received for the joint venture projects amounted to Ksh. 313,534,656.50/= of which our client only received and expended Ksh. 31,490,000 for construction work in the joint venture as per the agreement an amount which our client has fully accounted for. (Attached hereto is a copy of payment summary details from Eleser Limited sent to our client.).3.Our client is therefore demanding accounts from your client for the balance of Ksh. 282,044,656.50/= of the monies received by Eleser Limited for the joint ventures. 23.It was submitted that the letter acknowledges receipt of Kes. 31,490,000/= but does not acknowledge the defendant is indebted to the Plaintiff as claimed by the Plaintiff. The letter not only states that the funds have been utilized for the joint venture and accounts for the same but also demands the Plaintiff to account for Kes. 282,044,656.50 it received. 24.It was submitted that the letter cannot by any stretch of imagination be said to be an acknowledgement of debt. DW1 was categorical throughout the cross examination that he does not admit owing the amount on account of the funds having being utilized for the joint venture and fully accounted for. Moreover, the Plaintiff claiming the said amount without accounting for the sum of Kes. 282,044,656.50 it received would be using the court to defraud the Defendant. Equity cannot aid the Plaintiff who has come to court with soiled hands. The upshot is that the letter from Muigai Kemei & Associates does not acknowledge indebtedness on the part of the Defendant. 25.They submitted that the Plaintiff has failed to prove its case on a balance of probabilities or at all. The Plaintiff has come to court with unclean hands when it is clearly demonstrated that the Plaintiff received joint venture monies but has failed to account for the same. They prayed for the case to be dismissed. Evidence 26.The plaintiff testified with one witness, Tarsek Singh Sembhi who testified as a managing director of the plaintiff. He adopted his statement dated 24.11.2025. He also produced 11 exhibits. 27.On cross examination he stated that the agreement between them was to share profits equally. They had three projects, Mara Leisure Lodge and Baraka Lodge project. They completed Ark and Aberdare projects. They had accounts at Guardian Bank and Mara Transcend account at Prime Bank. He was a signatory with Naran Velji Arjan. The mandate was for the two to sign. Monies were paid in by various clients. They stated that 4 projects were undertaken. He did not provide for invoices and valuation certificates. There were no bank statements for the projects. Three projects were paid for in full. In re-examination, he stated that he was claiming money in respect of Mara Transcend. 28.DW1 was Naran Velji Arjan. He adopted his statements dated 12.04.2016 and 31.10.2023. He relied on the supporting documents exhibits 1-14 filed in three bundles. 29.He stated that they had three projects being Mara Leisure Lodge, Baraka Lodge and Ark and Aberdare projects. There was delay in the projects which were about 60% completed. The witness was stood down. He was further cross-examined. The project under the joint venture were completed. They shared profits 50:50. They opened a joint venture account, Eleser 2 and Mara Transcend account. Both the plaintiffs and defendants did not contribute. The money was paid by the clients for the project. 30.There were other vehicles and other joint venture properties which he sold as they were apportioned to him. On re-examination he stated that the Eleser property managed their project. He was not aware of other motor vehicles. Analysis 31.The matter was filed on 3.02.2016, a period of 10 years, three months and 23 days ago. It related to a payment of Ksh 31,940,000/= from the plaintiff’s company account. It was averred that a project known as Mara Transcend was created and had two accounts. The plaintiff was said to have paid into the Mara Transcend, a sum of Ksh. 34,490,000/= which the defendant withdrew without the plaintiff company’s consent. Therefore, only one issue is due for decision, that is whether, the defendant owes the plaintiff a sum of Ksh. 31,490,000/=. There is an auxiliary question of whether the sum was admitted. The so called admission was to the effect that:“Our client notes that payments received for the joint venture projects amounted to Ksh. 313,534,656.50/= of which our client only received and expended Ksh. 31,490,000 for construction work in the joint venture as per the agreement an amount which our client has fully accounted for.” 32.The above is not an admission. It is actually a denial. It states that the entire funds were Ksh. 313,534,656.50/=. They received Ksh. 31,490,000/= which they expended. The expenditure is for construction work in the joint venture as per the agreement. The amount was fully expended and no amount remained unaccounted for. In the case of Choitram & another v Nazari [1984] KECA 47 (KLR), the Court of Appeal [CB Madan, AA Kneller & ZR Chesoni, JJA] addressed the question of admissions under the then Order XXII Rule 6 as follows:I agree with the position as stated in that case which also appears at p 856 in Mulla on the Code of Civil Procedure Act, ibid. An admission is clear if the answer by a bystander to the question whether there was admission of facts would be “of course there was.” In Kiprotich v Gathua & Others, [1976] KLR 87 at p 90 the former Court of Appeal for Eastern Africa said: … the jurisdiction to award judgment on admissions resulting from failure to reply to a counterclaim should only be exercised in the clearest of cases ….”7.The principle is the same when considering an application under order XII rule 6 for judgment on admissions arising in any form.8.Admissions of fact under order XII rule 6 need not be on the pleadings. They may be in correspondence or documents which are admitted or they may even be oral. The rule uses the words “or otherwise” which are words of general application and are wide enough to include admissions made through letter, affidavits and other admitted documents and proved oral admissions.9.The rule empowers the court to make such order, or give such judgment, as it (court) may think just. It is settled that a judgment on admissions is in the discretion of the court and not a matter of right: see Mulla on the Code of Civil Procedure Act (ibid) p 854. The court’s discretion in the matter is unfettered, but as it was said in Kiprotich v Gathua & Others (supra) at p 92 that discretion must be exercised judicially. As the application in this appeal involved an exercise of discretion by the learned judge this court should not, on appeal, interfere with the exercise of that discretion unless this court is satisfied that either:(a)he misdirected himself in some matter and as a result arrived at a wrong decision, or(b)it is manifest from the case as a whole that the learned judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice -see Mbogo and Another v Shah [1968] EA 93 and Kiprotich vs Gathua & Others supra at p 91 letter H. In my opinion failure to direct oneself on some relevant matters which results in arriving at a wrong decision is the same as misdirection which produces the same result.10.Having set out in the preceding paragraphs the law relating to obtaining judgment on admissions under order XII rule 6 I should now proceed to look for any admissions on the pleadings and otherwise. In the latter case I shall consider the admitted documents which include the letters exchanged between the parties, receipts, draft transfer, affidavits and any proven verbal admissions. For the appellants to succeed the admissions must relate to or be of a binding contract capable of being enforced by an order for specific performance, which is the remedy sought. 33.There was no pleading relating to other accounts and other approvals. A party must plead its case fully. Parties are bound to plead their cases fully. In the case of Migore v South Nyanza Sugar Co Ltd [2018] KEHC 5465 (KLR), A C Mrima, J, stated as follows:11.It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation. 34.In the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, Malawi Supreme Court of Appeal stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled The Present Importance of Pleadings published in [1960] Current Legal Problems at p 174 whereof the learned author posited that:As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called Any Other Business in the sense that points other than those specific may be raised without notice. 35.This is not a criminal trial. It is a civil trial in which the court must find for one party or the other on the balance of probabilities. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded 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 opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 36.The amount was not deposited into the account by the plaintiff. The joint venture was actually in the form of Mara Transcend Limited, a company limited by shares. The owners of Mara Transcend Limited are the two directors from the plaintiff and defendant. However, neither the plaintiff nor the defendant were party to the agreement. The articles of agreement were entered on 2.2.2012 between the plaintiff and defendant as per the defence exhibit 1. All the payments were from third parties and not by the plaintiff. 37.The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 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 more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 38.Before the plaintiff fraudulently takes any money, the money must belong to the plaintiff. In this case, this was a joint venture. Only an account will have dealt with what each party owes. From the proceedings it is not clear what part of the amount utilised by the defendant belonged to either party and which part was utilised by the venture parties. A party should not just throw figures at the court. 39.The recipient of 13 cheques was a company Mara Transcend Ltd that was run by the very two people who testified. There is no claim by Mara Transend of loss of its funds. It is a limited liability company separate from its directors. In the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] KECA 616 (KLR), the court of appeal stated as follows:If the answer to this question is in the affirmative, then clearly the motor vehicle was wrongly attached. This would be so because as rightly submitted by the appellant before the trial court and in the memorandum of appeal, a company is a separate legal entity from its directors and a vehicle belonging to the appellant could not therefore have been attached to settle Mr Gikubu's debt. 40.In Lacheka Lubricants Limited & another v Chanandin & 4 others [2023] KECA 1359 (KLR), the court of appeal [HM Okwengu, MSA Makhandia & K M'Inoti, JJA] posited as follows:When we consider the circumstances leading to the dispute, we find that the issues involved are complex in nature. A cursory reading of the plaint points to claim based on a joint venture agreement entered into between the respondents and Kings Developers Limited, a company in which the appellants were directors. A management company, Skyrock Management Limited was later incorporated comprising inter alia, of the respondents and other purchasers of the apartments. The respondents claim to have signed the joint venture agreement, while the appellants claim that such an agreement did not exist, and that the document attached to the plaint was unsigned. On this basis, they assert that the suit offends the requirements of section 3 of the Law of Contract, particularly as the agreement was concerned with dealings in land. Further, that since it was made between the respondents and Kings Developers Limited, on the basis of the case of Salomon v Salomon and Company Ltd [1897] AC 22; they should not have been joined as parties to the suit since the company is a separate entity from its directors. 41.The plaintiff was under duty to prove ownership and loss of the money. However, they have no claim to the money. It belongs to the joint venture. It is not their claim that they were not paid profits. It is not the duty of the court to re-write contract between the parties. In the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR) [Tunoi, Shah & Keiwua JJ A] it was stated as follows: -A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the charge.As was stated by Shah JA in the case of Fina Bank Limited vs Spares & Industries Limited (Civil Appeal No 51 of 2000) (unreported):“It is clear beyond peradventure that save for those special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily no part of equity’s function to allow a party to escape from a bad bargain. 42.Parties and their counsel have a duty to properly lay their cases before the court and only then tender evidence. I have seen the plaintiff lay part of their claim in submissions. Submissions are not evidence. Mwera J, posited as follows when postulating on what is the role of submissions. He stated that they are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim. In the case of Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 it was stated:“Indeed, and strictly speaking, submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.” 43.Submissions are not, strictly speaking, part of the case, the absence of which may do no prejudice to a party. Their presence or absence does not in any way prejudice a case as held in Ngang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, that:“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.” 44.The Court of Appeal was more succinct in that Submissions cannot take the place of evidence when they addressed the question in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” 45.This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 46.Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:“It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 47.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 48.The defendant was forced to defend an unnecessary claim inter alia, for sum of Ksh 31,490,000/=. The defendant is entitled to costs. Determination 49.In the circumstances, I make the following orders:a.The suit lacks merit and is hereby dismissed.b.Costs of Ksh. 385,000/= to the defendant.c.30 days stay of execution.d.14 days right of appeal.e.File is closed. DELIVERED, DATED AND SIGNED AT NYERI THIS 26TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of; -Mr. Kariuki for the plaintiffMs. Makokha for the defendantCourt Assistant – Martin