https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9289

 **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **CIVIL APPEAL NO. E065 OF 2025** ## **JOSEPH WAMBUGU MURIITHI……..………......................... APPELLANT** ## **VERSUS** ## **BOARD OF MANAGEMENT WATAKU** ## **BOYS SECONDARY SCHOOL……………………………......RESPONDENT** **JUDGMENT** 1. This is an Appeal from the Judgment and Decree of Hon. E.G Nderitu, Chief Magistrate dated 1.10.2025 arising from Nyeri CMCC No. E436 of 2021. 2. The Memorandum of Appeal dated 31.10.2025 raised the following Grounds: 1. The learned magistrate erred in law and fact in failing to take into account all evidence on record hence arriving at a wrong decision. 2. The learned magistrate erred in law and fact in misdirecting herself on the issues before her. 3. The learned magistrate erred in law and fact in failing to appreciate that goods had been supplied and not paid for. 3. The Plaint dated 16.12.2021 claimed a sum Ksh. 1,196,000/= plus costs and interest. It was averred that on diverse dates between 23.10.2019 and 5.7.2021, the Respondent requested and the Appellant supplied dry firewood. 4. It was pleaded that the Respondent paid for firewood supplied except Ksh. 1,196,000/= which the Appellant claimed. 5. The Respondent entered appearance and filed Defence dated 1.2.2022 denying the averments in the Plaint. They averred that there were no documents showing the respondents requested supply of firewood. There were also no documents showing the firewood supplied, what was paid and mode of payment. 6. The Trial Court heard the parties and proceeded to render Judgement dismissing the Appellant’s case on the basis that the Appellant failed to discharge his burden of proof. Aggrieved by the finding of the lower Court, the Appellant lodged a Memorandum of Appeal hence this Appeal. **Evidence** 1. During the hearing, PW1 was the Appellant. He relied on his witness statement and produced the documents in the list of documents. It was his stated case that he had delivered the firewood for many years. He had filed a tender. Delivery notes could be stamped and signed. Delivery notes remained with the school. Invoices could be signed acknowledging delivery. He worked with both the former and current principal of the respondent. On cross examination, it was his case that he had worked with the school for more than 20 years. He did not have a copy of the tender. He had 2 LPOS and several invoices. he stated that the current Principal paid Ksh. 200,000 in 2021. 2. PW1 was the Appellant. He adopted his witness statement as his evidence and produced the documents contained in his list of documents. He testified that he had supplied firewood to the Respondent school for many years. He indicated that he had successfully tendered for the supply. According to him, delivery notes would be stamped and signed upon delivery, after which they remained with the school. He further stated that invoices would also be signed to acknowledge receipt of the goods delivered. He worked with both the former and the current principal of the Respondent school during the period of supply. 3. Upon cross-examination, PW1 stated that he had supplied firewood to the school for over twenty years. He acknowledged that he did not have a copy of the tender document. He, however, possessed two Local Purchase Orders and several invoices in support of his claim. He further testified that the current principal made a payment of Ksh. 200,000 to him in the year 2021. 4. DW1 for the Respondent was Paul Mwangi. He was principal of the Respondent from May 2021. There were no Local Purchase Orders issued to the appellant. There were only invoices that were sent to the school. On cross examination, the Appellant had not been prequalified as supplier. he indicated that Local Purchase Orders supposed to be issued for procurement. He did not know that invoices doubled as delivery notes. His evidence was that a supplier could not supply goods without an LPO. Without LPO, it was difficult to prove supplies. 5. DW1 was Paul Mwangi, the Principal of the Respondent school from May 2021. He testified that no Local Purchase Orders had been issued to the Appellant and that the only documents received by the school were invoices submitted by the Appellant. He stated that the school was not aware of any tender and or supply, that is outstadning. 6. On cross-examination, DW1 stated that the Appellant had not been prequalified as a supplier. He explained that, under the procurement process, a Local Purchase Order ought to be issued before any goods are supplied. He further testified that he was unaware that the invoices relied upon by the Appellant also served as delivery notes. According to him, a supplier could not lawfully supply goods to the public school without first receiving a Local Purchase Order. He maintained that, in the absence of a Local Purchase Order, it would be difficult to establish that any supplies had in fact been made to the school. **Submissions**. 1. The Appellant filed submissions dated 18.2.2026. It was submitted that the court did not consider evidence of the Appellant. In this regard, it was submitted that delivery and acceptance of goods was established and an obligation to pay arose. Reliance was placed on inter alia [**Kenya Breweries Limited v Kiambu General Transport Agency Limited [2000]** KECA 417 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2000/417/eng%402000-08-11). The Appellant submitted that this was not a procurement dispute and the absence of LPO did not extinguish liability. 2. The Appellant relied on **Pyramid Construction Co Ltd v Delphis Bank Ltd (2005)**eKLR based on which it was submitted a contract may be inferred from conduct and performance. It was also submitted that procurement procedures were intended for internal regulations and could not invalidate transactions where goods supplied were accepted. Reliance was placed *inter alia* on **Municipal Council of Mombasa v Kenya Breweries Ltd (2002)**e KLR. 3. The Respondent filed submissions dated 7.4.2026 by which it was submitted that the Appellant did not prove his case. The invoices produced were for dates later to the pleaded 23.10.2019- 5.7.2021. 4. reliance was placed on the case of **Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, decided by the Malawian Supreme Court of Appeal. W**hile submitting that the Appellant was bound by his pleadings,stated 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. 1. It was submitted that procurement procedures were not complied with as required under Section 70 and 72 of the Procurement and Asset Disposal Act. the said section 70 provides as follows: 2. The Authority shall issue standard procurement and asset disposal documents and formats as prescribed for use by procuring entities. 3. A procuring entity shall use standard procurement and asset disposal documents prescribed under subsection (1), in all procurement and asset disposal proceedings. 4. The tender documents used by a procuring entity pursuant to subsection (2) shall contain sufficient information to allow fair competition among those who may wish to submit tenders. 5. An accounting officer of a procuring entity shall be responsible for preparation of tender documents in consultation with the user and other relevant departments. 6. (5)A procuring entity may charge a fee for obtaining tender documents as prescribed by regulations and stated in the tender documents. 7. The tender documents shall set out the following 1. The specific requirements prepared under [section 60](https://new.kenyalaw.org/akn/ke/act/2015/33/eng%402022-12-31#part_VI__sec_60) relating to the goods, works or services being procured and the time limit for delivery or completion; 2. If works are being procured, relevant drawings and bills of quantities shall be disclosed and the projects total estimated cost evaluated only on the basis of criteria disclosed, but a person shall not be disqualified on the basis that a bidder quoted above or below a certain percentage of engineer's estimates; 3. The general and specific conditions to which the contract will be subject, including any requirement that performance security be provided before the contract is entered into; 4. The tender number assigned to the procurement proceedings by the procuring entity; 5. Instructions for the preparation and submission of tenders including: 1. The forms for tenders; 2. The number of copies to be submitted with the original tender; 3. Any requirement that tender security be provided and the form and amount of any such security; 4. Any requirement that evidence be provided of the qualifications of the person submitting the tender; 5. The procuring entity facilitation and the submission of tender documents by the tenderer through either soft or hard copy, but it will be the onus of the tenderer to ensure the adequate submission of said documents; 6. The procurement function ensuring that where necessary, the preferences and reservations of the tender are clearly spelt out in the bidding documents; 6. An explanation of where and when tenders shall be submitted, a statement that the tenders will be opened immediately after the deadline for submitting them and an explanation of where the tenders will be opened; 7. A statement that those submitting tenders or their representatives may attend the opening of tenders; 8. A statement of the period during which tenders must remain valid; 9. The procedures and criteria to be used to evaluate and compare the tenders; 10. A statement that the accounting officer of a procuring entity may, at any time terminate the procurement proceedings without entering into a contract in accordance with section 63 of the Act; 11. A provision for providing details of sub-contractors for the bidder, where applicable, and a declaration that the sub-contractors have complied with this Act; and 12. Anything else required, under this Act or the regulations, to be set out in the tender documents. 8. The above section deals with the standard tenders. on the other hand, section 72 of the Procurement and Asset Disposal Act, provides as follows: Contractors, suppliers and consultants shall comply with the provisions of this Act and the Regulations. 1. The responsibility for complying with Act and regulations is placed upon the Contractors, suppliers and consultants. Concomitantly, I shall dismiss this early the allegations that procurement procedures were intended for internal regulations and could not invalidate transactions where goods supplied were accepted. 2. The Respondent relied on authorities *inter alia,* in Royal Media Services v **Independent Electoral and Boundaries Commission & 3 Others (2019)**e KLR and Board of Management Friends School **Kaimosi Gorlrs v Alicia Bakers and Confectionaries Limited (2026)**eKLR. Based on these authorities, it was submitted that procurement procedures were applicable to the Respondent as public school and the Appellant was required as supplier to ensure due diligence and to secure a valid contract backed up by requisite documents. 3. The Respondent also submitted that invoices and a Local Purchase Order alone could not attest to receipt of goods. They cited **E.P. Communications Limited v East Africa Courier Services Limited [2019]**KEHC 1298 (KLR), where Gikonyo J, stated as follows: 13…. The Appellant may have supplied the goods, but courts of law act on hard evidence not sympathy or speculation. In the absence of a delivery note or evidence of receipt of the goods, it becomes doubtful whether the goods were delivered. 1. The court was urged to dismiss the appeal with costs. **Analysis** 1. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. ThisCourt will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong. In the case of **Mbogo and Another vs. Shah** [1968] EA 93 the court stated: “…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 1. The duty of the first appellate court was set out in the case of **Selle and another Vs Associated Motor Board Company and Others** [1968]EA 123, where the court in their usual gusto, held as follows;- “.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the subordinate Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 1. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the subordinate court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017)eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;- “Courts adopt the objective theory of contract interpretation, and profess to have the overriding aim of giving effect to the expressed intentions of the parties when construing a contract. This is what sometimes is called the principle of four corners of an instrument, which insists that a document's meaning should be derived from the document itself, without reference to anything outside of the document (extrinsic evidence), such as the circumstances surrounding its writing or the history of the party or parties signing it. 1. In Gerald Dworkin, *Odgers' Construction of Deeds and Statutes* (5th edn, Sweet & Maxwell 1967), the learned author at p. 106 states as follows: “Parol Evidence and written documents. It is a familiar rule of law that no parol evidence is admissible to contradict, vary or alter the terms of a deed or any written instrument. The rule applies as well as deeds as to contracts in writing. Although the rule is expressed to relate to parol evidence, it does in fact apply to all forms of extrinsic evidence. As it stands this is not a rule of interpretation but of law, and means that the interpretation of the document must be found in the document itself with the addition if necessary of such evidence as we have previously seen is admissible for explaining or translating words and expressions used therein” 1. This court’s **the jurisdiction to review the evidence should be exercised with caution.** In the cases of **Peters vs Sunday Post Limited [1958] EA 424**, the court therein rendered itself as follows:- **“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be e4xercised with caution: it is not enough that the appellate court might have come to a different conclusion…”** 1. Bearing in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet this court must reconsider the evidence, evaluate it itself and draw its own conclusions. 2. The burden was with the Appellant to prove his case against the Respondent. On this subject, Section 107-109 of the Evidence Act, Cap 80 Laws of Kenya provides that: 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.” *.* 1. A party who invokes the aid of the law and asserts affirmative of an issue has the burden to prove the matters in issue. In **Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334,** the Court of Appeal held that: **“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”.** 1. It follows that the initial burden of proof lies on the Plaintiff, but the same may shift to the Defendant, depending on the circumstances of the case. **The burden of prove also casts upon any party, the burden of proving any particular fact which he desires the court to believe in its existence.** In **Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR** it was held that: **“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”** 1. 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: 2. **“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.” 3. This was further enunciated in the case of [**Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions [2015] KECA 616 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/616/eng%402015-06-19)**,** where the Court of Appeal [J Karanja, GG Okwengu, CM Kariuki, JJA] stated as follows: 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.” 1. Courts have established that **the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Lord Nicholls** of Birkenhead in **Re H and Others (Minors) [1996] AC 563, 586**held that; **“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”** 1. With the above guide, in the instant Appeal, the appellant herein claimed a sum Ksh. 1,196,000/= plus costs and interest. It was not enough for the Appellant to assert breach of contract on the part of the Respondent without laying basis. The court is however, alive that whether or not the Appellant proved his case, the Appellant as Plaintiff had the burden to prove in the first instance the allegations that he supplied firewood over the alleged period and firewood worth Ksh. 1, 196,000/= having been received was not paid for. 2. The Appellant did not adduce any contract with the Respondent. His case was based on invoices which he submitted amounted to contracts. The court has reevaluated the tenure of the invoices.they do not relate to any supply and in particular some are outside the period under review. They do not state which ones out of them were paid and which ones were not paid within the pleaded period. There were no connected local purchase orders or even a request for quotation. Public entities are bound to follow the law in regard to supply. The questions of inferring a contract relate to private entities. Even if there was evidence ff delivery, which was not available, still payment could not be done in absence of a contract. What the appellant did was just to throw figures to the court and wait for an order from court for payment. While addressing special damages, which can aptly apply to the liquidated claim hereon, In the case of **David Bagine v Martin Bundi[1997]** eKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. In**Bonham Carter v Hyde Park Hotel Limited (1948)** 64 TLR 177)**,**where he that: [The] Plaintiffs must understand that if they bring actions for damages, it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it. 1. The allegations by the Appellant as to the Respondent breaching the supply of firewood agreement were mere assertions. There was no basis to found a contract of supply of firewood. As found the lower court, the Appellant did not tender any Local Purchase Order. The Invoices were his own generated documents and he was dealing with a public school. 2. In the circumstances, the claim was not proved. There were no delivery notes or Local Purchase Orders. Even without applying the strict procurement rules, the claim would still have failed. I dismiss the Appeal. 3. 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. 1. 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 if 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. 1. 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)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/31/eng%402014-03-04), 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 litigation 22. 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. 1. In the circumstances of this case, an award of costs of Kshs. 75,000/- to the Respondent is just and proper. **Determination** 1. In the upshot, I make the following orders: - 2. The Appeal lacks merit and is dismissed *in limine*. 3. The Respondent shall have costs of the Appeal assessed at Ksh. 75,000/- 4. 14 days right of appeal. 5. File is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** this 9th day of **June** the year of our Lord Two Thousand and Twenty - Six. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Ms. Ngari for the Appellant N/A for the Respondent Court Assistant- Martin