[2023] KEHC 24229 (KLR)

Sinoven International Group Limited & another v Yalfa Cargo Handling Limited (Civil Suit 57 of 2015) [2023] KEHC 24229 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24229 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 57 of 2015

DKN Magare, J

October 24, 2023

Between

Sinoven International Group Limited

1st Plaintiff

Keyun International Logistics Co Limited

2nd Plaintiff

and

Yalfa Cargo Handling Limited

Defendant

Judgment

Background 1. On 8th May 2020, this Court entered a partial Decree in favour of the Plaintiffs in the terms as follows:a.Judgment be and hereby entered for the Plaintiff against the Defendant as follows:i.Judgement on Admission US $ 179,952. 79ii.Summary Judgment US $ 390,383. 84Total US $ 570,346. 63b.Interest at court rates of 14% p.a from 08/5/2020 till payment in full.c.Costs of the Claim for which Judgment has been entered to be to the Plaintiff.

2. I note from the record that the said partial judgment remains and has not been set aside. There have been various applications on the manner and mode of payment the amounts adjudged in the partial judgment. The latest was a consent order dated 5th June 2023 where parties agreed at the instance of the court, that the defendant was to pay the Plaintiff/partial decree holder an amount of US $ 20,000 on 26th of every month pending the Judgement of Court.

3. The said partial judgment 8th May 2020 is not the subject of this suit. The difference between the partial and the total claim are the subject of this court’s determination. The aspect of costs are also due.

4. The issues for determination are: -i.Whether there is a debt of due to the Plaintiff from the plaintiff.ii.Who is to bear the costs of the suit.

Pleadings 5. In the Plaint dated 10th March 2015, the Plaintiffs pleaded among others that:i.The Plaintiffs and the Defendant entered into five commercial contracts leading to an outstanding balance for US $ 948,675. 40` which the Plaintiffs claimed against the Defendant.ii.The contract dated 14th October 2014 was for US $ 610,000 payable in full on or before 1st October 2014 for the supply of 10 HOWO Tractors at US $ 6100 each.iii.The contract dated 5th October 2014 was for US $ 71488. 65 payable in full on or before 10st February 2014 for the sale of 228 durature tubeless tyres at US $ 300. 37 each.iv.The contract dated 2nd May 2013 was for US $ 304. 22 payable in full on or before 16th October 2013 for the sale of 228 tubeless tyres at US $ 304. 22 each.v.The contract dated 5th October 2013 was also for US $ 71488. 65 payable in full on or before 5th February 2014 for the sale of 228 tubeless tyres at US $ 300. 37 each.vi.That there was also an outstanding amount of US $ 357,443 owing by the Defendant to the Plaintiffs and payable in full on or before 1st of October 2013 for the sale of 1190 tubeless tyres.vii.Under the said agreements, the Defendant was contractually liable to pay US $ 1200825 on or before 1st October 2014 but the Defendant had settled only US $ 252150. 45 leaving a balance of US $ 948625. 40.

6. The Plaintiffs thus prayed for the following reliefsa.US $ 948626. 40b.Interest at 21% per annum from 1st October 2014 till payment in full.c.Costs.

7. It was also pleaded that the Defendant has so far settled contracts dated 2nd May 2013 and 14th October 2013.

8. The Defendant denied breach of the Agreements. They stated that there were 4 contracts while the plaintiff indicated there were 5 contracts. These were fori.2012001 for 72,404. 36(304. 22 x 238)ii.20122002 for 71,488. 06( 300. 37 x 238iii.20122003 for 71,488. 06( 300. 37 x 238iv.20122003 for 610,000(61,000 20122002 for 71,488. 06(300. 37 x 238 x 10total US $ 825,8380

9. The Plaintiff had another contract for 1190 1190 Tubeless tyres @ 300. 37 totaling to US $ 357,440. 30. total contracts were for US $ 1,182,820. 30.

10. Subsequently the plaintiff applied and joined a third party who subsequently left proceedings herein.

Evidence 11. This case has had a myriad of applications, by the defendant mostly on the eve the hearing. I directed that the last one awaits directions by the duty court at the right time. Subsequently, I directed the said application be heard on 27/11/2023.

12. Further, as, I was about to conclude this Judgment, the Defendant changed advocates and filed another application. I will hopefully direct on its hearing after the Judgement is delivered. The same may be directed to be heard on 27/11/2023 with the other pending application.

Evidence 13. I had to stamp my authority to move the matter forward. There was even an application filed on the eve of the main hearing to frustrate the hearing of the suit. the Plaintiff called one witness, PW1, James Mutua Muange who testified and produced evidence in Court.

14. The witness relied on his witness statement dated 20th July 2023, the bundle of documents dated 10th March 2015 and the Supplementary Bundle of Documents dated 18th October 2017 to support the Plaintiffs’ case.

15. It was his case that cheque no. 000541 dated 30th August 2016 in the name of the Sinotruck Machinery Limited was drawn but the Plaintiffs did not receive the amount US $ 30000 and that in fact he was not aware of the payee of that cheque. This was not the plaintiff as the plaintiff were Sinoven International Group Limited and Keyun International Logistics Co. Limited.

16. He also contented that he was aware that the Defendant had not settled the amounts due of over US $ 948626. 40

17. It was his further case that he was appointed in August 2015 as the agent of the Plaintiffs. On cross examination, it was his case that the Plaintiffs did not recognize any payments to other persons other than the Plaintiffs.

18. The Defendant called one witness, DW1, Nuhu Ngoma Gyaza. He relied on his witness statement dated 24th June 2015, the Bundle of Documents dated 7th September 2019, the Supplementary List of Documents dated 7th July 2023 and a Further List of Documents dated 10th July 2023 to support the Defendant’s case.

19. In cross examination, it was his case that the Defendant signed 4 contracts with the Plaintiffs. He further stated that the balance admitted was US $ 390,383. 84 and that was what the Defendant was supposed to pay to the Plaintiffs.

20. The witness also stated that some payments were made to China Africa Total Logistics and not the Plaintiff and that Pan Africa Supply Chain Solutions were paid US $ 130,000.

21. It was his further case that the payments were made pursuant to a court finding of summary judgement of US $ 390, 388. 84 and Judgment on Admission of Kshs. 179, 952. 19 which Decree was not appealed.

22. Further the witness admitted that the payments were paid to persons other than the Plaintiffs. He also stated that he knew there was a balance of US $ 429,255. 63.

23. The witness also stated that the balance following the partial judgment being US $ 378,228. 77 was settled within paragraphs 1-52 of the statements of accounts produced in evidence and that the Plaintiffs had ordered him to pay through the recipient accounts therein.

24. In re-examination, it was his case that the total owing payments were US $ 1,183,742. 23 and the Defendant had paid over US $ 800,000 leaving only a balance of US $ 390,383. 84. It was his further case that the Plaintiffs admitted receiving the amounts except US $ 372,374 and US $ 11,164. 84.

25. The Court directed parties to file their respective written submissions, which were duly filed.

Party’s submissions 26. The defendant did not file submissions in this matter. Instead of filing submissions the defendant filed a series of Applications. The plaintiff filed submissions dated 1/8/2023.

27. The Plaintiff stated the documents and pleadings they relied on and the defence documents. They prayed for US $ 948,675. 40 together with interest from 1/10/2014.

28. They recapped the defence case, who admitted 4 out of 5 contracts. They raised 6 issues for determination. I do not need to set them out verbatim as they are just a split of the main issue, whether the defendants owe the plaintiff the balance out of 948,674. 40. in other words, what was the balance after removing US $ 570, 346. 63, the amount upon which there is a partial judgment.

29. The other issues were settled by the partial judgment and as such, though addressed in the submissions, I will not regurgitate them herein. They indicted that amounts under the contracts were

30. 238 pieces of tyres valued at US $ 72, 405 and upon which nothing has been paid. Cumulatively there were amounts of US $ 357,443. 23, US $ 610,000, 72405 and 71,489 making a total of 1,183, 742. 23 as the balance.

31. Regarding the 5th contract for supply of 1195 tyres valued at 357,443. 23, the defendant is said to have admitted the said amount. They produced a statement for US $ 357, 443. 23. it was their further case that, the court, Justice Njoki Mwangi had already determined that there were 5 commercial contracts.

32. They state that the residual suit is for US $ 360,328. 37. the pleadings lead to a sum of US $ 378,242. 37.

33. They questioned the issue raised by the defendant that there was no time stipulation on payment. It was their case, that a contract that does not fix time, means payment must be made within a reasonable time. In the case of Sai Sports Limited v Narinder Singh Roopra & 4 others [2014] eKLR, justice Fred A. Ochieng, stated as doth: -“In the absence of an agreed date, it would have been an implied term of the contract that the project ought to have been completed within reasonable time. The Defendants’ position that the contract date was ‘at large’ cannot therefore, stand. In the authority cited by the Defendants, Hudsons Building and Engineering Contracts 11th Edition Vl. Para. 9-024the learned authors said that:‘an obligation to complete within a reasonable time sounding in damages arises either because the contract is silent as to time or because the specified time has ceased to be applicable by reason of some matter for which the owner is responsible.’What amounts to reasonable time is determinable on the facts of each case, taking into account the surrounding circumstances prevailing during the period of performing the particular contract. The House of Lords in Hick v Raymond and Reid [1893] A.C. 22, said that performance within a reasonable time means that:‘… the party upon whom it is incumbent duly fulfils his obligations, notwithstanding protracted delay, so long as such delay is attributable to causes beyond his control and he has neither acted negligently nor unreasonably.’ The determination of reasonableness would include a determination of ‘what would be reasonable time for performance of the services in ordinary circumstances and then to what extent that time of performance was extended by circumstances outside their control.”

34. They stated that the defendant had not paid the balance. They stated as follows: -i.US $ 214, 405. 60 was allegedly made to Sinoven though Keiyun though swift. The said balance was not shown in the Defendant’s account at Diamond Trust Bank limited.ii.The rest of the claim was said to have been paid though the Plaintiff’s advocates. The payments were shown to be for the partial judgment only.iii.The other payments are to machinery & equipment Co. Ltd and Keyun clearing & forwarding. These are not the plaintiffs.iv.They rely on section 97 of the Evidence Act.

35. Finally, they submitted that the defendant cannot depart form their pleadings, where they stated that the defendant did not pay as it was no liable to pay.

Analysis 36. The burden of prove is on the party that stands to lose if no evidence is tendered. This will be for the plaintiff in the first instance. This is provided for in section 107 to 109 of the Evidence Act: -“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 burdenThe 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.109. Proof of particular factThe 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.”

37. In Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) (Presidential Election Petition 1 of 2017) [supra, the supreme court stated as doth: -“62. On this sole important issue, the law is clear that he who alleges must proof. The term burden of proof draws from the Latin Phrase Onus Probandi and when we talk of burden we sometimes talk of onus.63. Burden of Proof is used to mean an obligation to adduce evidence of a fact. According to Phipson on the Law of Evidence, the term ‘burden of proof’ has two distinct meanings:1. Obligation on a party to convince the tribunal on a fact; here we are talking of the obligation of a party to persuade a tribunal to come into one’s way of thinking. The persuasion would be to get the tribunal to believe whatever proposition the party is making. That proposition of fact has to be a fact in issue. One that will be critical to the party with the obligation. The penalty that one suffers if they fail to proof their burden of proof is that they will fail, they will not get whatever judgment they require and if the plaintiff they will not sustain a conviction or claim and if defendant no relief. There will be a burden to persuade on each fact and maybe the matter that you failed to persuade on is not critical to the whole matter so you can still win.2. The obligation to adduce sufficient evidence of a particular fact. The reason that one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular matter. This is the evidential burden of proof. The person that will have the legal burden of proof will almost always have the burden of adducing evidence.

38. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

39. In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR, the judges of Appeal held that:“Denning J. in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

40. The plaintiff pleaded a debt. The defendant stated that they have paid. It is the duty of a person alleging payment to proof so. Under order 2 rule 4, certain matters must be pleaded and particularized. It provides: -“matters which must be specifically pleaded(1)A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant Statute of limitation or any fact showing illegality—(a)which he alleges makes any claim or defence of the opposite party not maintainable;(b)which, if not specifically pleaded, might take the opposite party by surprise; or(c)which raises issues of fact not arising out of the preceding pleading.(2)Without prejudice to sub rule (1), a defendant to an action for the recovery of land shall plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant shall not be sufficient.”

41. This court has a simple task of determining in this case is whether there is an outstanding contract amount owed to the Plaintiffs by the Defendant. The partial judgment is not subject of this ruling. a Partial Judgment sum decreed of by Court on 8th May 2020. The partial Decree of this Court dated 8th May 2020 entered judgment for the Plaintiff against the Defendant as follows:iii.Judgement on Admission US $ 179,952. 79iv.Summary Judgment US $ 390,383. 84Total US $ 570,346. 63v.Interest at court rates of 14% per annum from 08/5/2020 till payment in full.vi.Costs of the Claim for which Judgment has been entered to be to the Plaintiff.

42. The extent to which the partial decree has been settled is not a matter to be determined in this judgment because it is subject to the execution process. However, the defendant confirmed that they were in the process of settling the partial judgment. This means that there is no danger of overpayment for monies covered under the partial judgment.

43. The court will thus deal with the unadmitted amounts and amounts incurred recently. In the Plaint dated 10th March 2015, the Plaintiffs’ total claim was US $ 948,626. 40. The difference that was not covered both by admission and summary judgment is a total of US $ 378,279. 77.

44. The first issue to note is that the defendant pleaded that he is not bound to pay. He cannot set out a different case without amendment of pleadings. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima stated as doth; -“11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

45. In the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, Malawi Supreme Court of Appeal stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled “The Present Importance of Pleadings” published in [1960] Current Legal Problems at p 174 whereof the learned author posited that: -“As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.

46. The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...”

47. Secondly, whereas the Defendant’s witness testified that the Defendant had paid monies to the Plaintiffs through third parties, there is no causal link from the plaintiffs to the third parties. The contracts did not make any reference to third parties. Any payment, to effect must be given to the debtor or his order.

48. The doctrine of privity of contracts hereby swings into play. Under this doctrine, contractual obligations bind parties and third parties are, by contrast, forbidden from deriving benefits from contracts to which they are not parties. The court thus agrees with the Plaintiffs that no amounts paid to the third parties were paid to the Plaintiffs, in the circumstances of this case.

49. The doctrine of privity of contracts has been invoked as in the case of Agricultural Finance Corporation v Lengetia Ltd [1985] KLR 765, where the Court of Appeal quoting with approval from Halsbury’s Laws of England, 3rd Edition, Volume 8, paragraph 110, Hancox, JA, reiterated that:“As a general rule a contract affects only the parties to it, it cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue upon the contract.”

50. Further, in the case of Kenya Women Finance Trust v Bernard Oyugi Jaoko & 2 others [2018] eKLR, the Court of Appeal deliberated on the doctrine of privity of contract at length and adopted the earlier position of that Court in Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & Another ([2015] eKLR) where the Court rendered itself that: -“In its classical rendering, the doctrine of privity of contract postulates that a contract cannot confer rights or impose obligations on any person other than the parties to the contract. Accordingly, a contract cannot be enforced either by or against a third party. In Dunlop Pneumatic Tyre Co Ltd V Selfridge & Co Ltd [1915] AC 847, Lord Haldane, LC rendered the principles thus: “My Lords, in the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it.”

51. The doctrine of Privity of Contract is therefore a long established part of the law of contract. It is one of the fundamental principles of the English Contract law. The essence of the Privity rule is that only the parties that actually negotiated a contract; who are privy to it, are entitled to enforce its terms. Basically, it advances that a contract cannot confer rights or impose obligations on any person other than the parties to the contract. Accordingly, a contract cannot be enforced either by or against a third party.

52. In the same spirit, in the English case of Darlington Bourough Council v Witshire Northern Ltd [1995] 1 WLR 68, Lord Steyn articulately demonstrated as follows: -“The case for recognizing a contract for the benefit of a third party is simple and straightforward. The autonomy of the will of the parties should be respected. The law of contract should give effect to the reasonable expectations of contracting parties. Principle certainly requires that a burden should not be imposed on a third party without his consent. But there is no doctrinal, logical or policy reason why the law should deny effectiveness to a contract for the benefit of a third party where that is the expressed intention of the parties. Moreover, often the parties, and particularly third parties, organize their affairs on the faith of the contract. They rely on the contract. It is therefore unjust to deny effectiveness to such a contract.”

53. In this case, no intention to involve third parties can be read expressly or by conduct in reference to the contracts between the Plaintiffs and the Defendant. The contracts were in writing. They are self-explanatory. There is no need of getting an extrinsic explanation. In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017) eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;-“Courts adopt the objective theory of contract interpretation and profess to have overriding view sometimes called Four Corners of an Instrument, which insists that a documents meaning should be derived from the document itself, without reference to anything outside of the document, extrinsic reversed…”

54. The Defendant has not specifically particularized and responded, through its pleadings to how it has settled the difference of US $ 378,279. 77 that is what remained disputed and subject to this hearing after the partial Judgment. Order 2 rule 4 of the Civil Procedure Rules provide for payment to be particularized. This was not done. In Raghbir Singh Chatte v National Bank of Kenya Limited [1996] Eklr, the Court of Appeal stated thus:“When a party in any pleading denied an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along those circumstances, but fair and substantial answer must be given.”……First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.”

55. Therefore, it follows that the Plaintiffs have the duty to prove their claim of US $ 378,279. 77 in evidence. Courts have belabored the burden and standard of proof in civil cases which I find necessary to lay down as below. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”

56. The plaintiff proved though evidence the entire corpus of documents show the entire amount claimed is unpaid. Once this was proved and partially admitted by the Defendant, the evidentially burden of proof shits to the defendant. It follows that the initial burden of proof, which the Plaintiff had shifted to the Defendant to show payment. In in the case of Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail fi no evidence at all were given as either side.”

57. This was elucidated well in the case of I also agree that the Court of Appeal’s position in Daniel Toroitich Arap Moi –vs- Mwangi Stephen Muriithi & Another [2014] eKLR espouses the correct legal position that:“It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.”

58. Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”

59. This position was well summarized by Njugi, J, as she then was, in Taidy’s Restaurant v Gerfas Otieno Sammy t/a Nyanco Investment Contractors [2019] eKLR where she reflected the proper standard of performance of contracts as follows:The plaintiff in a civil suit is required to prove his or her case on a balance of probability-see Kirugi & Anor. -vs- Kabiya & 3 others [1987] KLR 347. In the present matter, I am satisfied that the trial court properly reached the conclusion that the appellant had entered into a contract for the construction of a car park for the appellant, that the respondent had performed his part of the contract but the appellant had failed to pay the contractual sum, and it properly entered judgment for the Respondent.

60. Finally, the existence and validity of the 5 commercial contracts is not a disputed. There was no challenge to the validity. The court in its partial judgment concluded the issue of the validity of the 5 contracts. The issue relates only whether payment for the balance of US $ 378,328. 77 was paid.

61. The plaintiff in there submissions captured a sum of 380,328. 37. I cannot find it in the pleadings. If this was a subsequent payment, it ought to be declared as there is a difference of 17,914. 37 that is not claimed.

62. The duty of the court is to deal with the pleadings as they are. The parties pleadings are not binding on the court. It could be a point taken from the parties or a miscalculation. However, the evidence show that a sum of US $ 378,328. 77 is due and owing. Nothing less and nothing more. The initial amounts have already been dealt with in the partial judgment

63. Be that as it may, a perusal of the proved that the five contracts for were not honored. The payment purported to be made to strangers in not settlement of the debt herein.

64. In the circumstances, I find that, on a balance of probabilities, the Plaintiffs performed their contractual obligations and are entitled to the payments therefrom. The Plaintiffs pleaded the contract sum of US $ 1,200,825 out of which a balance of US $ 948,675. 40 was owing and due to be settled by the Defendant. Considering the partial judgement amount of US $ 570,346. 63, then it follows that the difference, being US $ 378,328. 77 is due and owing to the Plaintiffs. I therefore allow the balance of the Plaintiff’s claim for US $ 378,328. 77. it is important to note that the sum pleaded was US $ 948,675. 40, as due and owing. The plaintiff cannot amend their claim since it was one indivisible whole.

Determination 65. The upshot is that I make the following orders: -i.The partial judgment entered on 8th May 2020 for Ksh US $ 570,346. 63ii.left a sum of US $ 378,328. 77 and costs for the entire claim for final determination.iii.I enter judgment for the plaintiff against the defendant for the balance of the claim for a sum of US $ 378,328. 77iv.The plaintiff shall have costs of the Suit.v.The Plaintiffs shall be entitled to the interest at court rates on the sum of US $ 378,328. 77 from the date of filing until payment in full.vi.The Plaintiffs shall have the Costs of the suit.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS DAY OF 24TH DAY OF OCTOBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGE