https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10194

Waruraya v Kiarie (Civil Appeal E005 of 2025) [2026] KEHC 10194 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] KEHC 10194 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E005 of 2025 MW Mutuku, J July 1, 2026 Between Patrick Ngure Waruraya Appellant and Eliud Mathu Kiarie Respondent (Being an appeal from the judgment and decree of Hon.P.Muholi delivered on 24th April 2025 in Githunguri Principal Magistrate’s Court Civil Case No. 63 of 2012) Judgment 1.Before this Court is the Memorandum of Appeal dated 22nd May 2025 by which the Appellants sought the following orders:-(a)That the judgment by the honourable court dated 24th April be set aside, reversed, reviewed and or varied.(b)That the suit by the respondent in the lower court be dismissed with costs.(c)That the costs of this appeal be granted to the appellant. 2.The appeal was canvassed by way of written submissions, which I have considered. Background 3.This appeal arises from a contract for supply of firewood. It is alleged that on 11th November 2011, the respondent upon the request by the appellant supplied the appellant with firewood worth Ksh 120,000. That the appellant undertook to pay the said Ksh 120,000 by 17th November 2011 but failed/refused to pay the said sum. The respondent sued the appellant claiming Ksh 120,000 for the firewood supplied, together with costs of the suit. 4.The trial court after hearing of the case found in favour of the respondent and awarded a sum of Ksh 120,000 with interest from the date of judgment till payment in full. 5.The appellant being dissatisfied with the whole of the judgment and decree of the learned magistrate has appealed the whole judgment on the grounds that:-i)That the learned magistrate erred in fact and law in making a finding that the Appellant owed the respondent a sum of Kshs 120,000 in total disregard of the evidence adduced at the hearing of the caseii).That the learned magistrate erred in law and fact by failing to consider and appreciate the admission by the respondent in cross examination that indeed he had received a cheque of Ksh 76,000 from the appellant.iii).That the learned magistrate erred in fact and law by failing to consider and appreciate the fact that a further cheque of Ksh 15,000 was received by the respondent through PW 2.iv)That the learned magistrate erred in fact and law by failing to consider the appellants documents in support of the defence pursuant to the Appellants list of documents dated 18th March 2014.v)That the learned magistrate erred in law and fact by failing to consider the glaring inconsistencies in the respondents evidence and in particular at the cross examination stage together with that of the Respondents witnesses.vi).That the learned magistrate erred in fact and law by failing to make a finding that the appellant had settled the respondents claim safe for cheque for Ksh 29,000 whose payment was stopped due to the failure by the respondent to supply the whole consignment of wood as had been agreed.vii).That the learned magistrate erred in fact and law in failing to evaluate and appreciate the pleadings and the whole evidence on arriving at the decision.viii).That the learned magistrate erred in fact and law by delivering a judgment in favour of the respondent based on evidence which was not only insufficient but also inconsistent and contradictory. Analysis and Determination 6.I have considered the appeal before this court, the record of the proceedings before the Lower Court as well as the written submissions filed by both parties. 7.This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557(KLR) in which the Court of Appeal stated as follows:-“This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is 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 allowances in this respect. see Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. v Brown [1970] E.A.L .As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:-“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide……” 8.The respondent in his evidence told the court that he agreed to sell firewood valued at Ksh 120,000 to the appellant. Since the appellant did not have money, the respondent allowed him to carry the firewood, on the agreement that he would pay for the same on 17th November 2011. The respondent produced an agreement dated 11th November 2011. The respondent went on to state that the appellant never paid for the firewood at all, and that the cheques issued to him by the appellant were for the purchase of fresh firewood which he was buying through another person. 9.In cross examination, the respondent admitted to having received the cheque for Ksh 76,000, but explained that the person who took the cheque to purchase fresh firewood, and that the person who presented the cheque had carried firewood with him. 10.In cross examination, the respondent stated that when he looked at the cheque of Ksh 76,000, he realized that it was in the name of the appellant. Further that respondent stated that the person who collected the firewood was accompanied by his worker, and that his worker told him that the wood was delivered to the appellant. 11.Benson Gatere Kiarie is, who is a brother to the respondent informed the court that he is a transporter. That he was called by the appellant, who send him to his brother with a cheque of Ksh 15,000 to purchase firewood. That he went to the appellant, and loaded firewood worth Ksh 15,000 on his lorry and delivered it to the appellants’ home. He produced a copy of the cheque for Ksh 15,000. 12.The appellant told the court that the respondent agreed to sell firewood to him worth Ksh 120,000. They entered into a sale agreement. The respondent allowed the appellant to carry the firewood on credit, but he was not able to pay on the agreed date as the factory, where he delivered the firewood did not pay him in good time. 13.He was called to the police station on allegations reported to the police by the respondent. That on 14th December 2011, he went to the police station with a cheque of Ksh 76,000 which was handed over to the respondent, and on the promise that the appellant would pay the balance on 20th December 2011. Later, he issued a cheque of Ksh 15,000 and a postdated cheque of Ksh 29,000 which the respondent accepted. The appellant threatened to stop the postdated cheque of Ksh 29,000 since the respondent had withheld 12 stalks of firewood. The appellant stopped the cheque for Ksh 29,000, but later he received a demand letter for Ksh 120,000, yet he had paid the debt, safe for the Ksh 29,000. He maintained that pw2 was not truthful, as he never gave a cheque to him to take to the respondent. 14.In cross examination, the appellant maintained that he had paid a sum of Ksh 76,000 and a further amount of Ksh 15,000 way of cheque. That the 3rd cheque of Ksh 29,000 was not paid because the account had no funds. 15.Joseph Njihia Muroki told the court that he was aware that the two parties in this case had a contract for supply of wood. He stated that he only carried 36 stalks of wood since Patrick did not have the 48 stalks. He could not tell if the 12 stalks were ever supplied, and he further did not know anything about how payments were made. Analysis and determination. 16.It is not disputed that there was a contract between the appellant and the respondent for the supply of firewood worth Ksh 120,000. This evidenced by the agreement between the two parties date 11th November 2011. The agreement is signed by the two parties and was witnessed by the Assistant Chief Ikinu Su Location. 17.It is also not in dispute that the appellant wrote three cheques, for funds to be drawn from his account held at Standard Chartered Bank, Thika Branch. The cheques were drawn as follows:-i)16th December 2011 Ksh 76,000- this cheque was paid.ii)4th January 2012 Ksh 15,000 – this cheque was also paid.iii)31st January 2012- Cheque not paid (referred to drawer). 18.The appellant presented evidence in support of the drawee, and annexed copies of the physical cheques to prove that the same were drawn and paid in favour of the respondent. On the other hand, the respondent does not dispute that the two cheques were paid to his account. 19.The issue for determination is whether the respondent proved his claim against the appellant for Ksh 120,000. 20.Having carefully considered the evidence of the respondent, and more particularly in cross examination, the respondent contradicted his case when he stated that the person who had gone to collect firewood gave him a cheque of Ksh 76,000. That his worker accompanied the transporter and confirmed that the firewood was delivered at the premises of the appellant. 21.This piece of evidence clearly contradicts his assertions that the Ksh 76,000 was payment for a fresh transaction for sale of firewood. He did not produce any evidence to support that there was a fresh and different transaction between him and the appellant. All the evidence on record point irresistibly to the fact that the Ksh 76,000 was paid an account of the contract in question between the appellant and the respondent. 22.Though PW 2 states that the Ksh 15,000 was for top up of firewood to be sold to the appellant by his brother, who is the respondent, there is no evidence to support these allegations, bearing in mind that pw 1 never brought up this issue when giving evidence in chief. 23.I find that the appellant has proved on a balance probabilities that he paid a sum of Ksh 76,000 and a further sum of 15,000 to the respondent. In cross examination, he demonstrated that 76,000, Ksh 15,000 and 29,000 sum up to Ksh 120,000 owed to the plaintiff. 25.I agree that the trial magistrate misapprehended the facts and law in failing to take into account the appellant’s documents, which bear evidence of payment made by the appellant to the respondents account. 26.In the upshot, the appeal partially succeeds. 27.I find that the appellant is only indebted to the respondent to the tune of Ksh 29,000. Consequently, I set aside the judgment of the lower court, and enter judgement in favour of the respondent for Ksh 29,000 together with interest form the date of filing this suit. Costs. 28.In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:-“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied]. 29.The success was mixed, therefore, each party shall bear their own costs in the appeal in line with 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.The Appellant to bear costs of the suit in the court below. 30.Thirty days stay of execution.Right of appeal. DELIVERED, DATED AND SIGNED ON THIS 1st DAY JULY, 2026.JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.MARTHA MUTUKU.JUDGE.In the presence of:-No appearance for the Appellant.Miss Thuo for the respondent.Mr. Kibet- Court Assistant.