https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7839

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **MACHAKOS LAW COURTS** **HCCSA NO. E005 OF 2025** **STEPHEN NGARUIYA …...................................................... APPELLANT** **-VERSUS-** **BONIFACE NGWILI …………………………………............RESPONDENT** *(Being an appeal from the judgment of Hon, B A Luova (ADJ) in Machakos SCCC NO. E594 of 2024 delivered on5/6/2025*) **JUDGMENT** 1. The appellant was the claimant in Machakos SCCC NO. E594 of 2024 where he filed an undated claim seeking Kshs. 351,700 from the respondent being the balance in respect of agreed construction of Mbooni Pride Hotel. 2. The cause of action in this case arose from an oral agreement made in June 2019 between the appellant, Stephen Ngaruiya, and the respondent, Boniface Ngwili, for the construction of Mbooni Pride Hotel. 3. The appellant claimed that the total cost of construction was Ksh 591,700, and that by January 2021, the respondent had paid only Ksh 260,000, leaving an outstanding balance of Ksh 331,700, for which he sought judgment together with costs and interest. 4. The respondent denied the claim and put the appellant to strict proof. After hearing oral evidence and considering submissions from both parties, the trial court ruled that although a valid oral contract existed between the parties, the appellant had failed to prove his claim. 5. The court noted that the appellant contradicted himself regarding whether Ksh 240,000 was paid by cash or M‑Pesa, and that while the appellant claimed M‑Pesa payments from the respondent amounting to Ksh 788,900 were for other undisclosed works, he provided no evidence of what those other works were. 6. Applying Section 107 of the Evidence Act, the court held that the burden of proof lay on the appellant, which he did not discharge. 7. Consequently, the court dismissed the claim in its entirety. No orders were made as to costs, the court having considered the parties’ long‑standing business relationship since 2019. 8. The appellant has appealed to this court against the said judgment on the following grounds; 9. ***THAT the Adjudicator erred in law by not admitting the Claimant’s evidence which was not controverted.*** 10. ***THAT the Adjudicator erred in law by ruling in favor of the Respondent against the weight of the evidence on record.*** 11. ***THAT the Adjudicator erred in law by not considering the law and principles applicable to a disputed quantum in oral contracts.*** 12. ***THAT the Adjudicator failed to consider the Appellant’s submissions and authorities on record.*** 13. ***THAT the Adjudicator failed to properly evaluate the tendered evidence which surpassed the threshold required in Civil matters.*** 14. ***THAT the judgment entered on the 5th of June 2025 was speculative, erroneous and based on irrelevant considerations***. 15. The parties filed written submissions as follows; The appellant submitted that these written submissions are filed in support of his appeal against a judgment of the Small Claims Court at Machakos delivered on 5th June 2024, which ruled in favour of the Respondent, Boniface Ngwili. 16. The Appellant contends that the trial adjudicator erred in both law and fact by failing to recognise that the Appellant’s evidence was uncontroverted. 17. The case arises from an oral agreement made in June 2019, under which the Appellant was to provide construction expertise for the Mbooni Pride Hotel, with the Respondent agreeing to pay a total of Kshs. 591,700. 18. By January 2021, the Appellant claimed that a balance of Kshs. 351,700 remained unpaid, which the Respondent acknowledged but refused to settle. 19. After filing suit in December 2024, the matter proceeded to hearing, and judgment was given against the Appellant. 20. The Appellant argues that the Respondent, despite filing a defence, failed to call any evidence to support his claim of full payment. 21. Relying on Section 107 of the Evidence Act and the case of **North End Trading Company Limited v City Council of Nairobi**, the Appellant submits that unchallenged evidence must be taken as credible and that a defence without evidentiary support cannot defeat a claimant’s case. 22. He points out that the Respondent admitted to paying through M-Pesa and cash, that there was no agreed definite fee, and that the M-Pesa statements included payments for other past projects and site workers, not solely for the hotel construction. 23. The Appellant further relies on the principle in **William Kabogo Gitau v George Thuo & 2 Others,** which holds that a civil case is proved on a balance of probabilities when a party establishes a 51% likelihood of its version of events. 24. He asks the High Court to allow the appeal, set aside the lower court’s judgment, and award him costs. 25. The respondent’s submissions oppose an appeal filed by Stephen Ngaruiya against a judgment of the Small Claims Court at Machakos. 26. The dispute arises from an oral agreement for the construction of parts of Mbooni Pride Hotel, owned by the respondent, Boniface Ngwili. 27. According to the respondent, the parties did not agree on a fixed sum of Kshs 591,700 as the appellant claimed. Instead, the appellant and his crew were to be paid weekly based on the work done and the number of crew members. 28. The respondent also asserts that he alone purchased all construction materials and that the appellant never bought any. 29. After completing the work in 2020, the appellant and his crew were fully paid and left, and no claim for further payment was made until 2024, when the appellant filed suit. 30. The respondent argues that the adjudicator did not err in law or fact, and that the appellant failed to prove his case on a balance of probabilities. 31. On the burden of proof, the submissions cite Sections 107 to 109 of Kenya’s Evidence Act and case law such as **Anne Wambui Ndiritu v Joseph Kiprono Ropkoi**, emphasizing that he who alleges must prove. The respondent contends that the appellant did not discharge this burden and was fully compensated. 32. The submissions further challenge the memorandum of appeal as repetitive and non-compliant with rules requiring concise grounds without argument or narrative, quoting several Court of Appeal decisions. 33. They also argue that submissions are not evidence and cannot cure deficiencies in proof. Regarding liability and quantum, the respondent maintains that the trial court’s finding of 70:30 liability was generous and that the award of general damages was justified based on comparable injuries. 34. The appeal is said to lack merit, and the respondent prays that it be dismissed with costs. 35. The issues for determination in this appeal are as follows; 36. ***Whether this court has the jurisdiction to hear this appeal, and*** 37. ***Whether the appellant provided enough clear evidence to prove his case.*** 38. On the first question, Section 38(1) of the Small Claims Court Act, an appeal to the High court only lies on matters of law. 39. The Small Claims Court was created to resolve minor business arguments quickly and finalise them without long legal battles. 40. Looking at the appellant's arguments, he is mostly asking this court to re-examine the facts, like who said what, and whether payments were made by cash or M-Pesa. 41. The trial court looked at the evidence and found that the appellant gave conflicting evidence about a Ksh 240,000 payment and could not explain why he received a sum of Ksh 788,900 from the respondent if he was still owed money. 42. Since these are purely factual issues and not legal, this court has no power to change the lower court's decision. 43. Even if we look at this as a question of law, the appellant still loses on the second question about proving the case. 44. Section 107 of the Kenyan Evidence Act makes it clear that if you bring someone to court, it is your duty to prove your claims. 45. The burden of proof rests on the appellant. The appellant argues that because the respondent did not bring witnesses, the court should have automatically believed the appellant's evidence. 46. The appellant admitted he received Ksh 788,900 from the respondent, which is actually much more than the Ksh 591,700 he said the whole construction job cost. 47. He claimed that the extra money was for "other hidden jobs" but never showed a single receipt, text, or document to prove those other jobs existed. 48. The appellant’s own evidence was full of contradictions and he he failed to prove that he was still owed a balance of Kshs. 351,700 . 49. In the end, the adjudicator did not err. Since there was no legal error, this appeal has no merit and it is dismissed. 50. However, since the parties in this case have done business together since 2019, each party will pay their own legal costs for this appeal. 51. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026** **ASENATH ONGERI** **JUDGE** **In the presence of** Mr Mutinda for the Appellant Mr Nguva for the Respondent Chrispine - Court Assistant