https://new.kenyalaw.org/akn/ke/judgment/scc/2026/225

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT OF KENYA AT UASIN GISHU COUNTY COURT NAME: ELDORET SMALL CLAIMS COURT** **CASE NUMBER: SCCCOMM/E779/2025** **PILOT PHARMACEUTICALS LIMITED VS GEOFREY TONA MOMANYI T/A SOCENO PHARMACY** **JUDGMENT** 1. Before this Court for determination is the Statement of Claim dated 24th March, 2025 in which the claimant seeks judgment against the respondent in the sum of Kshs.363,436.40/= together with costs and any other relief that the Court may deem fit to grant. The claimant's case, as pleaded, is that the respondent requested and was supplied with pharmaceutical drugs by the claimant but failed, neglected and/or declined to pay for the same, thereby leaving an outstanding balance of Kshs.363,436.40/=. 2. The respondent filed a Response to the Claim dated 7th July, 2026. He denied the claim and prayed that the same be dismissed with costs. The matter proceeded by way of viva voce evidence. Each party testified and neither party called any additional witness. 3. CW1, Peter Macharia Kimondo, the claimant's director, adopted his witness statement dated 24th March, 2025 as his evidence in chief. He also produced the documents contained in the claimant's bundle dated 24th March, 2025, namely the statement of account as C-Exhibit 1, negotiated payment agreement as C-Exhibit 2, payment plan dated 7th August, 2023 as C-Exhibit 3 and demand notice as C-Exhibit 4. It was his evidence that the respondent was the claimant's customer and that the claimant supplied pharmaceutical products to him. He stated that the statement of account contained invoice numbers, payment details and balances and showed that the amount due was Kshs.369,436/=. He further testified that the parties attempted to negotiate payment and that the respondent agreed to pay Kshs.30,000/= starting in December but subsequently requested more time to make payments by the 10th day of every month. According to the witness, the respondent failed to honour the payment arrangement, prompting the claimant to make further demands for payment. 4. On cross-examination, the witness confirmed that the claimant had not attached the invoices and delivery notes relating to the alleged supplies. He maintained that the documents had been supplied to his advocate. He further confirmed that no document had been produced to demonstrate that the respondent was a director of Soceno Chemist. The witness further stated that what had been produced included an invoice and delivery note, although the said documents were not part of the documents identified as the basis of the claim. He could not confirm the exact location of the respondent's shop but stated that he had physically been to Meru. He testified that Joshua Koome was the claimant's sales person in Meru but acknowledged that he had not been called as a witness and that no document had been produced to establish that he was an employee of the claimant. 5. The witness confirmed that the statement of account had been prepared by the claimant. He stated that the claimant gave the respondent the statement of account and that the respondent subsequently provided a payment plan. He further confirmed that the claimant had not provided independent proof identifying the bank account or payment channel through which the payments appearing in the statement had been received. The witness also confirmed that no documentary evidence had been filed demonstrating the return of drugs by the respondent, although he stated that any returns would be captured in the claimant's system. He testified that Joshua was their employee and signed documents on behalf of the company. 6. In re-examination, the witness maintained that the statement of account contained the invoice dates, invoice numbers, credit notes, amounts paid and the balance due. He stated that the respondent had not disputed the entries in the statement. He further clarified that the claimant had sued the respondent trading as Soceno and not Soceno itself. The witness stated that the claimant's statement of claim indicated KCB as one of the payment channels and explained that when a customer makes payment through the claimant's till, the payment reflects on the claimant's end and not necessarily on the customer's bank account. He maintained that Joshua was an employee of the claimant and that there was no evidence that the client's details had been fraudulently obtained. He further stated that Geoffrey, who was the claimant's sales person, had not disputed the signature on the documents. 7. RW1, Geoffrey Momanyi Tona, adopted his witness statement dated 3rd July, 2026 as his evidence in chief. He produced his KCB bank statement as R-Exhibit 1. On cross-examination, the respondent maintained his evidence that he did not trade as Soceno. He was referred to the payment plan dated 4th September, 2023 and denied the signature, identification number and telephone number appearing thereon. He stated that the amount appearing in the document was an extortion against him, although he had not reported the matter to the police. The respondent maintained that he was a stranger to the claim and that he had produced his KCB bank statement to demonstrate that he had never made any payment to the claimant. He stated that his identification number was 2950957 and denied having entered into any agreement with the claimant. In re-examination, the respondent reiterated that he had produced his bank statement to demonstrate that he had never made any payment to the claimant. He maintained that he had no association with Soceno and was not the claimant's customer. According to him, if there was a transaction involving Soceno, then it was with Soceno and not with him. Issues for determination 1. Having considered the pleadings, the evidence on record and the submissions of the parties, I consider the following issue to arise for determination: 2. Whether the claimant has proved its claim against the respondent on a balance of probabilities. 3. The claimant bears the legal burden of proving the facts upon which its claim is founded. Section 107(1) of the Evidence Act, Cap. 80 provides that whoever desires a 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. Section 108 provides that the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side, while section 109 places the burden of proving a particular fact upon the person who wishes the Court to believe in its existence. The applicable standard is proof on a balance of probabilities. In **Mumbi M'Nabea v David M. Wachira [2016] eKLR**, the Court of Appeal explained that the standard means that the Court must assess the evidence and determine which version is more probable than the other. The burden does not shift merely because the defendant has denied the claim. 4. The claimant's case is essentially a claim for payment for pharmaceutical products allegedly supplied to the respondent. It was therefore incumbent upon the claimant to establish, at the very least, that the respondent was its customer, that the respondent requested or authorised the supply, that the pharmaceutical products were delivered to the respondent or to an authorised agent, the price thereof and that the amount claimed remained outstanding. I have carefully considered the statement of account produced as C-Exhibit 1. The statement contains invoice dates, reference numbers, payment entries and balances and shows an alleged outstanding amount of Kshs.369,435.40/=. The subsequent statement dated 16th March, 2025 reflects the alleged outstanding amount as Kshs.363,436.40/=. However, the claimant did not produce the invoices and delivery notes upon which the statement of account was based. The claimant's witness acknowledged that the invoices and delivery notes had not been filed. Although he stated that the documents had been given to the claimant's advocate, the Court can only determine the claim on the evidence actually placed before it. The importance of the underlying transactional documents cannot be understated. In **Securex Agencies (K) Limited v Resort Kenya Limited & another [2023] KEHC 21751 (KLR),** an appeal arising from a Small Claims Court matter, the High Court upheld the dismissal of a claim where the claimant had failed to produce delivery notes supporting invoices. The Court held that where the debt was not admitted, production of invoices without delivery notes was insufficient to prove the claim. 5. Similarly, in **Kiautha & another t/a Briaton Bookshop v Longhorn Publishers PLC (Civil Appeal E177 of 2023) [2024] KEHC 15846 (KLR),** the High Court reiterated the importance of invoices together with corresponding dispatch slips or delivery notes in proving claims for supplied goods, relying on the decision in Securex Agencies cited above. In the present case, the claimant's failure to produce the invoices and delivery notes is particularly material because the respondent does not merely dispute the amount claimed. He disputes being the claimant's customer altogether. The Court therefore requires evidence linking the alleged supplies to the respondent personally. 6. The claimant's witness testified that the respondent traded as Soceno. However, on cross-examination he confirmed that there was no document before the Court demonstrating that the respondent was a director, proprietor or otherwise authorised representative of Soceno Chemist. The claimant did not produce a certificate of business registration, company records, licence, partnership documents or other evidence linking the respondent to the entity. This creates a fundamental evidential gap. The claimant sued Geoffrey Momanyi Tona, yet some of the documents relied upon refer to persons bearing different names, Zooday Geoffrey. The Court cannot simply infer that the respondent is liable for the obligations of an entity merely because the claimant's witness says so, particularly where that assertion is expressly denied. 7. The claimant placed considerable reliance upon the negotiated payment agreement dated 4th September, 2023 and the payment plan dated 7th August, 2023. The claimant's position is that these documents demonstrate an acknowledgment of the debt and an agreement by the respondent to pay it by instalments. The respondent, however, expressly denied signing the documents. He disputed the signature, identification number and telephone number appearing on the payment plan. He further denied having entered into any payment agreement with the claimant. Once the respondent specifically denied the signature and execution of the documents, the evidential burden lay upon the claimant to establish that the documents were in fact executed by the respondent or by a person duly authorised to act on his behalf. In the present case, no handwriting expert was called. Neither was the person who allegedly witnessed the respondent execute the disputed document called to identify the signature. More importantly, no witness was called to explain the circumstances in which the payment plan was prepared and signed or to reconcile the respondent's denial with the particulars appearing on the document. The claimant's evidence therefore falls short of establishing that the respondent executed the payment plan. 8. There is a further and more serious difficulty with C-Exhibit 3. The payment plan does not present a consistent identity of the person said to have entered into the arrangement. It refers to different names, including Geoffrey Momanyi of soceno chemist of Tel No. 0719396915, ID No 29500958 and Zodday Geoffrey of Tel No. 0715414351 and ID 29500958, while other portions contain different telephone and identification particulars. The respondent before the Court is Geoffrey Momanyi Tona. He denied that the identification number and telephone number appearing on the document belonged to him and denied executing the document. In my view, the discrepancy in the names cannot be dismissed as a mere typographical or clerical error. The document is relied upon as the very instrument by which the claimant says the respondent acknowledged the debt and agreed to pay it. Identity is therefore central to its evidentiary value. If the document bears the name of one person in one portion and another name in another portion, while the alleged debtor denies both the signature and the particulars appearing on the document, the claimant must provide an explanation and evidence connecting the document to the respondent. No such explanation was satisfactorily given. The effect is that the Court is left with uncertainty as to who actually executed the payment plan. That uncertainty is material because the document is relied upon not merely to prove the existence of a debt but to establish an acknowledgment of liability by this particular respondent. The Court cannot enter judgment against a person on the basis of a document whose identity particulars are materially inconsistent and whose execution has been expressly denied without satisfactory proof connecting that person to the document. 9. There is also the question of the execution and authentication of the documents produced by the claimant, which is itself a company. The claimant's witness testified that Joshua was an employee of the company and that he signed documents on behalf of the company. Section 37(2) of the Companies Act, 2015 provides that a document is validly executed by a company if it is signed on behalf of the company by two authorised signatories or by a director of the company in the presence of a witness who attests the signature. Section 40 further permits a company, in writing, to authorise a person to execute deeds or other documents on its behalf, while section 41 provides that a document or proceedings requiring authentication by a company is sufficiently authenticated by the signature of a person authorised by the company to act on its behalf. I must, however, make it clear that the issue is not that every document produced by a company must necessarily bear the signatures of two directors or the company's common seal. Section 37 provides alternative modes of execution, and a common seal is not mandatory. The question in the present case is whether the persons who executed or authenticated the particular documents relied upon by the claimant were authorised to do so and, more importantly, whether those documents bind the respondent. In **Busienei v Lizano Limited [2025] KEHC 4483 (KLR),** the High Court considered section 37 of the Companies Act and emphasised the requirement for execution by authorised signatories or by a director in the presence of a witness. 10. In the present case, the claimant's witness merely stated that Joshua was an employee of the claimant and had signed documents on behalf of the company. No board resolution, written authority, power of attorney or other evidence of authority was produced. While that omission may not, standing alone, render every document produced by the claimant inadmissible, it becomes material where the claimant seeks to rely upon a disputed document as a contractual acknowledgment of liability. The claimant therefore cannot overcome the respondent's denial merely by demonstrating that Joshua was its employee. The issue is whether the respondent executed or authorised the document. On that question, the claimant's evidence is inadequate. 11. The claimant also relies heavily on its statement of account. I accept that a statement of account maintained in the ordinary course of business may constitute relevant evidence. Section 37 of the Evidence Act permits entries in books of account regularly kept in the course of business to be relevant evidence. However, such entries are not conclusive proof that the person against whom they are produced is indebted. A statement of account is essentially a record maintained by the party claiming payment and its evidential weight must be assessed together with the underlying transactions. The respondent produced his KCB bank statement covering the period stated in his evidence. He relied upon it to demonstrate that he had not made payments to the claimant. I do not consider the absence of a payment to the claimant in the respondent's bank statement, standing alone, to conclusively establish that no transaction ever took place. A payment could theoretically have been made through cash, mobile money, a till or another channel. However, the significance of the bank statement lies in the fact that it is consistent with the respondent's categorical denial of having transacted with the claimant. The claimant did not produce independent transactional evidence to counter that denial. The claimant's witness could not identify a payment by the respondent, did not produce the relevant till or bank records and did not produce the underlying invoices and delivery notes. 12. I have considered the evidence as a whole. The claimant's case has several unresolved evidentiary gaps. First, the invoices and delivery notes allegedly evidencing the supply of pharmaceutical products were not produced. Second, there is no satisfactory documentary evidence connecting the respondent with Soceno Chemist. Third, the alleged payment agreements are disputed. Fourth, the payment plan contains materially inconsistent names and identification particulars. Fifth, the person or persons who allegedly dealt with the respondent and could have clarified these matters were not called as witnesses. The Court is mindful that proceedings before the Small Claims Court are intended to be expeditious and accessible and that the Court is not bound by strict rules of evidence in the same manner as an ordinary civil court. Nevertheless, the relaxation of evidentiary rules does not relieve a claimant of the fundamental obligation to prove its claim on a balance of probabilities. The Court is therefore unable to find, on the evidence before it, that the respondent requested and received the pharmaceutical products alleged by the claimant or that he undertook to pay the sum claimed. 13. The claimant's evidence may raise a suspicion that there was a commercial transaction involving pharmaceutical products and Soceno Chemist. However, suspicion, however strong, cannot substitute proof of liability against the particular respondent before the Court. The claimant had the opportunity to produce the primary documents evidencing the transactions and to call the sales person or other persons directly involved in the alleged dealings. It did not do so. Where the respondent expressly denied the transaction and execution of the documents, those omissions became material. 14. This Court is therefore unable to find that the claimant has established its case on a balance of probabilities. Consequently, the claimant's Statement of Claim dated 24th March, 2025 is hereby dismissed with costs of ksh 45,000/- and interest. Judgement dated, signed and delivered electronically in Eldoret this 21st day of August 2026 M.E Aligula- RM In the presence of C/A: Mr Lepatoiye