https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10799

Nyasinga Transporters Ltd v Subira Shipping Contractors Co Ltd (Civil Appeal E114 of 2024) [2026] KEHC 10799 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10799 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E114 of 2024 J Ngaah, J July 17, 2026 Between Nyasinga Transporters Limited Appellant and Subira Shipping Contractors Co Limited Respondent (Being an appeal against the ruling and order of Hon. J.B. Kalo, Chief magistrate,delivered on 28th March 2024 at the Chief Magistrate's Court at Mombasa in Mombasa CMCC No. E791 of 2022) Judgment Introduction 1.This is a first appeal against the ruling and order of the Chief Magistrate's Court at Mombasa (Hon. J.B. Kalo, CM) delivered on 28th March 2024 in Mombasa CMCC No. E791 of 2022, Subira Shipping Contractors Co. Limited v Nyasinga Transporters Limited. By that ruling, the trial court struck out the statement of defence filed by the appellant, who was the defendant in the court below, and entered judgment in favour of the respondent, who was the plaintiff, for the sum of Kshs.3,539,504.80, together with interest and costs. 2.For convenience I retain the description of the parties as they appeared before the trial court where that assists clarity, while referring to Nyasinga Transporters Limited as "the appellant" and Subira Shipping Contractors Co. Limited as "the respondent". Background 3.The respondent instituted the suit before the trial court by a plaint dated 12th May 2022, filed on 19th May 2022 and framed as a fast-track claim. It pleaded that on diverse dates between 16th August 2021 and 28th February 2022 it entered into a contract with the appellant under which it would provide transport services — specifically, the haulage of fuel oil from Mbaraki Depot, Mombasa, to Rabai Power Station, Rabai — for an agreed consideration of Kshs.7,029,504.80. 4.The respondent pleaded that upon its reminding the appellant to settle the outstanding balance, the appellant responded, by an email dated 24th November 2021, addressed to one Denis Kerabu, asking him to settle a debt owed to the appellant so as to enable the appellant to in turn settle its arrears with the respondent. The respondent characterised this email as an unequivocal acknowledgment of the debt. The respondent further pleaded that it sent WhatsApp messages to the appellant on 9th December 2021 demanding payment, to which the appellant is said to have responded by acknowledging the financial strain caused by the delay and promising to settle the arrears; this, too, the respondent characterised as a further unequivocal acknowledgment of the debt. 5.The plaint further averred that, notwithstanding these acknowledgments, the appellant paid only Kshs.1,990,000, in two instalments of Kshs.995,000 each, by cheques numbered 00204 and 00209, and thereafter a further Kshs.1,500,000 by cheques numbered 00220 and 00222, following a demand letter from the respondent's advocates dated 8th March 2022. The respondent pleaded that a balance of Kshs.3,539,504.80 remained outstanding, and sought judgment for that sum together with interest at 13% per annum from 16th September 2021, being the date of first default, and costs of the suit. 6.The appellant entered a statement of defence dated 15th June 2022, filed on 21st June 2022. At paragraph 1 it denied each and every allegation in the plaint, including the claimed sum of Kshs.3,539,504.80. At paragraphs 3 to 6 it denied the existence of any contractual relationship with the respondent and averred that any payments due had been made and settled in full. At paragraph 7 it averred that it had no record of any books of account or documentation evidencing any form of engagement with the respondent. At paragraph 8 it denied the existence of any outstanding balance and denied any obligation to pay interest at 13% per annum. 7.The respondent moved the trial court by a notice of motion dated 15th November 2022, seeking, in substance, to have the defence struck out as a sham and summary judgment entered against the appellant. That application was, by consent of the parties recorded on 15th May 2023, withdrawn with costs to the appellant. The respondent thereafter filed a fresh notice of motion dated 18th May 2023, supported by an affidavit and extensive annexures, again seeking to strike out the appellant's defence and for judgment to be entered as prayed in the plaint. The appellant opposed this application by a notice of preliminary objection dated 16th June 2023. 8.The parties filed and exchanged written submissions on the application: the respondent's submissions dated 28th August 2023 appear at pages 1164–1197 of the Record of Appeal, and the appellant's submissions dated 7th September 2023 appear at pages 1198–1201. The decision of the trial court 9.The trial court delivered its ruling electronically on 28th March 2024. It ordered as follows:“ 1.That the defendant's statement of defence is hereby struck out and judgement is hereby entered for the plaintiff against the defendant for the sum of Kshs.3,539,504.80 2.That the same shall attract interest from the date of filing suit until payment in full. 3.That the plaintiff is also awarded costs of the suit to be borne by the defendant and which shall attract interest at court rates from the date hereof until payment in full. 4.That there is nothing in the pleadings to justify interest on the judgement sum at 13% per annum from the first default as prayed in the plaint." 10.It is apparent from order 4 of the ruling that the trial court itself found no basis in the pleadings for the 13% interest rate claimed by the respondent, even as it otherwise found wholly in the respondent's favour on liability and on the principal sum claimed. The Appeal 11.Aggrieved by that decision, the appellant filed a memorandum of appeal dated 18th April 2024, setting out five grounds, namely that the learned trial magistrate erred in law and in fact:(1)in holding that the WhatsApp messages were admissible evidence yet no certificate of production of electronic evidence pursuant to section 106B of the Evidence Act, Cap. 80, was attached and/or filed in court;(2)in finding that the WhatsApp messages amounted to an admission of debt;(3)in holding that there was an express admission of liability by the appellant when there was none;(4)in finding that the defence filed was scandalous, frivolous and/or vexatious; and(5)by shifting the burden of proof from the respondent to the appellant. 12.The Record of Appeal was filed on 16th July 2024 and a Supplementary Record of Appeal, containing the certified proceedings and the formal order extracted on 9th August 2024, was filed on 8th August 2024. The Appellant's Submissions 13.On grounds 1 and 2, the appellant submits that the WhatsApp messages relied upon by the trial court, appearing at page 385 of the Record of Appeal, do not meet the threshold for admissibility of electronic evidence. It points out that the image annexed as the purported screenshot does not show any communication between the appellant's representative and the respondent, but instead depicts seven different names, none of which is the appellant or any of its directors; and that the messages themselves appear to be typed prose rather than a genuine screenshot of a WhatsApp conversation, so that their authenticity is doubted. The appellant further submits that no certificate of production of electronic evidence was adduced pursuant to section 106B of the Evidence Act, nor was one filed as part of the respondent's list of documents, so that the messages ought to have been treated as inadmissible and could not properly found a finding of an admission of debt. 14.The appellant further submits that even if the communications were properly considered, the totality of what was communicated referred only to a sum of Kshs.2,543,044.00, and not the Kshs.3,539,504.80 claimed and awarded; accordingly, if the trial court was persuaded that there had been an admission, judgment ought to have been confined to the lesser, admitted sum, and not the full amount claimed. The appellant submits that this discrepancy alone raised a triable issue that ought to have precluded summary determination, and relies on Diamond Trust Bank Kenya Limited v Eric Barasa Nakitare [2019] eKLR, in turn applying Harit Sheth t/a Harit Sheth Advocates v Sharma Charania [2014] eKLR, for the proposition that summary judgment is available only where the matter is plain and obvious, and that where it is not, a litigant is not to be deprived of a full trial with discovery and oral evidence subject to cross-examination. 15.On ground 3, the appellant submits that there was in fact no contract between the parties, that had a contract existed the 13% interest claimed would have had a contractual basis (which the trial court itself found lacking), and that the absence of any evidence of a concluded contract was itself a triable issue that could not properly be resolved on affidavit. 16.On ground 4, the appellant submits that its statement of defence met the requirements of proper pleading and disclosed genuine triable issues, including whether any contract existed between the parties at all and whether there was any engagement between them regarding the sums claimed. It relies on D.T. Dobie & Company (Kenya) Limited v Muchina [1982] KLR 1, for the propositions that the jurisdiction to strike out pleadings is to be exercised only after the court has considered the facts, without embarking on the merits, which are reserved for the trial judge, and that a court should aim to sustain rather than terminate a suit, striking it out only where it is so weak as to be beyond redemption and incurable by amendment. It further relies on Vinodeep Investments Property Limited v Henkel Polymer Co. Ltd & 2 others [2004] eKLR, for the proposition that an application to strike out a defence will only very sparingly be entertained and ought not to be based on an assessment of the unlikely success of the defence, and on Lynette B. Oyier & others v Savings and Loan Kenya Limited, HCC No. 891 of 1996 (as applied in Yobesh Amoro v The Heritage Insurance [2007] eKLR), for the proposition that the function of the court on an application to strike out pleadings is confined to whether the pleadings comply with the rules of pleading, and not whether the claim or defence will ultimately succeed. 17.The appellant additionally submits, in its written submissions though not as a separately pleaded ground in the memorandum of appeal, that the respondent's plaint was not accompanied by an authority under seal as required by Order 4 Rule 1(4) of the Civil Procedure Rules, and that this omission rendered the proceedings before the trial court irregular, relying on Spire Bank Limited v Land Registrar & 2 others [2019] eKLR. 18.On ground 5, the appellant submits that the trial court impermissibly shifted the burden of proof to it, notwithstanding that it was the respondent who bore the burden of proving both the existence of the alleged contract and the quantum claimed. The respondent's submissions 19.The respondent submits, as a preliminary matter, that this being a first appeal, the appellate court is obliged to re-evaluate the evidence on record and reach its own conclusions, while being slow to disturb the trial court's findings absent a demonstrated failure to appreciate the weight of the evidence; it relies on Peters v Sunday Post Limited [1958] EA 424. 20.On ground 1, the respondent submits that section 106B of the Evidence Act, and the best evidence rule under sections 64 and 65 of that Act, do not strictly apply to documents annexed to an affidavit, which are treated in law as secondary evidence, particularly having regard to Order 19 of the Civil Procedure Rules, which permits proof by way of affidavit. It relies on Lwangu v Ndote (Environment & Land Case No. 79 of 2010) [2021] eKLR and on submissions made in Election Petition No. 11 of 2008, Ruben Nyanginya v Dickson Wathika, for the proposition that annexures to an affidavit need not be original documents. The respondent further submits that where a party disputes the authenticity of an annexure to an affidavit, the appropriate remedy is to seek leave, under Order 19 Rule 2(1) of the Civil Procedure Rules, to cross-examine the deponent, and that the appellant's failure to do so is fatal to its challenge; it relies on Republic v Barisa Wayu Matuguda [2011] eKLR and In re Estate of Benson Mwangi Kimanga (Deceased), Succession Cause No. 1445 of 2020 [2024] eKLR. 21.On grounds 2 and 3, the respondent submits that the appellant's email of 24th November 2021 to Denis Kerabu, asking him to settle a debt owed to the appellant so as to facilitate payment to the respondent, amounted to an unequivocal admission of indebtedness, and that this was reinforced by the appellant's subsequent part-payment by cheques numbered 00220 (Kshs.900,000) and 00222 (Kshs.600,000). It relies on Geoffrey Mukoto Oweki v Kenya Good Neighbours [2011] eKLR and Shamsher Kenya Limited v Body & Soul Limited [2005] eKLR for the proposition that part-payment of a debt by cheque constitutes an acknowledgment of indebtedness precluding a bona fide defence to that extent. 22.On ground 4, the respondent submits that the mere fact that the sum said to be admitted in the appellant's email (Kshs.2,543,044.00) differs from the sum claimed in the plaint (Kshs.3,539,504.80) does not, in itself, disclose a triable issue, given that the respondent's supporting affidavit and annexures went unchallenged and the appellant did not seek to cross-examine the deponent. 23.On ground 5, the respondent submits that it discharged the burden of proof placed upon it and that the trial magistrate properly evaluated the evidence and submissions of both parties before reaching his decision. 24.On the question of authority under seal, which the respondent addresses although it is not among the pleaded grounds of appeal, the respondent submits that the verifying affidavit was sworn by a director of the respondent who deposed to being duly authorised, that no evidence was tendered to show that he was not so authorised, and that this issue was in any event never raised before the trial court and cannot properly be raised for the first time on appeal. It relies on Makupa Transit Shade Limited & another v Kenya Ports Authority & another [2013] eKLR, Spire Bank Limited v Land Registrar & 2 others, and Frann Investment Limited v Ethics and Anti-Corruption Commission (2024), together with Article 159(2)(d) of the Constitution, for the proposition that Order 4 Rule 1(4) of the Civil Procedure Rules is not to be deployed as a technicality to defeat an otherwise properly instituted suit absent demonstrated prejudice. 25.On this basis, the respondent urges the court to dismiss the appeal with costs and to confirm the judgment of the trial court. The Duty of a First Appellate Court 26.It is well settled that on a first appeal such as this, this court is under a duty to re-consider and re-evaluate the evidence on the record, and to draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses, and giving allowance for that disadvantage. This is the classic formulation in Selle v Associated Motor Boat Company Limited [1968] EA 123, and it is complemented by the equally well-known statement in Peters v Sunday Post Limited [1958] EA 424, relied upon by the respondent, that while an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial court should stand, that jurisdiction is exercised with caution, and the appellate court will interfere where there is no evidence to support a particular conclusion, or where the trial court has failed to appreciate the weight or bearing of the evidence, or has plainly gone wrong. 27.This appeal, however, arises not from a judgment following a full trial but from a ruling on an interlocutory application to strike out a defence and enter summary judgment. The question for this court is accordingly not simply whether the trial court's assessment of competing oral evidence was against the weight of the evidence, but the anterior and narrower question whether the trial court was right to conclude that the appellant's defence disclosed no bona fide triable issue such that the matter could properly be disposed of without a trial at all. Analysis and Determination Whether the defence disclosed triable issues (Grounds 3, 4 and 5) 28.The jurisdiction to strike out a defence and enter summary judgment is one to be exercised with considerable caution and only in the plainest of cases. As Madan JA held in D.T. Dobie & Company (Kenya) Limited v Muchina [1982] KLR 1, the power to strike out pleadings must not be exercised in a manner that embarks on the merits of the case, since that function is reserved for the trial court, and a suit should be struck out only where it is so weak that it is beyond redemption and incurable by amendment; the court should aim to sustain rather than terminate a suit. This approach is consistent with the observation in Vinodeep Investments Property Limited v Henkel Polymer Co. Ltd & 2 others [2004] eKLR that an application to strike out a defence will only sparingly be entertained, and is not to be determined by an assessment of the unlikely success of the defence, and with the statement, applied in Yobesh Amoro v The Heritage Insurance [2007] eKLR, that the function of the court on such an application is confined to whether the pleading complies with the rules of pleading, not whether it will ultimately succeed at trial. 29.Similarly, on an application for summary judgment, the test is whether the matter is plain and obvious, such that there is no fairly reasonable probability of a genuine defence; where the matter is not plain and obvious, a litigant is not to be deprived of the right to have the case tried, with the benefit of discovery and oral evidence tested by cross-examination. This is the effect of the authority relied upon by the appellant, Diamond Trust Bank Kenya Limited v Eric Barasa Nakitare [2019] eKLR, applying Harit Sheth t/a Harit Sheth Advocates v Sharma Charania [2014] eKLR. 30.Applying these principles to the defence filed by the appellant, I am unable to agree with the trial court's characterisation of it as scandalous, frivolous or vexatious. At paragraphs 3 to 6 of the statement of defence, the appellant did not merely dispute the quantum of the respondent's claim; it denied outright the existence of any contractual relationship between the parties. A denial of that kind goes to the very root of the cause of action: if, as the appellant contends, there was no contract between the parties at all, there could be no debt arising from it, however persuasive the respondent's documentary annexures might otherwise appear on their face. Whether a contract existed, and if so on what terms, are matters properly resolved through the leading of evidence and, where necessary, cross-examination, and not through a summary process on affidavit. 31.This conclusion is reinforced by a further and, in my view, decisive difficulty with the respondent's own case as pleaded. The respondent's claim, and the trial court's award, were for Kshs.3,539,504.80. Yet, on the respondent's own submissions, the acknowledgment said to arise from the communications it relies upon extended only to a sum of Kshs.2,543,044.00. The respondent's written submissions before this court do not engage with, still less explain, this discrepancy; the point made on its behalf is confined to the proposition that a difference between the sum claimed and the sum said to be admitted does not, by itself, disclose a triable issue. I do not accept that proposition where, as here, the entirety of the plaintiff's claim to summary judgment rested on the assertion that the defendant had unequivocally admitted its indebtedness. An admission that on its face covers a materially lesser sum than that claimed cannot, without further explanation or evidence, found summary judgment for the whole of the larger sum. At the very least, the discrepancy called for evidence to establish how the balance between the two figures arose and whether it, too, was owed and admitted. That is a matter for trial, not for summary determination. 32.For these reasons, I find that the appellant's defence disclosed bona fide triable issues, both as to the existence of any contract between the parties and as to the quantum said to have been acknowledged, and that the trial court fell into error in striking it out and in entering summary judgment for the full sum claimed. Grounds 3, 4 and 5 of the appeal succeed to this extent. The WhatsApp messages and section 106B of the Evidence Act (Grounds 1 and 2) 33.Given the conclusion I have reached on the preceding issue, it is not strictly necessary, and in my view it would be premature, to make a final determination on the correctness of either party's position on the application of section 106B of the Evidence Act to documents annexed to an affidavit. The respondent's submissions raise a serious and properly arguable point, namely that annexures to an affidavit are treated in law as secondary evidence and stand on a different footing from documents produced at trial, and that a party disputing the authenticity of such an annexure has an avenue, under Order 19 Rule 2(1) of the Civil Procedure Rules, to seek leave to cross-examine the deponent. 34.Equally, the appellant's challenge to the content of the document at page 385 of the Record of Appeal — that it depicts seven names, none of which is shown to be the appellant or any of its directors, and that the messages appear to be typed prose rather than a genuine WhatsApp export — raises a live factual dispute as to whether the document is what the respondent says it is, and as to who, if anyone on the appellant's side, is shown to have made the statements relied upon. That is precisely the kind of dispute that calls for oral evidence and, if the appellant wishes to pursue it, cross-examination of the respondent's witness, rather than resolution on the papers. 35.I therefore make no final finding on grounds 1 and 2 beyond holding that the admissibility and evidential weight of the WhatsApp communications, and the question whether they amount to an admission binding on the appellant, and if so for what sum, are matters that should be determined at a full trial, where the maker of the document and its provenance can properly be tested. The question of authority under seal 36.The appellant's submissions raise, in addition to the five pleaded grounds, a further point concerning the absence of an authority under seal said to be required by Order 4 Rule 1(4) of the Civil Procedure Rules. This point does not feature among the five grounds set out in the memorandum of appeal dated 18th April 2024, and an appeal is ordinarily confined to the grounds properly pleaded in the memorandum of appeal. I do not consider it necessary or appropriate to determine this appeal on a ground that was not pleaded. 37.In any event, and for completeness, I would not have been persuaded by this point had it been properly raised. The verifying affidavit accompanying the plaint was sworn by a director of the respondent, who deposed to being duly authorised to swear it on the respondent's behalf; no evidence was placed before the trial court, nor before this court, to rebut that assertion. As the Court of Appeal has held in Spire Bank Limited v Land Registrar & 2 others, the purpose of Order 4 Rule 1(4) is to guard against unauthorised persons instituting proceedings on behalf of a corporation, and the provision is not to be deployed as a mere technicality to strike out an otherwise properly instituted suit where no evidence is adduced to show that the deponent lacked authority; a similar approach was taken in Makupa Transit Shade Limited & another v Kenya Ports Authority & another. This accords with the constitutional injunction, under Article 159(2)(d) of the Constitution, that justice be administered without undue regard to procedural technicalities where no prejudice is shown. I also accept the respondent's submission that this point was not raised before the trial court, and that considerable caution must attend any attempt to raise an entirely new point for the first time on appeal. I. Disposition 38.For the reasons set out above, I find that the appellant's statement of defence disclosed bona fide triable issues, in particular as to the existence of any contractual relationship between the parties and as to the quantum of any sum admitted or owing, which could not properly be resolved by way of summary judgment. The appeal accordingly succeeds. 39.The following orders shall issue:(a)The appeal is allowed.(b)The ruling and order of the Chief Magistrate's Court at Mombasa (Hon. J.B. Kalo, CM) delivered on 28th March 2024 in Mombasa CMCC No. E791 of 2022, striking out the appellant's statement of defence and entering judgment for the respondent in the sum of Kshs.3,539,504.80 together with interest and costs, are set aside in their entirety.(c)Mombasa CMCC No. E791 of 2022 is remitted to the Chief Magistrate's Court at Mombasa for hearing and determination on its merits.(d)The costs of this appeal shall be borne by the respondent.(e)The costs of the notice of motion dated 18th May 2023 before the trial court shall abide the outcome of the suit. SIGNED, DATED AND DELIVERED ON 17 JULY 2026NGAAH JAIRUSJUDGE