Njuguna v Mastic Paints Limited (Small Claims Appeal E098 of 2026) [2026] KEHC 11707 (KLR) (Civ) (28 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **HCCSCA NO. E098 OF 2026** **ROBERT MACHARIA NJUGUNA…………….…………..…. APPELLANT** -VERSUS- **MASTIC PAINTS LIMITED…………………..…………….RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. This appeal arises from the judgment of the Small Claims Court delivered on 1ST November 2024 in Milimani SCCCOMM No.E2893 OF 2024 wherein the learned Adjudicator entered judgment in favour of the Respondent (then the Claimant) for Kshs. 406,500 together with costs of Kshs 42,000/= and interest. 2. The dispute before the trial court concerned the supply and application of paint to the Appellant’s premises called “Njugunas” situated at Waiyaki way opposite ABC place within Nairobi County. 3. The evidence before the trial court was that by a document described ***as painting materials quote for ABC place, Mr. Macharia NJUGUNA’S*** dated 18th September 2023, the Respondent agreed to supply construction materials to the Appellant at an agreed contract price of Kshs.858,500/=. 4. It was common ground that the Appellant paid Kshs.850,000/= leaving a balance of Kshs.8,500/= which the Appellant maintained was intentionally withheld because some contractual works had not been completed. 5. The Respondent's further case was that after the initial agreement had commenced, the Appellant requested additional construction materials on **14th October 2023** and **6th February 2024**, giving rise to a separate indebtedness of Kshs.398,000/= over and above the original contractual sum. 6. The Appellant denied ever placing fresh orders. His position was that all materials supplied formed part of the original contract represented by the quotation dated 18th September 2023 and therefore no additional payment became due beyond the agreed contract price. 7. After hearing both parties, the learned Adjudicator accepted the Respondent's version of events and entered judgment for Kshs.406,500/=. 8. Aggrieved by that decision, the Appellant lodged the present appeal. **Grounds of Appeal** 1. Although couched in several grounds, the memorandum of appeal essentially faults the trial court for— 2. ***finding that there existed a valid and enforceable contract for additional works in the absence of any variation to the original contract.*** 3. ***Erred in law and fact in entering judgment in favor of respondent notwithstanding their failure to discharge the legal burden as required.*** 4. ***failing to adequately consider and evaluate the evidence and scope of work carried under the invoices dated 14th October 2023 and 6th February 2024 and not that it was included in the original contract;*** 5. ***shifting the burden of proof to the Appellant;*** 6. ***failing to properly evaluate the documentary evidence leading to an erroneous decision.*** 7. ***Misapplying established principles of commercial, contractual and evidentiary law thereby arriving at a conclusion unsupported by evidence*** 8. ***entering judgment against the weight of evidence.*** **Duty of this Court** 1. This being a first appeal, this Court is obligated to reconsider, evaluate and analyse the entire evidence afresh before arriving at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 2. The principles governing a first appeal are well settled. 3. In ***Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123***, Sir Clement De Lestang V-P stated: ***"An appeal to this Court from a trial by the High Court is by way of retrial and the 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."*** 1. Although the decision arose from an appeal from the High Court, the Court of Appeal has consistently held that the same principles equally guide the High Court when hearing a first appeal from subordinate courts. 2. Similarly, in ***Peters v Sunday Post Ltd [1958] EA 424***, the predecessor of the Court of Appeal for Eastern Africa held that while an appellate court has jurisdiction to review the evidence, it should exercise caution before differing from findings based on the credibility of witnesses whom the trial court had the advantage of seeing and hearing. 3. Likewise, in ***Kenya Ports Authority v Kuston (Kenya) Limited (2009) 2 EA 212 (CAK)****,* the Court of Appeal emphasized that a first appellate court must subject the whole of the evidence to fresh and exhaustive scrutiny before drawing its own conclusions. 4. The Court will therefore determine whether the learned Adjudicator correctly appreciated both the facts and the applicable law before arriving at the impugned decision. **Issues for Determination** 1. Having reviewed the pleadings, proceedings, judgment and the rival submissions, the issues arising for determination are: 2. Whether the quotation dated 18th September 2023 constituted the only agreement between the parties. 3. ***Whether the Respondent proved that subsequent orders dated 14th October 2023 and 6th February 2024 constituted separate contracts.*** 4. ***Whether the Respondent discharged the burden of proof required under the law.*** 5. ***Whether the trial court properly evaluated the evidence.*** 6. ***Whether the judgment ought to be upheld or set aside.*** Those are the issues to which the Court now turns. **ANALYSIS OF THE EVIDENCE AND THE LAW** 1. The central question in this appeal is whether the Respondent discharged the legal burden of proving that the supplies allegedly made on **14th October 2023** and **6th February 2024** constituted transactions separate and distinct from the original agreement evidenced by the quotation dated **18th September 2023**, thereby entitling it to recover a further sum of **Kshs. 398,000/=**. 2. The answer to that question lies in the principles governing the burden of proof, formation and variation of contracts, and the evaluation of documentary evidence. **(a) Whether the Respondent proved the existence of a second or subsequent contract** 1. The foundation of the parties' relationship was the quotation dated **18th September 2023**, under which the Respondent agreed to supply construction materials at a contract price of **Kshs. 858,500/=**. 2. It was not disputed that the Appellant paid **Kshs. 850,000/=**, leaving a balance of **Kshs. 8,500/=**. The Appellant maintained that this balance was withheld because some contractual obligations had not been fully performed. 3. The Respondent's case was that after execution of the original contract, the Appellant placed fresh orders for additional materials on **14th October 2023** and **6th February 2024**, giving rise to an additional indebtedness of **Kshs. 398,000/=**. 4. The burden therefore rested upon the Respondent to prove, by credible evidence, that: * ***Fresh orders were indeed placed;*** * ***Those orders were outside the scope of the original agreement;*** * ***The materials were supplied pursuant to those fresh orders;*** * ***The appellant accepted delivery of those additional materials; and*** * ***Payment became due but remained outstanding.*** 1. A party alleging a subsequent contract or a variation of an existing contract bears the burden of proving the same. A court cannot infer a new contractual obligation merely because additional goods were supplied unless the evidence demonstrates consensus between the parties. 2. The Court of Appeal in ***National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR*** succinctly stated: ***"A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved."*** 1. The significance of that holding in the present appeal is that the Court must first determine what the parties agreed. If the original quotation governed all the materials supplied, then the Court cannot create an additional contractual obligation absent cogent evidence of a separate agreement or agreed variation. 2. Similarly, in ***Savings & Loan (Kenya) Ltd v Mayfair Holdings Ltd [2012] eKLR***, the Court of Appeal reiterated that courts must give effect to the bargain freely entered into by parties and cannot impose obligations not proved to have been agreed. 3. Thus, if the Respondent alleged that the parties departed from the original quotation, the Respondent had to prove that departure by evidence. **(b) Burden of Proof** 1. The applicable law is found in sections 107, 108 and 109 of the Evidence Act. Section 107(1) provides: ***"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."*** 1. Section 108 further provides that the burden lies upon the person who would fail if no evidence were adduced. 2. Section 109 places the burden upon the person having special knowledge of a particular fact. 3. The Respondent therefore carried both the legal and evidential burden of proving the alleged additional supplies and the indebtedness arising therefrom. 4. The Court of Appeal authoritatively explained the nature of this burden in ***Kirugi & Another v Kabiya & 3 Others [1987] KLR 347***, where it held: ***"The burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard by way of formal proof."*** 1. That principle is particularly relevant because the Respondent could not succeed merely because the Appellant disputed the claim. The Respondent had to affirmatively establish the existence of the alleged debt. 2. The Court further observed that the standard in civil cases remains proof on a balance of probabilities, meaning that the evidence must demonstrate that the existence of the asserted facts is more probable than not. 3. Accordingly, the Respondent was required to prove, through documentary or other credible evidence, that the additional sum claimed arose from separate transactions and was not merely part of the original contractual obligations. **(c) Whether the documentary evidence proved the additional supplies** 1. Commercial disputes involving the supply of goods are ordinarily proved by contemporaneous documents such as: * ***Purchase orders;*** * ***Local purchase orders (lpos);*** * ***Quotations;*** * ***Delivery notes;*** * ***Invoices;*** * ***Goods received notes;*** * ***Acknowledgements of receipt;*** * ***Statements of account; and*** * ***Correspondence confirming orders or acceptance.*** 1. Where a party asserts that additional goods were supplied beyond an original contract, such documents become critical in demonstrating that the supplies were separately ordered, delivered, accepted and invoiced. 2. The Court of Appeal emphasized the evidential value of contemporaneous commercial records in **Kenya Commercial Bank Limited v Osebe [1982] KLR 296**., observing that documentary evidence generated in the ordinary course of business is often the most reliable evidence of commercial transactions. 3. In the present appeal, the Respondent was required to produce documentary evidence linking the alleged additional supplies to specific fresh requests by the Appellant. The court would ordinarily expect to see purchase orders, signed delivery notes, invoices expressly referring to the subsequent orders, or correspondence acknowledging that the supplies fell outside the original quotation. 4. If the only documentary evidence before the trial court was the quotation dated **18th September 2023**, and there was no clear documentary trail demonstrating fresh orders and deliveries independent of that quotation, the question arises whether the trial court was entitled to conclude that a second and third contracts had been proved. 5. The existence of invoices alone, without evidence that they were founded upon a separate request or accepted by the Appellant as creating a new obligation, may not suffice. An invoice is ordinarily prepared unilaterally by the supplier; while it is evidence that a claim is asserted, it is not conclusive proof that the debt is owed. The weight to be attached to invoices depends on the surrounding evidence, including proof of the underlying order, delivery and acceptance. **(d) Evaluation of the trial court's findings** 1. An appellate court will not interfere with findings of fact merely because it would have reached a different conclusion. Intervention is warranted where the trial court misapprehended the evidence, failed to consider relevant matters, considered irrelevant matters, or reached a conclusion unsupported by the evidence. 2. The Court of Appeal stated the applicable principle in ***Jabane v Olenja [1986] KLR 661****,* holding that an appellate court is entitled to interfere where the trial court acted on no evidence, misapprehended the evidence, or demonstrably acted on wrong principles in reaching its findings. 3. Applying those principles, this Court must carefully examine whether the learned Adjudicator properly analysed the documentary evidence and correctly concluded that the Respondent had proved the existence of separate contracts giving rise to the claimed sum of **Kshs. 398,000/=** over and above the balance **of Kshs 8,500/=**, or whether the court impermissibly inferred such contracts without sufficient evidential foundation. **RE-EVALUATION OF THE EVIDENCE** 1. Having set out the applicable principles of law, this Court must now subject the entire evidence to a fresh and exhaustive evaluation to determine whether the Respondent proved, on a balance of probabilities, that the Appellant was indebted to it in the sum of **Kshs. 406,500/=**. **(a) The Original Agreement** 1. The starting point is the document described as the ***as painting materials quote for ABC place, Mr. Macharia NJUGUNA’S*** dated **18th September 2023**. 2. The quotation itemised the materials to be supplied at an agreed consideration of **Kshs. 858,500/=**. Although described as a quotation, the conduct of the parties demonstrates that it crystallised into a binding contract upon acceptance by the Appellant and subsequent performance by the Respondent. The Appellant paid **Kshs. 850,000/=**, leaving a balance of **Kshs. 8,550/=**, which was admittedly withheld on account of alleged incomplete performance. The existence of this contract is therefore beyond dispute. The dispute concerns whether the Respondent subsequently supplied additional materials outside the scope of that agreement. **(b) Whether the Respondent proved subsequent orders** 1. The Respondent pleaded that the Appellant made further requests for materials on **14th October 2023** and **6th February 2024**, thereby creating separate contractual obligations. 2. That allegation was specifically denied by the Appellant, whose case was that all materials supplied were contemplated under the original quotation and that no fresh agreement was entered into. Once that issue was joined, the Respondent bore the burden of proving the alleged subsequent contracts by cogent evidence. 3. Upon re-evaluating the record, the Court notes that the evidence relied upon by the Respondent principally consisted of invoices and an asserted running account. The critical question is whether those documents, either singly or collectively, established that the Appellant placed fresh orders distinct from the original contract. 4. Invoices are generated by the supplier. While they may demonstrate that a supplier claims payment, they do not, without more, prove that the purchaser requested the goods or accepted liability for them. Their evidential value is considerably strengthened where they are supported by purchase orders, delivery notes signed by the recipient, goods received notes, correspondence acknowledging receipt, or admissions by the purchaser. If the record lacks such supporting documents, the evidential chain remains incomplete. 5. The Court of Appeal addressed the evidential significance of documentary proof in commercial transactions in **Kenya Commercial Bank Limited v Osebe [1982] KLR 296**., observing that liability in commercial claims must be established through reliable documentary evidence demonstrating the underlying transaction. The decision underscores that documents generated in the ordinary course of business must be read together and not in isolation when determining whether a contractual obligation has been proved. 6. Similarly, in **National Bank of Kenya Limited v Pipeplastic Samkolit (K) Limited & another** ***[2001] eKLR,*** the Court of Appeal reiterated that a trial court must evaluate the totality of the documentary evidence before drawing conclusions on liability and should not elevate isolated documents above the entire evidentiary record. 7. In the present appeal, the Court must therefore determine whether the documents relied upon by the Respondent demonstrated: * ***A fresh request by the Appellant;*** * ***Delivery of additional materials outside the original quotation;*** * ***Acceptance of those materials by the Appellant; and*** * ***Agreement that payment would be made separately from the original contract***. 1. Without satisfactory proof of those elements, the Court would be left to speculate that additional supplies automatically created a separate contractual obligation, contrary to settled principles of contract law. **(c) Whether the trial court shifted the burden of proof** 1. The learned Adjudicator accepted the Respondent's assertion that additional materials were supplied and appears to have concluded that the Appellant failed to rebut that evidence. With respect, that approach risks reversing the statutory burden of proof. 2. The Respondent was required to prove its claim before any evidential burden could shift to the Appellant. The Appellant was under no obligation to disprove a claim that had not first been established by credible evidence. 3. As the Court of Appeal held in ***Karugi & Another v Kabiya & 3 Others [1987] KLR 347***, the burden of proof remains throughout on the claimant, and that burden does not shift merely because the defendant denies liability. 4. Likewise, in **Caroget Investment Limited v Aster Holdings Limited & 4 others *[2019] KECA 79 (KLR),*** the Court of Appeal emphasized that a claimant succeeds on the strength of its own evidence and not on the weakness of the defence. 5. If the trial court entered judgment because the Appellant failed to produce evidence disproving the alleged additional supplies, without first finding that the Respondent had discharged its own burden, then it fell into error. **(d) Whether the evidence established a variation of the original contract** 1. The Respondent's case effectively invited the trial court to find that the parties varied the original agreement by agreeing to additional supplies. 2. A variation of a contract, like the contract itself, must be proved. There must be evidence of mutual assent to the altered terms. 3. The Court of Appeal in **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR** made it clear that courts cannot rewrite contracts or imply obligations that the parties themselves did not agree upon. A party alleging that contractual terms changed bears the burden of proving that change. 4. In the present case, if there was no documentary or oral evidence demonstrating that the Appellant expressly requested additional materials outside the original quotation or agreed to pay an additional Kshs. 398,000/=, then the Court cannot infer such liability merely because further supplies are alleged to have been made. **(e) Whether the judgment can stand** 1. The appellate court is mindful that findings of fact by a trial court are entitled to deference. However, such deference is not absolute. 2. In ***Peters v Sunday Post Ltd [1958] EA 424,*** it was held that an appellate court may interfere where the trial court failed to take account of particular circumstances or probabilities material to the estimate of the evidence, or where the conclusion is plainly wrong. 3. Similarly, in ***Jabane v Olenja [1986] KLR 661****,* the Court of Appeal held that interference is justified where findings are based on no evidence, on a misapprehension of the evidence, or on wrong principles. 4. Applying those principles to the present appeal, this Court is satisfied that the learned Adjudicator was required to identify clear evidence establishing that the supplies allegedly made on **14th October 2023** and **6th February 2024** were the subject of fresh contractual arrangements and not merely part-performance or completion of the original contract. If that evidential threshold was not met, the finding that the Appellant owed Kshs 406,500 ( being **Kshs. 398,000/=** over and above the first contract balance of **Kshs 8.500**) cannot be sustained. 5. Whether the appeal ultimately succeeds will depend on the precise contents of the documentary record. If, as appears from the material summarized before this Court, the Respondent failed to produce sufficient evidence of separate orders, deliveries, and acceptance giving rise to a new payment obligation, then the trial court erred in concluding that the Respondent had proved its claim on a balance of probabilities. **DETERMINATION, DISPOSITION AND ORDERS** 1. Having carefully reconsidered the pleadings, the documentary evidence, the proceedings before the trial court, the judgment appealed from, the memorandum of appeal, and the submissions of the parties, this Court now determines the issues framed earlier. **(a) Whether the Respondent proved the claim for Kshs. 406,550/=** 1. The burden of proving the claim lay squarely upon the Respondent by virtue of Sections 107, 108 and 109 of the Evidence Act. 2. Although there is no dispute that the parties entered into a contractual relationship on **18th September 2023** for the supply of construction materials at an agreed consideration of **Kshs. 858,500/=**, the Respondent's claim before the trial court was not founded upon that contract. Rather, it was founded upon the assertion that the Appellant subsequently placed additional orders on **14th October 2023** and **6th February 2024**, thereby incurring an additional liability of **Kshs. 398,000/=**.The existence of those alleged subsequent contracts was specifically denied by the Appellant. 3. The Respondent was therefore under a legal obligation to prove not only that additional materials were supplied but also that: * ***The Appellant requested those additional materials;*** * ***Those supplies fell outside the original quotation dated 18th September 2023;*** * ***The Appellant accepted delivery thereof; and*** * ***The parties agreed that payment would be made separately from the original contract price.*** 1. Upon independently evaluating the record, this Court finds that the evidence relied upon by the Respondent falls short of establishing those essential elements. 2. The quotation dated **18th September 2023** remained the only undisputed contractual document governing the relationship between the parties. While the Respondent relied upon invoices and assertions that further materials were supplied, there was no satisfactory evidence demonstrating that those supplies arose from fresh contractual obligations distinct from the original agreement. 3. In particular, the record does not disclose cogent evidence in the nature of separate quotations, purchase orders, written instructions, correspondence, signed delivery notes expressly identifying the supplies as additional, or any written acknowledgment by the Appellant accepting liability for the alleged additional sum of **Kshs. 398,000/=**. 4. The Court is alive to the reality that commercial contracts may be varied orally or by conduct. However, where such variation is disputed, the party asserting it must prove it by credible evidence. Courts cannot infer a new contract merely because goods continued to be supplied after the execution of the original agreement. 5. The Court of Appeal in ***National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR*** reiterated that courts cannot rewrite contracts for parties and are bound to enforce only those contractual obligations proved to have been agreed upon. **(b) Whether the trial court properly evaluated the evidence** 1. Having re-evaluated the evidence, this Court is persuaded that the learned Adjudicator placed undue reliance on the Respondent's assertion that additional supplies were made without first determining whether those supplies had been proved to constitute separate contractual obligations. 2. The learned Adjudicator appears to have concluded that because the Appellant did not satisfactorily explain why payment was withheld, the Respondent's claim had been proved.With respect, that approach was inconsistent with the statutory burden imposed by the Evidence Act. 3. As was stated by the Court of Appeal in **Caroget Investment Limited v Aster Holdings Limited & 4 others [2019] KECA 79 (KLR**), a claimant must succeed on the strength of his own evidence and not on the weakness of the defence. 4. This Court is therefore satisfied that the Respondent did not discharge the evidential burden necessary to prove that the alleged supplies made on **14th October 2023** and **6th February 2024** were outside the scope of the original contract or that they created an independent obligation to pay **Kshs. 398,000/=** over and above the original agreement. 5. Consequently, the learned Adjudicator fell into error in entering judgment for that sum. **(c) Conclusion** 1. This Court finds merit in the appeal. 2. The Respondent proved the existence of the original contract dated **18th September 2023** but failed to prove, on a balance of probabilities, that the Appellant entered into subsequent agreements giving rise to the additional claim of **Kshs. 398,000/=**. 3. The finding of liability by the trial court was therefore not supported by sufficient evidence and cannot stand. **Orders** 1. Accordingly, the Court makes the following orders: 2. ***The appeal is hereby allowed.*** 3. ***The judgment and decree of the Small Claims Court in Milimani SCCCOMM No. E2893 OF 2024 awarding the Respondent Kshs. 406,550/=, interest and costs are hereby set aside.*** 4. ***In their place, an order is hereby substituted dismissing the Respondent's claim for Kshs. 406,550/=.*** 5. ***For the avoidance of doubt, this judgment does not determine the parties' respective rights regarding the undisputed balance of Kshs. 8,550/= under the original contract, that issue not having formed the basis of the decree appealed from.*** 6. ***Each party to bear their own costs.*** Orders accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF JULY, 2026.** **HON. L. P. KASSAN** **JUDGE**