https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11052

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E128 OF 2025** **RTC MEDICAL CENTRE………………………………….…………. APPELLANT** **-VERSUS-** **BERNARD OMONDI ODAWO……….………………………… RESPONDENT** *(****Being an appeal from the judgment/decree of the Honourable K. Cheruiyot Senior Principal Magistrate) delivered on 9/05/2025 in Kisumu Civil Case No. E200 of 2022)*** **JUDGMENT** 1. This appeal was provoked by a judgment by Hon. K. Cheroiyot, SPM delivered on 9/5/2025 when he entered judgment in favour of the respondent in the sum of Kshs. 260,300/= plus costs of the suit. 2. Vide an amended plaint dated 1/09/2022 the respondent claimed that he had supplied the appellant assorted medical equipment and products valued at Kshs. 942,750/=. That the appellant had over time paid Kshs. 600,000/= leaving a balance of Kshs. 342,750/= 3. The appellants filed a statement of defence dated 3/4/2023. They generally admitted existence of an agreement for supply of goods. They derived the claim in terms of the amount owing stating that some payments had not been accounted for. 4. The matter proceeded for hearing culminating to the impugned judgment. The appellant being aggrieved filed the appeal listing the following grounds: - 1. That the learned magistrate erred in law and in fact in finding that the respondent had proved the existence of a valid and enforceable contract, despite the lack of a formal executed agreement and absence of consistent or authenticated delivery documentation. 2. That the learned magistrate erred in law by failing to properly evaluate and take into account the appellant’s documentary and oral evidence, particularly the specific Mpesa and bank payments tendered in proof of partial or full settlement of the alleged debt, as outline in the defence and supporting documents. 3. That the Hon. Magistrate misdirected himself in law and facts by holding that the plaintiff had ‘proved the case beyond reasonable doubt’ which is the standard applicable to criminal cases, instead of applying the correct civil standard of proof on a balance of probabilities. 4. That the learned magistrate erred in failing to appreciate that the respondent’s claim was for special damages which required strict pleading and strict proof, yet no reliable documentary evidence was furnished to authenticate the invoices, quantities delivered or acknowledgement of delivery by the appellant. 5. That the learned magistrate failed to properly analyse the discrepancies pointed out by the appellant between the amounts pleaded in the plaint, the invoices and those acknowledged in the payment statements, thereby relying on unverified, inconsistent and exaggerated claims. 6. That the Honourable court erred by failing to make any findings on the defence evidence, which was substantial and raised material issues of facts and law, including: - * Partial payments evidenced through verifiable Mpesa and RTGS transactions. * Contestation of invoice figures, such as the dispute over invoice number 469. * Denial of certain deliveries and assertion of overstatement of debt by the respondent. 1. That the Honourable magistrate erred in law by awarding general damages in a claim purely founded on breach of contract/sale of goods, contrary to established principles that general damages are not recoverable in claims for breach of contract where special damages are specifically pleaded. 2. That the learned magistrate erred in entering judgment in favour of the respondent ‘as prayed in the plaint’ despite the respondent’s own admission that the sum claimed in the plaint was not due in full, thereby making an award that was not supported by the pleadings. 3. That the judgment of the Honourable magistrate is against the weight of the evidence on record, fails to consider the legal burden of proof placed on the respondent under Section 107-109 of the Evidence Act (Cap 80), and amounts to a miscarriage of justice. 4. With those grounds the appellant urged the court to set aside the judgment in its place dismiss CMCC E200 of 2022 with costs. 5. I am sitting as the just appellant court. My role is to reconsider re-evaluate the evidence as taken by the trial court and reach my own conclusion on the issues. This is well settled (see the case of Selle & Another versus Associated Matter Boat Company Limited (1968) EA 123. I am aware that as an appellate court I will not adversely interfere with findings of fact by the trial court unless it can be demonstrated that they were based on no evidence at all and on a misapprehension of the same and the court is shown to have acted on wrong principles in reaching the findings. This was what was held in Mwana Sokoni versus Kenya Bus Services Limited (1982 -88) KAR 348. 6. To effectively discharge my role, I will go through the evidence on record. PW1 Bernard Omondi Odawo adopted his statement dated 11/6/2022. In that statement he stated that he had entered into a contract for supply of assorted medical equipment valued at Kshs. 942,750/=. That the defendant paid a total of Kshs. 600,000/= that the balance left unpaid was Kshs. 342,750/=. I note that the plaint was amended to reflect the new balance after reviewing the total value of goods supplied to Kshs. 942,750/= 7. In cross examination the plaintiff said that they had an arrangement not agreement. That the payments were made through Mpesa. The plaintiff referred to and produced the documents filed as exhibits. 8. The defendant, Samuel Otieno introduced himself as the Managing Director of the appellant. He also adopted his written statement. He went on to produce as exhibits the documents filed. In cross examination he said that he had no contract with the respondent but they had a gentle manis agreement. That he used to pay for goods delivered. That he paid at different times. 9. The learned magistrate on considering the evidence on record and pleadings found this to be a claim of sale of goods. He stated:- ‘7. The issues that arise from the pleadings and evidence are whether there was a valid contract and whether the plaintiff is entitled to the relief sought.’ 10. My evaluation of the evidence in light of the pleadings is that while the parties did not have a written contract they had what the respondent referred to as an arrangement. The defendant in his evidence called it a gentleman’s agreement. The net result of the relationship was that goods were supplied to the appellant and paid for. The only question is whether all that was supplied was fully paid for. 11. As to the legal status of this agreement or arrangement the Court of Appeal in the case of William Muthee versus Bank of Baroda (2014) eKLR stated: - ‘In the law of contract the aggrieved party to an agreement must in addition prove that there was offer, acceptance and consideration. It is only where those three elements are available that an innocent party can bring a claim against the party in breach.’ 1. I have further benefited from the decision of the Aramis (1989) 1 Llyods Rep 213 on the circumstances under which the contract might be implied. In that case the court held: - ‘As (to) the question whether or not any such contract is to be implied is one of fact, its answer must depend upon the circumstances of each particular case and agree that no such contract should be implied on the fact of one given case unless it is necessary to do so; necessary that it is to say in order to give business reality to a transaction and to create enforceable obligations to exist.’ I do not think it is enough for the party seeking the implicant of a contract to obtain ‘it might’ as the answer to their question for it would in my view, be contrary to principle to countenance the implicant of a contract from conduct relied on is more than consistent with an intention to contract that with an intention not to contract. It must surely be necessary to identify conduct referable to the contract contended for or at the very least, conduct inconsistent with there being no contract between the parties to the effect contended for. Put another way, I think it must be fatal, to the implication of a contract if the parties would or might have acted exactly as they did in the absence of a ‘contract.’ 1. It has also been held by our Court of Appeal in the case of Ali Abdi Mohammed versus Kenya Shell & Co Limited (2017) eKLR that: - ‘11 it therefore follows that a content can exist where no words have been used but where it can be inferred from the conduct of the parties that a contract has been concluded……….’ 1. In the instant case the appellant and respondent had an arrangement when goods were supplied and paid for over time. The question of delivery note does not arise. At no point did the appellant complain about the quality or quantity of goods supplied. He paid for them. Invoices were produced as exhibits. The appellant was paying against those invoices. 2. I have seen the question raised against Kshs. 100,000/= paid by the appellants. A simple arithmetic exercise of addition shows that it was covered in the Kshs. 600,000/= admitted. 3. From my findings above I am in agreement with the learned Magistrate that this is a contract for sale of goods. Under Section 49(1) of the sale of goods act it is provided ‘Where, under a contract of sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects and refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods.’ 1. In this case the respondent is the unpaid seller. He brought an action for Kshs. 342,750/= After evidence of further payment of Kshs. 82,450/= he was entitled to a judgment for the remaining amount in the sum of Kshs. 260,300/= 2. From my findings the respondent had a right to sue for the balance of the purchase price. He successfully proved his case on the balance of probabilities. Nothing said in the statement of defence and the appellants evidence shook this evidence. 3. For the reasons I have stated above the finding and judgment by the learned Magistrate is safe. I find no reason to disturb it. The appeal in its entirely lacks merit. It is hereby dismissed. 4. The respondent is the successful party. The appellant shall pay the costs of this appeal. 5. It is so ordered. **DATED, SIGNED AND DELIVERED IN VIRTUAL COURT IN MAKADARA THIS…3rd ……DAY OF ….JULY…….. 2026.** **HON. Alex. K. ITHUKU** **JUDGE** Judgment virtually delivered in the presence of Ms. Mohammed for the respondent. The firm of Omboto for appellant are absent. Date taken in court. **HON. Alex. K. ITHUKU** **JUDGE**