Okoth t/a Intercity Renovations v Misure (Civil Appeal E207 of 2024) [2026] KEHC 9520 (KLR) (26 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E207 OF 2024** **ELIJAH FANUEL OKOTH t/a** **THE INTERCITY RENOVATIONS…………….……….APPELLANT** **-VERSUS-** **AMBROSE MISURE………………..……………………RESPONDENT** (*Being an appeal from the Judgement and decree of the Hon. E. N. Mwenda (PM) in Kisumu CMCC No. 129 of 2018 delivered on the 26th September, 2024)* ***JUDGMENT*** **Introduction** 1. This is an Appeal from the Judgement of Hon. E. N. Mwenda (PM) delivered on the 26th September, 2024, where the trial Magistrate dismissed the Plaintiff’s suit against the Defendant for lack of sufficient evidence. 2. The suit involved a contract for construction of a storey building at an agreed cost of Kshs.2,370,000/-. The Appellant claims to have performed his part of the contract, but the Respondent failed to pay the agreed amounts which the Appellant has pleaded as Kshs.390,500/-, which was the labour cost of roofing the premises and other labour charges. 3. The trial Magistrate found that the Appellant had not proven that he performed the works, specifically the roofing as had been pleaded, and went ahead to dismiss the Appellants suit with costs to the Respondent. 4. Aggrieved by that finding, the Appellant has filed the Appeal herein asking the court to set aside the Judgment of the trial court and in its place find that the Appellant had established his case to the standards expected of him in law. **Trial Court Evidence** 1. The PW1 testified that he had been contracted by the Respondent to construct a house on **LR No. Kisumu/Konya/3375**. He produced in court the contract dated **15th July, 2015** with the agreement between the parties and showing that the works would be completed in **October, 2016.** 2. The Plaintiff stated that he completed the works in October 2016 as had been agreed but the Respondent did not pay the total sum as had been agreed. That there is still a balance of Kshs.390,500/- which is outstanding, being the agreed contractual sum for roofing labour of Kshs.300,000/- and Kshs.90,500/- being unpaid labour for other works done on the premises. He claimed that the Defendant was in breach of the terms of the agreement and therefore sought to recover the outstanding amount stating that the Defendant never notified him of any breach of the terms on his part. 3. The Appellant had called a witness who told court that he had worked at the site and did general woodwork on instructions of the Plaintiff but was not paid. 1. The Respondent testified in court and stated that the Plaintiff did shoddy works and therefore he paid the Plaintiff for the works done. According to the Respondent, he incurred costs in rectifying the shoddy works done by the Appellant and he therefore doesn’t owe the Appellant any monies. He told court that he learnt of the shoddy works from the specialized artisans that he had retained. 2. DW2 testified that he was hired by the Respondent in year 2017 to do the repair works following the substandard work done by the Appellant. According to DW2 the roof had not been done by the time he went to the site in August 2017. DW2 told court that the external walls, window sills and floor were poorly done. 3. DW3 was contracted by the Respondent to do the roof. He told court that he did the works in the year 2017 and quoted for a sum of Kshs.992,000/- which he was paid. 1. In his Judgment, the trial Magistrate found that there was no evidence indicating that the Appellant had done the roof and therefore the amount claimed had not been proved. 2. Aggrieved by the said judgment the Appellant filed a Memorandum of Appeal with the 3 main grounds: - 1. *Whether the learned trial Magistrate erred by holding that the Appellant did not provide proof that the roofing was done.* 2. *Whether the learned trial Magistrate erred in failing to find that the Respondent had never issued any notice of completion or non-completion.* 3. *Whether the Respondent did in fact plead non-roofing, and/or provided sufficient evidence before the lower court that he hired another contractor and incurred further costs in roofing.* 3. The Appellant pleaded with the court to allow the appeal, set aside the judgment of the trial court and enter Judgment as was sought in the plaint. 4. The Appeal was heard by way of written submissions and each party filed their submissions. **Appellants Submissions** 1. The Appellant submitted that the only issue that should have been subject of determination by the trial Magistrate was whether there was a breach of the contract by the Respondent and if so, to what extent? He submitted that the Respondent had conceded to the existence of the contract between the parties, because the Respondent stated that the Appellant did not do the work as agreed. 1. On the breach of contract, the Appellant submitted that from the totality of the evidence produced before the court, being the contract document and the financial statements produced by the Appellant, it was clear that a contract existed between the parties. That in the previous phases of work, the Appellant was paid once he issued the invoice and the Respondent would upon his own satisfaction proceed to make payments. 2. Counsel submitted that a *modus operandi* having been established by the parties, the court greatly fell in error by requiring the Appellant to prove completion of the said works in a way that was not contemplated by the agreement. 3. The court also failed to note that the Respondent herein was estopped from arguing that a report of completion of works was required because all the previous dealings on the site had not required any report to evidence completion. 4. Counsel for the Appellant submitted that the onus was on the Respondent to prove that indeed work had not been done, and that further by virtue of the work having not been done, a breach occurred and that the Respondent incurred extra costs in remedying those breaches which costs were recoverable from the sum claimed in the invoice by the Appellant. 1. The Appellant submitted that the court failed to appreciate that the amounts claimed were purely for the labor, and which costs had been pre-calculated for every stage of the work done. 1. Counsel for the Appellant submitted that no amount of paper evidence would prove this unless the Respondent himself gave evidence of the purported non completion or any extra costs he claimed to have incurred as a consequence of the non-completion. The Appellant submits that the Respondent did not plead that there was no roofing, did not tender evidence that there was no roofing done and there was no quantification of the purported breach. **Respondents Submissions** 1. The Respondent had submitted that the trial court had carefully considered the evidence adduced by both parties and found that the Appellant had not adduced sufficient evidence to establish his claim. In any event, the Respondent submits that this court has the power to reevaluate the evidence afresh and make its own finding. 2. In response to the submission that breach had not been established by the Respondent, the Respondent submitted that they had called evidence to show that the works done were substandard and incomplete, and that is why the DW2 and DW3 were called as witnesses. 3. On the application of legal principles, the Respondent submitted that the trial Magistrate was right in applying the principle in Section 107 of the Evidence Act, which stipulates that whoever alleges has the onus to prove. 4. The Respondent submitted that the trial Magistrate had properly evaluated the evidence before him and was correct in dismissing the Plaintiff’s suit. He urged this court not to interfere with the findings of the trial Court. **Analysis and Determination** 1. This is being a first appeal I am alive to the duty of the court as stated in by the Court of Appeal in **Kenya Horticultural Exporters Ltd vs Julius Munguti Maweu Civil Appeal No. 9 of** **2004,**where it was held that: - ***“On a first appeal the Court has the duty of re-evaluating the evidence, assess it and make its own conclusions without overlooking the conclusions of the trial court and bearing in mind that unlike the trial court it neither saw nor heard the witnesses.*** 1. I have considered the Memorandum of Appeal, the submissions in support and in opposition to the appeal, the trial court’s evidence and I will frame he following issues for determination: - 1. *Whether there was breach of contract and who had the onus of proving the same.* 2. *Whether the Respondent was estopped from requiring a report in proof of performance, having established a mode of operation that only required him to see the works and approve upon raising of invoices.* 3. *Whether the trial court erred in finding that the Appellant was not entitled to the payment of the amounts claimed in the plaint, having not proved that the works had been done.* ***Whether there was breach of contract and who had the onus of proving the same.*** 1. The legal burden is placed on the person asserting an issue to prove it. In the instant appeal, the burden of proof is on the Appellant to prove that indeed there was a breach of the contract between him and the Respondent and therefore he ought to be protected by law. Section 107(1) 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.* 1. It is the Appellant who desired that the court would find that the Respondent had failed to abide by the written terms of the contract by failing to pay the agreed amounts as per the contract and therefore, it was the duty of the Appellant to prove that indeed the Respondent failed to conduct himself in the manner agreed between the parties. 2. In the case of [**Isca Adhiambo Okayo vs Kenya Women’s Finance Trust**](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/603) **KSM CA Civil Appeal No. 19 of 2015 (2016) eKLR**, the court reiterated the provisions of sections 109 and 112 of the Evidence Act which have almost similar provisions to Section 107 (1) of the Act. 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, unless it is provided by any law that the proof of that fact shall lie on any particular person*while Section 112 provides that *in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.* 3. The Appellant pleaded breach of contract by the Respondent and it was upon him to tender evidence that he had performed his part of the bargain as was agreed but the Respondent declined to honor the terms by not paying for the works. At no point did the burden of proof shift to the Respondent because the Appellant did not tender evidence to demonstrate that indeed he had performed his part of the bargain, by constructing the suit property to completeness. 4. The Appellant submitted that the Respondent had pleaded breach of contract and therefore they ought to have availed evidence to demonstrate the breach.My view is that the Appellant is the one who had sought the aid of the law. The Respondent had only invoked the breach in defense of the assertions by the Appellant. So that the burden of proof remained with the Appellant and the evidential burden would only have shifted, had the Appellant established breach of contract on the part of the Respondent. 5. Inthecase of **Raila Amolo Odinga & another V IEBC** **& 2 Others, (2017) eKLR,** (**Raila 2**) theSupremeCourt had an opportunity to discuss and differentiate between the legal and evidentiary burden of proof and stated as follows: - *"Though the legal and evidential burden of establishing the facts and contentions which will support a party's case is static and remains constant through a trial with the Plaintiff, however, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced. It follows therefore that once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the Respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce 'factual' evidence to prove his/her allegations of breach, then the burden shifts and it behooves the Respondent to adduce evidence to prove compliance with the law."* 1. As stated earlier, at no point did the evidential burden shift to the Respondent to prove anything. The position would have been different had the Appellants been able to prove that indeed the he had performed his part of the contract and the Respondent was in breach of the terms of the agreement, by failing to pay for the works. ***Whether the Respondent was estopped from requiring a report in proof of performance, having established a mode of operation that only required him to see the works and approve upon raising of invoices*** 1. The Appellant submits that the Respondent had established a *modus oparendi* of not requiring reports on the performance of the various phases of the contract and that he was therefore estopped from asking for a report even in the instant circumstances. My view on this is that the parties herein were bound by a written down contract. Their conduct was governed by the terms in the contract and not the mode of operation. 2. The Appellant submitted that he completed the works and handed over the site to the Respondent. I have considered this submission. I have also considered the provisions of clause 6.16 of the contract that requires all communication regarding the contract to be in writing. And therefore, the handover of a site to the owner is reasonably supposed to be supported by written handover notes. There are no such notes shown to the court. I will tie this to the written down notices contemplated under clause 6.12.1.2.1 of the contract that required sufficient notice in case of termination. From the record, none of the parties gave any notice to the other, there appear also not to have had any formal handover of the site. As earlier stated, this is the Appellant’s case because he is the own seeking the aid of the court and he should have endeavored to provide the court with the evidence that is required to prove his case. The parties herein appear to have disregarded every aspect of the contract and operated as if there was no contract, which is detrimental to their rights and obligations and poses a challenge in terms of enforcement of the said rights and obligations. 1. My finding is that in a written down contract, parties are bound by the contract and the question of the mode of operation would not be relevant in the circumstances. ***Whether the trial court erred in finding that the Appellant was not entitled to the payment of the amounts claimed in the plaint, having not proved that the works had been done.*** 1. The Appellant claimed that he had performed the works as agreed. He states that he completed the works in October, 2016 and that is when the Respondent failed to pay him. The Respondent on the other hand claims that the works done were shoddy and that the Appellant did not do the roof works. That the roof was done by DW3 who charged for the same and repairs for the shoddy job were done by DW2. I have considered this evidence, and my finding is that the trial court had found that the Appellant had not discharged the burden on proof placed on him to be entitled to the prayers that had been sought. As I have also found elsewhere in this Judgment, my finding is that the Appellant had not discharged the burden of proof and therefore I have no reasons to interfere with finding of the trial Magistrate. 2. The Appellant further submitted that the court failed to appreciate that the amounts claimed were purely for the labor, and which costs had been pre-calculated for every stage of the work done. It is correct that going by schedule 3 of the contract, the labor costs of every phase had been agreed upon. However, for the labor costs to accrue, there must be performance of the works. Evidence by DW1, DW2 and DW3 is that the roof was done in 2017 while the Appellant had left the site in 2016. The Appellant had therefore not done the roof works so that he can be paid for the labor of the roofing phase of the contract. 3. And although the Appellant submitted that the Respondent did not adduce any evidence to show that there was non-completion and that he contracted a different person to do the roof, the Respondent produced in court the quotation given by DW3 for the roof works and DW3 testified that he did the works and was paid. 4. The Appellant further submitted on the pleadings and stated that the Respondent did not plead that there was no roofing and did not tender evidence that there was no roofing done. The Appellant submitted that there was no quantification of the purported breach. I have considered the pleadings and the Respondent pleaded incomplete and shoddy works. DW1 testified and told court what was incomplete, including the roof. He testified on the shoddy works done on the walls, window sills and the staircase. He told court that he hired DW2 and DW3 to do the repairs and the roof respectively and the witnesses confirmed this to the court. The amounts spent on the roof works were given to the court and DW3 confirmed that he was paid for the work he did. I find that in as much as the case herein belonged to the Appellant, the Respondent tendered evidence in support of his defense. 5. Finally, the Appellant submitted and stated that parties are bound by their pleadings. This was in an attempt to demonstrate that the Respondent had not pleaded the question of the roof. He relied on the Supreme Court decision in [**Munya vs Kithinji & 2 others [2014] KESC 38 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/38/eng%402014-05-30) where the court reiterated the law and holding in **Philip Mungu Ndolo vs Omar Mwinyi Shimbwa & 2 Others Mombasa Election Petition Number 1 of 2013** stating that *“as a general principle in law, a party is bound by its pleadings. As such, any evidence which goes outside of the pleadings on record must be disregarded.”* 6. I have already considered the pleadings of the parties and more so those of the Respondent and found that the Respondent had pleaded incomplete and shoddy works. The Respondent has not therefore gone outside the pleadings. 7. In conclusion, I find that the Appellant has not demonstrated that the trial Magistrate erred in finding that the he was not entitled to the payment of the amounts claimed in the plaint, because the Appellant had not established breach of the contract by the Respondent. 1. **The upshot of the matter is that the Appellants Appeal herein lacks merit and the same is dismissed. The Respondents are awarded the costs of Appeal.** **Orders accordingly.** **JUDGMENT** delivered, dated and signed virtually at Nairobi This **26th** day of **June**, 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** *Leadsy* – court assistant *Elijah Fanuel Okoth* - the Appellant in person *Mr. Omondi T* - for the Respondent. Fanuel – I request for a copy of the proceedings and Judgment of the court and a 30 days’ stay. Mr. Omondi – No objection. Court - Stay is granted as prayed. A copy of proceedings and judgment be provided the Appellant upon payment of the requisite copying charges. **L. M. WACHIRA – JUDGE** **26/06/2026** ###