https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8739

Kigzwel Company Ltd v BOM Ribe Boys High School (Small Claims Appeal E117 of 2024) [2026] KEHC 8739 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEHC 8739 (KLR) Republic of Kenya In the High Court at Mombasa Small Claims Appeal E117 of 2024 PK Rotich, J June 17, 2026 Between Kigzwel Company Ltd Claimant and Bom Ribe Boys High School Respondent (Being an Appeal from the Judgment of Hon. V. Muthoni (RM) delivered on 27th March, 2024 in Mombasa SCCCOM. Case No. E897 OF 2023) Judgment 1.The appellant in its statement of claim filed on 23rd October, 2023 sought Judgment against the respondent for the sum Kshs. 600,000, interest and costs. According to the complainant, vide a tender for Supply of Physical Education (P.E) kits issued on 27/11/2019, it supplied the Respondent 300 P.E Kits at a price of Kshs. 2,000, which the respondent has failed to pay for, hence this suit. 2.The respondent entered appearance and filed a response to the claim on 12th February, 2024 denying the appellant’s claims. The respondent also pleaded that the claim is fully settled. 3.CW1, Davidson Mzera Kigombe, a Director of the appellant stated that he seeks payment of Kshs.600,000 for games kits he supplied to the respondent but which was not paid for. The respondent’s payment vouchers, CW1 stated, show payments of Kshs.150, 000/= and Kshs.450, 000 were made to Kyemuka Investments and not Kigzwel Company Limited. The respondent, further, stated Kyemuka Investments is run by Gabriel Nzingu and that he sent him to purchase the tender documents for the subject contract herein. CW1 also stated that the receipts and tender documents of the contract were wrongly indicated Kyemuka and that he notified Gabriel Nzingu of the mistake and called the school’s bazaar to correct it. CW1, further, stated there was no written consent by the claimant authorizing the Respondent to pay Kyemuka. 4.On X-examination CW1, confirmed that he sent Mr Gabriel Nzingi to apply for the tender for the subject contract herein. At the same time, he stated Gabriel had no authority to conduct any business for the appellant. 5.On being re-examined, CW1 stated he gave the appellant money to purchase the tender documents. 6.RW1, Nduria Kunga Chea, a bazaar at Ribe Boys High School, confirmed Gabriel applied for tender of the subject contract herein and that Kyamuka Investments paid for the tender documents. The witness, further, stated that CW1 never called him. 7.On X-examination, RW1 stated he did not make an effort to verify Gabriel was a Director but relied on the receipt for Kshs. 1,000 paid for the tender documents. PW1, however, admitted that the invoice and other documents produced in Court shows the subject PE kits herein were delivered by Kigzwel Company Limited. 8.In its Judgement, the trial Court found that the respondent rightly paid the monies claimed herein being the person they dealt with on behalf of the appellant. The Court also held that the respondent can not be faulted for not inquiring into the person’s capacity and questioned why the appellant could not pursue Gabriel Nzingu who was paid the monies claimed herein. As a result of the above findings, the trial Court dismissed the appellant’s suit with stating that the appellant did not discharge the burden of proof. 9.Being dissatisfied the appellant preferred this appeal. The appeal is based on 5 grounds which can be summarized into 2 grounds. These are;1.That the Learned Adjudicator erred in holding that the Respondent discharged its payment obligation to the appellant by making payment to a third party Kyemuka Investments.2.The Learned Adjudicator erred in law and in fact in finding that an agency relationship existed between the Appellant and Gabriel Nzingu/Kyemuka Investments. 10.The Appellant, Kigzwel Company Limited, is a limited liability company whose directors are Ruthwel Chao Mwakio and Davison Mzera Kighombe, as confirmed by copy of record (R.Exhibit 1) produced in Court. Following a successful tender bid, the appellant submitted, the respondent issued it a Local Purchase Order (Quotation No. 254 dated 27th November 2019) for the supply of 300 students' P.E. kits at a unit price of Kes. 2,000/-, giving a total contract sum of Ksh. 600,000. The Appellant averred that it duly supplied the goods and raised Invoice No. 001 for Kshs. 600,000/- dated 8th February 2020 not disputed by the rrespondent. 11.Despite a formal demand notice dated 23rd June 2023, the appellant stated. the respondent failed and/or refused to settle the invoice. 12.Proof of payment, the appellant submitted, requires evidence both that money left the payer's hands and that it reached the payee or someone with lawful authority to receive it on the payee's behalf. On the totality of the evidence, tendered herein, the appellant submitted, the respondent failed to prove prove payment to the appellant. 13.The appellant, further, submitted that the respondent produced no agreement, written instruction, letter of authority or board resolution authorizing Kyemuka Investments to receive payment on behalf of the appellant and that two are separate legal entities. 14.To support the above position, the appellant relied on the decision of the Court of Appeal in Kenya Breweries Limited & 3 others v Symon Wairobi Gatuma [2017] eKLR quoted with approval Victor Mabachi & Another v Nutinn Batex Limited, Civil Appeal No. 247 of 2005, where it was held:“[A company] is a body corporate, is persona jurisdica, with a separate independent identity in law, distinct from its shareholders, directors and agents unless there are factors warranting a lifting of the veil." 15.On the other hand, the respondent pointed out that Mr Gabriel Nzingu bid for the subject tender herein. This was after he was given a sum of Kshs 1000 by the appellant, the respondent submitted, to purchase the tender documents and receipt issued in the name of Kyemuka investments. The respondent, further, pointed that the appellant’s Director (CW1) confirmed that Mr. Gabriel Nzingu received and signed on his behalf the letter of award from the respondent dated 25th November 2019. 16.Relying on the evidence on record, the respondent submitted that Mr. Gabriel Nzingu and the appellant presented themselves to the respondent as principal and agent. To support this position the respondent relied on the case of Nepro Capital Investment Ltd v SGS (Kenya) Ltd & another [2018] eKLR. In this case the Court affirmed:“The actions of the 1st respondent are the actions of its principal… Any action of the agent, lawful or otherwise, is the act of the principal.” 17.It was, therefore, the respondent’s further, submission that an agency relationship existed between them and the respondent is bound by the actions of Gabriel Nzingu. It was also the Respondent’s submission that the Respondent paid the whole sum of Kshs 600,000/= and paid it to the rightful party, there being a principal-agent relationship between the appellant and Kyemuka Investments through its proprietor Gabriel Nzingu. 18.The Court has carefully re-evaluated the evidence adduced before the trial Court. It has also considered the evidence submissions by the parties. This being first appeal the Court is obligated to re-evaluate the evidence adduced in the trial in order to arrive at its own independent conclusion bearing in mind that it has neither seen or heard the witness and should make allowance in this respect (see: Selle vs Associated Motor Boat Company (1968) EA). Having analyzed the evidence on record, the pleadings and submissions by the parties, the court only identified one issues for determination in this matter. The issue is whether the respondent discharged its payment obligation of the goods supplied to it by the appellant. 19.It is common ground that the appellant supplied the 300 students' P.E. kits at a unit price of Kshs. 2,000 totalIng contract sum of Ksh.600,000 and the respondent paid the full amount in full. PW1, Davison Mzera Kighombe the appellant’s director testified that he sent Gabriel Nzingu of Kyemuka Investments to purchase the tender documents for the subject contract herein which he did in the name of Kyemuka Investments. CW1, further, confirmed on cross-examination that Mr. Gabriel Nzingu received and signed on his behalf the appellant letter of award from the respondent dated 25th November 2019. The tender LPO and payment vouchers for subject goods herein were, however, issued to the appellant and the appellant supplied the goods and the full purchase price of Kshs.600,000 was paid to Keyumuka Investments. In this matter appellant seeks to be paid the said amount stating Kyemuka did not have its authority to receive the monies on its behalf and that the respondent paid the wrong person. 20.It is not in dispute that that Mr. Gabriel Nzingu of the Kyemuka was known to appellant and acted on its behalf by purchasing the tender documents. He also signed tender award documents on behalf of the appellant. This Court, therefore, agrees with the finding of the trial Court that Kyamuka acted on behalf as it severally in respect to the subject contract herein in receiving payment Kshs.600,000 from the respondent. 21.If any fraud was committed in paying Kyemuka Investment, the appellant, should report this matter to relevant government agencies for investigation and appropriate action again. It will be against public policy and unconscionable for this Court to order the Ribe Boys High School to pay twice for the goods supplied herein. 22.The upshot of my findings above, is that this Appeal lacks merit and the same is dismissed. 23.The Court however, declines to award costs of the Appeal to the Respondent and sets aside the costs awarded to the Respondent in the trial court because both parties were involved in the impugned contract herein. DATED AND DELIVERED AT ONLINE VIA MS TEAMS THIS 17TH JUNE 2026.HON. P. K. ROTICHJUDGE