https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12989

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E054 OF 2024** **SIMON NJAGI WANGAI……………………...…………..…………..APPELLANT** **VERSUS** **THUMAITA TEA FACTORY..………….…………………………..RESPONDENT** ***(Being an Appeal from the Judgment of Honorable Kemuma Sarah Manyura (R.M) delivered on 26/4/2024 at Kerugoya Small Claims Court No. E014 of 2024)*** **JUDGMENT** 1. By a Statement of Claim dated 29/2/2024, the Appellant sued the Respondent seeking Ksh. 274,585.85 and costs of the claim plus interest. The Appellant pleaded that in 2023, he delivered 6,235.20 Kgs of green tea leaves, but the Respondent withheld payment thereto on allegations of falsification. 2. The Respondent filed its Response to the Statement of Claim dated 26/3/2024 denying the claim, and prayed for its dismissal. 3. Upon full hearing of the claim, the trial court dismissed the Appellant’s claim with costs. ***The appeal*** 1. On appeal, the Appellant by his Memorandum of appeal dated 24/5/2024 set out 4 grounds as follows: 1. *The learned trial magistrate erred in fact and law in making a determination that the claimant didn’t deliver 623.5 kgs of green tea leaf for the year 2022- 2023 to the respondent’s factory despite the evidence showing contrary.* 2. *The learned trial magistrate erred in fact and law in shifting the burden of proof on the claimant to explain the excess quantities of tea leaf delivered to the respondent despite the respondent having not discharged their burden of proving that there was any excess quantity delivered by the claimant in the first place.* 3. *The learned trial magistrate erred in fact and law in failing to make a determination that the respondent didn’t prove falsification of tea leaf records by the claimant.* 4. *The learned trial magistrate erred in fact and law in ignoring the evidence tendered by the claimant during the trial and thereby making a determination contrary to the weight of evidence adduced by the claimant and the applicable laws.* ***Oral Evidence*** 1. CW1 Symon Njagi Wangai, the Appellant herein testified that, *“I live in Kebaga. I am a tea farmer and coffee farmer. I am the Claimant. The Respondent refused to pay me my bonus for 2022 of Ksh. 256,988.50. Other tea growers were given their bonus for 2022 and 2023. I was denied my bonus on grounds for falsification. The tea I harvest in 2021 and 2022 is more than 2023. According to board meeting on allegation of falsification, I showed them where I got the tea but they did not pay me. In 2003 and 2004 and 2014 they also did not pay me. When I spoke to them, they saw I had not falsified tea. They then paid me on 24/12/2021 they paid me ksh 135,761. Which was payslip date September 2021-C - Exhibit no 1 for 2004, 2009 and 2014 we paid together Ksh 88,363.25/= in 24/11/2021 and they deducted 20%. On consent and indemnity, they did not tell me why they were deducting 20%. I did not know I was signing all I did was signing to be paid. They did not explain to me why I was signing. I do not understand English. There is nowhere I signed that I was falsifying leaf. I am not aware of any vote of no confidence. I was not given documents showing how my bonus for 2022-2023 was distributed to other growers. In 2022 with regard to worksheet. I appear so many times, a farmer can have many workers, (Clause 4) take the tea to buying, Centre for approval, so my many entries, they are using my number to sell the tea. Now one must have a card to sell tea. If card is lost, we use waiting which we give clerk. My card has even been lost and found 26/5/2023 by farmer Lucy Wamakwue Mwaniki and Linus Mwaniki. They called Chairman for the factory. Plot A and Plot B are not my plot from Respondent documents.”* 2. On cross examination, he stated that *“I was the Chairman of my buying Centre at Kiamatha Tea buying Centre. We were 5 of us. I was summoned by Chairman of Thumaita Tea Factory. All the tea I took to buying Centre from my farm. It is normal for factory cooperative to show farmers how bonus are given. I went to board meeting. I was told about leaf-falsification which I refused. When they did census, I was not given any report. Last census was different as they came with a digital machine to estimate Area of tea growing farmers. Current board and 2021 board are different people. When new board came, they held money for many people, they released money but deducted 20%. I do not know of other people signed the indemnity, I am speaking myself. Falsification means there were kilos that where not from my shamba.”* 3. In re-examination, he stated that, *“Plot no A and B where consumes was done is not my land. They have not brought documents to Court. In 2022, the tea I have taken has been less than previous ears where they have been paying me and never said I have falsified.”* 4. DW1 Julia Wanjiru Maina, testified that, *“I am a field service coordinator of Thumaita Tea Factory. My duty is tea extension growers’ leaf, leaf collection and logistics and any activity involving the farms. I have been in the Tea Sector for 7 years and at Thumaita Tea Factory 5 years. We are here because of Claimant who is our farmer. The factory has not paid Claimant Ksh 269,585.85 because he was found to have falsified the green leaf. That is a farmer of tea gives more tea than what he gives from his bushes. How do you estimate what one bush of tea is to give? A bush should give an average of 1.5 to 2.0 Kg per year. When we found Claimant guilty of falsification, we found is kgs more that the bushes he has registration. When you are a new farmer requesting for registration, we go to your farm by buying Centre committees members, pay a fees and letter to field source coordinator approves the registration after recommendation from buying Centre. It is not automated that of you are registered at Centre you are registered at the factory, we have to have a tea-taster who visits the farm to notify of growers to be registered, confirms farm ownership and confirms bushes at the ground. The notification committee after visiting farm upon approval of documentation and grower is registered and gets a grower number. Claimant was registered as a grower. We determined he falsified after carrying out the audit. We have a usual and system audit. We determined Claimant falsified the green leaf through a system audit. The system is able to question the bushes, or recognize leaves not recognized by our system. As management we went to verify bushes of Claimant done tea taster-tea assistant and Chairman TM-009-Buying Centre Chair Thumaita. Claimant was present doing census. We calculated productivity against the Kgs given and that Kgs where above average by 1.5-2 Kgs per bush. We get the area and spacing to get number of bushes if I get a spacing of 2m between bushes is divided against the area to get productivity. When activity was found to be rough, Claimant was given a letter to come and explain to Board to explain where he gets his tea, he did in a full board sitting there was also management he was unable to explain the productivity where he was able to produce any leave record or any record where he was getting his tea, that is why his money was withheld. Claimant bonus was he already given his monthly pay which was 21 Kgs per Kg and mini bonus which is weight of 1st 6 months which is Ksh in total. The Claimant was not the only grower accused for falsification-5. There those who admitted and those who refused when we carried the census Susan the Claimants wife was called on the issue of falsification and was also not paid for bonus money. Close proximity under Clause 4 in response means when audit is conduct, checks on similarity and show they repeat themselves where Claimant name appear to have sold tea, the weight made is similar to her grower ahead of him or below him. In a normal cause of business, it is unlikely that growers can have similar. One is given a card at buying Centre. When one losses a card - new farmer card - NFC like an ATM, you should come to field service office at factory, you are given a waiting card or issued with another one because you can’t sell your green leaf without that card. In previous years, Claimant has been producing more green leaf, he was lucky as system was not in place and audit conducted. The identifying form signed by Claimant, is a form for growers can get their previous monies when the new Board came in and where to be deducted 2% for legal fees, administrative expenses and purchasing of weighing scale machine for factory where over 100 farmers signed the agreement. The Board encouraged out this journey to start a relationship with their farmers.”* 5. On cross examination, she stated that, *“The digital machine was put in place in 2021. In 2021, we went to Claimant’s bushes to ascertain. In 2021, there was no falsification of leaf. We do digital census every 10 years but can do it that if there is an issue like falsification. There was no census in 2009 With regard to Simon, there was census 2004, 2009 and 2014 that there was falsification but I have no records here. I would now he carried out falsification because there are procedures. Marginal point shows is between 10-15 bushes according to the area. You conducted a census with a record to Simon’s Where is there no document in Court with regard to Simon’s land? We served our lawyers. Susan has her farm has his farm and both grower of Thumaita. Do you have any evidence that Simon was given a vote of no confidence as a chairman? I have no evidence before Court. Simon is a farmer. Do you know his level of his education? Can you confirm he understood the contents of indemnity before he signed? I cannot confirm. I can confirm those who were paid were those who signed indemnity. When did rules come that one cannot sell without code? It started last year on October you have to use card but previously you would use a waiting. Some brought Simon’s card and he had not notified us that it was lost. There was a mini bonus paid to Claimant and monthly amount paid, have not served Claimant to recover money even after accusing him for falsification. If one is accused of falsification the money is withheld and stays in factory’s accounts. The money should be held by company for falsification of farmer is found to have falsified. Claimant’s bonus as showed to other farmer as it was determined as pool money which was paid in October following board’s decision. In 2022-2023 Claimant collected 6000kg and in previous years he collected more and we paid.”* 6. In re-examination, she stated that, *“We clarified that we produce documents with record to Simon to our advocates. Lack of production is not on our side. The issue of indemnity, I was not there when Claimant was signing because it was done by the Board. When Simon’s card was lost it was with the Tea Buying Clerk together with the Claimant’s wife. The management got to know Claimant’s card was lost through a committee member from buying Centre who called the tea factory director. The card was returned to the Claimant. On issue of the distribution of bonus, the decision is from the by-Laws-Board has powers to distribute or not to distribute bonus. Vote of no confidence is by members of Tea buying Centre where Claimant was Chairman and was voted out.”* ***Submissions*** 1. The Appellant urges that it was the Respondent’s burden to prove he falsified green leaves kilos as he who alleges must prove as per section 107 of the Evidence Act, and cites *Kabuu v Chinga Tea Factory Company Limited (Civil Appeal E005 of 2021) [2025] KEHC 4482 (KLR), William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLE 526, Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another (2015) eKLR, Miller v Minister of Pensions [1947] 2 All ER 372 and John K Waweru & 12 others v Theta Tea Factory Company Limited & another [2019] eKLR*. He urges that he had a consistent production of 6415 kilos in 2022 and 6505 kilos in 2021, and the allegation that he could not produce 6235 kilos in 2023 was clearly misguided. He cites *China Zhongxing Construction Company Ltd v Ann Akuru Sophia [2020] eKLR and Selle and another v Associated Motor Board Company and Others [1968] EA 123* on theduty of the first appellate court. He urges that the Respondent failed to prove falsification, and was thus entitled to his bonus amount of Ksh. 256,988.50 plus interests at court rates. 2. The Respondent urges that the appeal lacks merit because it challenges a factual finding by the Small Claims Court, in contravention of section 38 of the Small Claims Court Act, and cites *Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR and Mwita v Woodventure (K) Limited & Another (Civil Appeal 58 of 2017) [2022] KECA 628 (KLR)*. It urges that the Appellant’s failure to prove that the quantity of tea delivered was consistent with the capacity of his tea bushes and his failure to provide sufficient evidence to substantiate his claim left its defence of falsification intact. ***Analysis and determination*** 1. From the grounds of appeal as framed, the sole issue for determination is whether the Appellant proved his case on a balance of probabilities. ***Duty of the Court*** 1. Before delving into the merits of the appeal, the question whether the appeal is strictly on points of law, as decreed under Section 38 of the Small Claims Court Act, has been raised. 2. The significance of minute consideration of the evidence in an appeal from a Small Claims Court is manifest from the provisions of section 38 (1) and (2) of the Small Claims Court Act that an appeal lies to the High Court on a point of law and that the decision is final, as follows: *“(1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.* ***(2) An appeal from any decision or order referred to in subsection (1) shall be final.”*** 1. It is trite that an appeal on a matter of law includes the inquiry whether the conclusions of the trial court are sound on the evidence availed before it and, therefore, with respect to counsel for the Respondent, this involves the re- evaluation of the evidence. In *King’ara v Independent Electoral and Boundaries Commission & 2 others [2014] KECA 886 (KLR)*, the Court of Appeal *(Visram, Koome (as she then was) & Odek, JJ.A.)* after considering the authorities held: *“Having established that we have jurisdiction to determine only issues of law as per the provisions of Section 85A of the Elections Act,* ***to us the whole question of whether the trial Judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence with of course the usual caveat, that we did not see the witnesses demeanor is an issue of law.****”* 1. Similarly, in ***Stanley N Muriithi & another v Bernard Munene Ithiga*** *[2016] eKLR*, the Court of Appeal *(Waki, Karanja & Kiage, JJ.A)* observed that: *“We hasten to observe, however,* ***that failure on the part of the first appellate court to re-evaluate the evidence tendered before the trial court and as a result, arriving at the wrong conclusion is a point of law.****”* 1. Consequently, this being a first and final appeal under the Small Claims Act, this court is duty bound, as a matter of law, to delve at some length into factual details and revisit the facts as presented in the trial court. ***On the merits*** 1. On the merits, the Appellant herein testified that, *“The Respondent refused to pay me my bonus for 2022 of Ksh. 256,988.50. I was denied my bonus on grounds for falsification. The tea I harvest in 2021 and 2022 is more than 2023. According to board meeting on allegation of falsification, I showed them where I got the tea but they did not pay me.”* On cross examination, he stated that *“I was the Chairman of my buying Centre at Kiamatha Tea buying Centre. I was summoned by Chairman of Thumaita Tea Factory. All the tea I took to buying Centre from my farm. I went to board meeting. I was told about leaf-falsification which I refused. When they did census, I was not given any report. Last census was different as they came with a digital machine to estimate Area of tea growing farmers. Falsification means there were kilos that where not from my shamba.”* In re-examination, he stated that, *“In 2022, the tea I have taken has been less than previous years where they have been paying me and never said I have falsified.”* 2. DW1 testified that, *“I am a field service coordinator of Thumaita Tea Factory. My duty is tea extension growers’ leaf, leaf collection and logistics and any activity involving the farms. We are here because of Claimant who is our farmer. The factory has not paid Claimant Ksh 269,585.85 because he was found to have falsified the green leaf. That is a farmer of tea gives more tea than what he gives from his bushes. How do you estimate what one bush of tea is to give? A bush should give an average of 1.5 to 2.0 Kg per year. When we found Claimant guilty of falsification, we found is kgs more that the bushes he has registration. We determined Claimant falsified the green leaf through a system audit. The system is able to question the bushes, or recognize leaves not recognized by our system. As management we went to verify bushes of Claimant done tea taster-tea assistant and Chairman TM-009-Buying Centre Chair Thumaita. Claimant was present doing census. We calculated productivity against the Kgs given and that Kgs where above average by 1.5-2 Kgs per bush. We get the area and spacing to get number of bushes if I get a spacing of 2m between bushes is divided against the area to get productivity. When activity was found to be rough, Claimant was given a letter to come and explain to Board to explain where he gets his tea, he did in a full board sitting there was also management he was unable to explain the productivity where he was able to produce any leave record or any record where he was getting his tea, that is why his money was withheld. The Claimant was not the only grower accused for falsification. There those who admitted and those who refused when we carried the census Susan the Claimants wife was called on the issue of falsification and was also not paid for bonus money. In previous years, Claimant has been producing more green leaf, he was lucky as system was not in place and audit conducted.”* 3. For a new member to be registered, the Centre committee’s members visit the farm, the member pays a fee, and the field source coordinator approves the registration after recommendation from the buying Centre. The tea-taster then visits the farm, confirms farm ownership and the bushes on the ground and the grower is registered and given a grower’s number. 4. DW1 led evidence as to how the Appellant was found to have falsified green leaf. During the disciplinary hearing, the Appellant was unable to offer any explanation for the glaring discrepancy between the 2197 bushes reflected in his records and the 1,326 bushes that were physically verified. More importantly, the Appellant did not produce any evidence to show that he had leased, acquired, or otherwise sourced additional tea bushes from other farmers to account for the inflated figures. A visit to the Appellant’s farm in his presence revealed that his productivity was anomalously high at 4.9 kg per bush, against the estimated average of 1.5 - 2 kg per bush for the region. Further investigations established that Alice Murugi, the leaf collection clerk, was allocating non-genuine kgs of green leaf to the Appellant using his card, which was purportedly lost. It was established that the Appellant previously served as the chairman of Kiambatha Tea Buying Centre before being voted out of office. 5. Of course, the claimant has the general burden of proof under sections 107-108 of the Evidence Act, as follows: *“****107. Burden of proof.*** *(1) 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.* *(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.* ***108. Incidence of burden.*** *The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”* 1. Proof of particular fact is provided for under section 109 of the Evidence Act as follows: “***109. Proof of particular fact.*** *The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.*” 1. However, on the fact of alteration of records, once it was alleged and ***prima facie*** evidence led that the Appellant had falsified his green leaf record, the evidential burden under section 109 of the Evidence Act shifted to him to rebut those accusations by cogent evidence. The Appellant, however, failed to discharge that burden, leaving DW1’s testimony uncontroverted and the allegations of falsification unrebutted. 2. This evidence of DW1, which bears emphasis, is unanswered and sufficient proof pursuant to section 109 of the Evidence Act: “*The factory has not paid Claimant Ksh.269,585.85 because he was found to have falsified the green leaf. That is a farmer of tea gives more tea than what he gives from his bushes. How do you estimate what one bush of tea is to give? A bush should give an average of 1.5 to 2.0 Kg per year. When we found Claimant guilty of falsification, we found is kgs more that the bushes he has registration. We determined Claimant falsified the green leaf through a system audit. The system is able to question the bushes, or recognize leaves not recognized by our system. As management we went to verify bushes of Claimant done tea taster-tea assistant and Chairman TM-009-Buying Centre Chair Thumaita. Claimant was present doing census. We calculated productivity against the Kgs given and that Kgs where above average by 1.5-2 Kgs per bush. We get the area and spacing to get number of bushes if I get a spacing of 2m between bushes is divided against the area to get productivity. When activity was found to be rough, Claimant was given a letter to come and explain to Board to explain where he gets his tea, he did in a full board sitting there was also management he was unable to explain the productivity where he was able to produce any leave record or any record where he was getting his tea, that is why his money was withheld.*” 1. To require the Respondent to prove that the appellant could not have produced the records kilos of tea-leaf also appears, improperly to require proof of a negative fact but the evidence of DW1 does show that the appellant could not, in all probability, have produced the leaf quantity from his share of bushes. It was for the appellant to rebut that and show that he actually did. 2. The Court is satisfied that the Respondent proved on a balance of probabilities that the Appellant’s green leaf records were falsified, and the resultant withholding of his bonus was justified. Consequently, this court finds that the trial court properly evaluated the evidence on record in arriving at the impugned decision, and there is, therefore, no basis to interfere. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds that the Appellant’s appeal herein is without merit and it is dismissed. 2. The appellant shall pay the costs of the appeal to the Respondent. *Order accordingly.* **DATED AND DELIVERED THIS 20TH DAY OF AUGUST 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES**: Mr. Kagio for the Appellant. Mr. Macharia for the Respondent.