Nyals Engineering & Construction Ltd v Otieno t/a Allmart Stores (Civil Appeal E002 of 2025) [2026] KEHC 7976 (KLR) (15 May 2026) (Judgment)

Nyals Engineering & Construction Ltd v Otieno t/a Allmart Stores (Civil Appeal E002 of 2025) [2026] KEHC 7976 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 7976 (KLR) Republic of Kenya In the High Court at Homa Bay Civil Appeal E002 of 2025 OA Sewe, J May 15, 2026 Between Nyals Engineering & Construction Limited Appellant and Barrack Otieno t/a Allmart Stores Respondent (Being an Appeal from the Judgment and Decree delivered on 23rd December 2024 by Hon. C. Cheruiyo, Resident Magistrate, in Oyugis MCCC No. E015 of 2024) Judgment 1.This appeal was precipitated by the decision of the lower court in Oyugis MCCC No. E015 of 2024 in which the appellant, Nyals Construction Company Limited, was sued by Barrack Otieno t/a Allmart Stores, the respondent herein. The respondent’s cause of action was that in the year 2021, he entered into an agreement with the appellant for the supply of goods; and that the appellant had refused to pay an amount of Kshs. 505,264/= for goods supplied and delivered. Accordingly, the respondent prayed for judgment against the appellant in the following terms:(a)An order of specific performance(b)General damages for breach of contract(c)Costs of and incidental to the suit(d)Interest on [a], [b] and [c] above(e)Any other relief that the court may deem fit and just to grant. 2.The appellant denied the respondents allegations vide a statement of defence dated 5th March 2024. Its assertion was that it had fully settled the accounts between the parties and paid all sums due to the respondent. Upon hearing the parties, the learned Magistrate found in favour of the respondent. In particular, the lower court found that the appellant was supplied with goods by the respondent for which he had not fully paid. Judgment was therefore entered in the respondent’s favour in the sum of Kshs. 505,264/= together with interest and costs. The claim for general damages for breach of contract was however declined. 3.Being aggrieved by the decision of the lower court, the appellant filed the instant appeal on the following grounds:(a)The learned Magistrate erred in law and fact in failing to consider the evidence on record.(b)The learned Magistrate erred in law and in fact in stating that she was faced with difficulties in ascertaining the truth instead of being guided by the evidence adduced in court.(c)The learned Magistrate erred in law and in fact in finding that the payments were made in bits but not in full without any evidence to that effect.(d)The learned Magistrate erred in law and in fact in failing to consider the evidence on the record that the defendant had made full payment.(e)The learned Magistrate erred in law and in fact in failing to pronounce itself in its analysis on the amount that had been paid by the respondent.(f)The learned Magistrate was completely biased against the appellant. 4.The appeal was canvassed by way of written submissions; directions to that effect having been given on 24th June 2025. The appellant complied and filed written submissions dated 25th July 2025. It relied on Mbogo and another v Shah [1968] EA 93 and Selle and another v Associated Motor Boat Company and others [1968] EA 123 on the jurisdiction and responsibility of an appellate court. 5.In the appellant’s submission it was significant that the learned magistrate acknowledged that she was faced with difficulties in ascertaining which version, between the respondent’s and the appellant’s, to believe. It submitted that the acknowledgement meant that the evidence presented by the respondent was insufficient; and therefore the suit ought to have been dismissed. On that account the appellant prayed that the appeal be allowed as no additional evidence is expected on appeal. The appellant relied on Musera v Mwechelesi & another [2007] KLR 159 to buttress its argument. 6.Accordingly, the appellant proposed the following issues for determination:(a)Whether the pleadings and the evidence before the lower court supported an award of damages and if so, was it proved?(b)Whether there was a contract between the parties.(c)Whether the trial court based its decision on the evidence before it.(d)Was the learned Magistrate biased?(e)Who bears the costs of the appeal and the suit before the lower court? 7.The appellant submitted at length on whether the pleadings and the evidence before the lower court supported an award of damages. However, I have no hesitation in rejecting those submissions as misconceived noting that at paragraph 6 on page 3 of her judgment the learned magistrate held that general damages for breach of contract was not awardable and on that account, that aspect of the respondent’s claim failed. 8.On whether there was a contract between the parties, the appellant submitted that the respondent never entered into an agreement with it for the supply of goods, as no such agreement, duly executed by the parties, was ever produced before the lower court. The appellant discounted the statement of account relied on by the respondent contending that it contravenes section 3(1) of the Law of Contract Act which requires that an agreement be in writing and duly signed by the parties. In this regard, the appellant relied on Patrick Tarzan Matu & another v Nassim Shariff Abdulla & 2 others [2009] eKLR, Civil Appeal No. 93 of 2004: Giro Commercial Bank Ltd v Eccon Construction & Engineering Ltd & another and Silverbird Kenya Ltd v Junction Ltd & 3 others [2013] eKLR. 9.The appellant also addressed the court on its allegations of bias against the learned Magistrate. The appellant relied on Medicament and related Classes of Goods [2001] 1 WLR 700 and Attorney General v Anyang’ Nyong’o & others [2007] 1 EA 12, among other authorities, as to the definition of bias and the applicable test for determining whether a judge or magistrate is biased. In this instance, the appellant submitted that, by finding in favour of the respondent in the absence of evidence, the learned magistrate was biased and did not exercise her discretion judiciously. 10.On his part, the respondent submitted that it entered into a valid and enforceable contract with the appellant, the absence of a written agreement notwithstanding. In his submission sufficient evidence was presented before the lower court, including documentary evidence, to demonstrate that goods were delivered at the appellant’s instance for which part payment was made, leaving a balance of Kshs. 505,264/=. He relied on the case of Akiba Micro Financing Ltd v Ezekiel Chebii & 14 others [2012] eKLR that invoices and delivery notes are sufficient proof of a contractual relationship where the transactions are uncontroverted. 11.The respondent also relied on Pius Kimaiyo Langat v Cooperative Bank of Kenya Ltd [2017] KECA 152 (KLR) and National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd [2001] eKLR for the proposition that parties are bound by the terms of their contract and that it is not the business of the court to re-write agreements for the parties. The respondent also submitted that it was entitled to specific performance and cited several authorities in this regard. Since the issue does not arise in this appeal, those submissions are irrelevant. 12.In a first appeal like this, it is the duty of the court to re-evaluate the evidence that was presented before the lower court and make its own conclusions thereon; a principle that was aptly expressed in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, thus:“...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 retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...” 13.The respondent, a businessman trading in hardware materials, testified before the lower court on 12th September 2024. His testimony was that he had engaged in business dealings with the appellant for more than 15 years. He adopted his witness statement dated 9th September 2022 in which he stated that he entered into an agreement with the appellant for the supply of goods on account; and that he would supply the goods for which the appellant would make instalment payments. 14.While acknowledging that the appellant had made part payment in the sum of Kshs. 550,000/=, the respondent stated that there remained an outstanding balance of Kshs. 505,264/=. He further testified that he was constrained to filed the lower suit because the appellant had failed, neglected and/or refused to settle that balance. The respondent produced several documents before the lower court in proof of his case. The documents included a statement of account (Exhibit 2) and six invoices marked Exhibits 3(a) to (f). 15.The appellant relied on the evidence of one of its directors, Joshua Ouma Mwamba (DW1). He likewise adopted his witness statement dated 14th May 2024 and the appellant’s list and bundle of documents filed before the lower court. The appellant conceded that he engaged the respondent for the supply of goods, including a water tank for Mamboleo Slaughterhouse that it was putting up. The appellant contended that it duly paid for the supply of the water tank on 14th July 2018 via Mpesa. It was categorical that he paid the respondent for all the goods sold and delivered by him. 16.I have given careful consideration to the foregoing summary of evidence in the light of the appellant’s grounds of appeal and the written submissions filed herein by the parties. I propose to start with the appellant’s contention that the learned Magistrate was biased against it. I find the ground misplaced because as an arbiter, the perceived conduct of the Magistrate ought not to form part of the merits or otherwise of the litigation in question or this appeal. There is a separate and approved way of canvassing cases of perceived bias. The procedure was aptly captured as follows in Samson K A Tim v Hillary Kangogo Songoyo & another [2014] KEELC 200 (KLR):Any party is allowed to raise the issue whether a particular Judicial Officer ought to hear or continue hearing a particular matter, and any party is at liberty to ask that a particular Judicial Officer to recuse himself or herself from hearing the said particular matter, if he feels that he has good reason. It is prudent that such applications first be heard before the particular Judicial Officer. If the said Judicial Officer finds merit in the said application, then the officer will recuse himself/herself. If the judicial officer does not find merit in the said applications then, the remedy of the applicant is to file an appeal or revision against the said decision. It is not wise for applications for recusal to be made before another Judicial Officer, even if such other officer is of a higher rank or holds an office that is superior to that of the officer sought to recuse himself/herself. It is best that one Judicial Officer does not pass judgment on another officer, and decide whether or not such officer needs to continue or recuse herself from hearing the matter for the reasons tabled, unless on appeal. Such applications need to first be tabled before the particular Judicial Officer and the said Judicial Officer be given a chance to assess whether or not she needs to recuse herself from the suit. 17.Indeed, the High Court has the discretion to transfer a case from one magistrate to another where there is an apprehension of bias, but that discretion can only be invoked in situations where there is sufficient evidence to back up that apprehension and before a final determination is made by that magistrate in the matter in question. Hence in Kamande & 3 Others v Republic [2014] eKLR thus:“When giving consideration to an application for the transfer of a case, the court will assess whether the applicant’s apprehension was reasonable and founded on sufficient material. The reason for laying emphasis on these factors is that the court has a duty to encourage trust in the integrity and independence of the Judiciary. Therefore allegations which may be directed at Judicial Officers, alleging bias and lack of fairness must not therefore be accepted without there being substantive evidence to back them.If a court was too quick to accept allegations of bias directed against it officers, without first demanding proper substantiation, it would erode the very foundation upon which the judiciary was founded. At the same time, the court must balance this consideration with the need to ensure that justice is not only done, but also seen to be done.” 18.It is plain therefore that an allegation of bias is not an appropriate ground of appeal and I have no hesitation in disregarding that particular ground. 19.The issues for determination, in my careful consideration boil down to whether the learned Magistrate erred in passing judgment in favour of the respondent for the payment of Kshs. 505,264/=. 20.National Bank of Kenya Ltd vs. Pipeplastic Samkolit (K) Ltd & Another (supra) the Court of Appeal held that:“…The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved…” 21.Similarly, in RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Production) [2010] UKSC14, [45] it was held thus:“The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.” 22.There is no gainsaying that a contract need not be in writing to be valid. Section 3 of the Law of Contract Act which the appellant made reference to is explicit that it is only in respect of certain contracts; which contracts have been specified in that provision. Moreover, the appellant expressly conceded before the lower court that it had a contractual relationship with the respondent for the supply of goods. It is therefore my finding that there was a binding contract between the parties. 23.As to whether the appellant was indebted to the respondent for goods supplied and delivered, the lower court could only make a determination on the basis of the evidence presented. Section 107 of the Evidence Act is explicit that:“(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.” 24.Likewise, Section 108 of the Evidence Act provides that:The onus of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 25.Accordingly, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] eKLR the Court of Appeal held: -“…we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…” 26.The respondent presented a statement of account that demonstrated how the sum claimed had been computed. That evidence was not rebutted by the appellant. It is noteworthy that the appellant exhibited copies of the tender award for the Mamboleo Slaughterhouse, cheque dated 9th February 2017, Mpesa transactions for 14th July 2018 and 23rd August 2018 and a bundle of photographs. That evidence clearly fell short of explaining away most of the activities set out in the respondent’s statement of account. In the circumstances the learned Magistrate cannot be faulted for arriving at the conclusion that the appellant was still indebted to the respondent and was therefore liable to pay the balance of Kshs. 505,264/=. 27.In Drappery Empire v Attorney General (supra) Hon. Rawal, J (as she then was) was more pointed in her approach. She held that:“...where the circumstances leading to the deliveries of goods are not challenged and stand uncontroverted due to the failure by the defendants to adduce evidence the standard of proof in civil cases (on the balance of probabilities) has been attained by the plaintiff.” 28.In the result, I find no merit in the appeal. The same is hereby dismissed with costs.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY, 2026................................OLGA SEWEJUDGE