Techspa General Supplies Ltd v Stan Holdings Company Ltd (Civil Appeal E1064 of 2024) [2026] KEHC 8861 (KLR) (Civ) (20 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA NAIROBI** **CIVIL APPELLATE DIVISION** **HCCA NO. E1064 OF 2023** **TECHSPA GENERAL SUPPLIES LTD………………...…..APPELLANT** **VERSUS** **STAN HOLDINGS COMPANY LIMITED …………..…..RESPONDENT** *(Being an Appeal from the Judgment of Hon. G. Simatwo (Adjudicator/RM) in Milimani SCCC No. E770 of 2023 delivered on 22/9/2023)* **JUDGMENT** 1. The Respondent in this Appeal was the Claimant in Milimani SCCC No. E770 of 2023 where he was seeking a sum of Ksh. 810,000/= plus interest being a refund of a down-payment for the supply of 18,000 pieces of “**Hatari/danger”** plates. 2. The plates were to be supplied by the Appellant within 4 weeks but the Appellant failed to deliver the same. 3. The Appellant filed a response denying the claim and raised a counter-claim for a sum of Ksh. 881,999.99 being the balance of the purchase price after the Respondent failed to take possession of the plates. 4. The case proceeded by way of documents in accordance with Section 35 of the SCC Act, 2016. 1. The Respondent relied on the witness statement of one JOSEPH KARIUKI MWANGI who was a director of the Respondent’s Company. 2. The Appellant also relied on the witness statement of one WILLIAM JOSIAH who was the Managing Director of the Appellant. 3. The trial Court found that it was not denied, that there existed a contract between the parties for the supply of the plates. 4. The trial Court also found that the deposit was made of Ksh. 810,000/= and the goods were to be delivered within 4 weeks but the same was not done. 5. The trial Court entered Judgment in favour of the Respondent against the Appellant in the sum of Ksh. 810,000/= with costs and interest from the time of filing suit. 6. The Appellant has appealed against the said Judgment on the following grounds:- 7. *That the Honourable learned Magistrate erred in fact and law in holding that the Respondent had proved his case against the Appellant on a balance of probabilities to warrant an entry of judgment on account of breach of contract.* 8. *That the Honourable learned Magistrate erred in law and in fact by holding that there was a breach of contract by the Appellant and by so doing, she failed to take into consideration the fact that the Respondent was was the sole author of their own misfortune.* 9. *That the Honourable learned Magistrate erred in law by entering judgment against the Appellant without proof of defective quality of goods as alleged by the Respondent.* 10. *That the Honourable learned Magistrate erred in law and fact by totally ignoring the evidence in chief of the Appellant, as well as the Appellant’s pleadings, evidence and submissions to the effect that the produce was of merchantable quality.* 11. *That the Honourable learned Magistrate misdirected herself in law by awarding the Respondent a sum of Ksh. 810,000/= as Special damages yet the Respondent did not adduce any documentary evidence in support of that claim (the claim was not proved to the standard set out for special damages claims).* 12. The Appellant did not file any submission in this appeal on the CTS. 13. The respondent submitted that the appellant did not dispute the existence of the contract of supply of the goods entered into by both parties and additionally did not adduce any evidence to rebut the Claimant’s case save for the witness statement signed by the Appellant’s director Mr. William Kuria Josiah. 14. In support cited **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.”** 1. The respondent submitted further that the appellants assertion that they proceeded to manufacture the goods and accordingly informed the claimant who later on refused to take possession of the goods on account of them being of poor quality were neither supported by any evidence of communication between the parties nor any other statements to corroborate the same. 2. The respondent argued that based on the above the appellant did not prove their facts on a balance of probability and therefore failed to meet their evidentiary burden. 3. The respondent submitted that the issue of defectiveness of the quality of the goods was never pleaded not alleged by the respondent at trial and therefore did not fall within the ambit of the issues for determination before the court. 4. The respondent argued that its claim at trial was based on the appellant’s failure to deliver goods as agreed upon payment of 50% of the contractual sum as agreed. 5. The said goods were never delivered to the respondents and was a condition precedent to payment of the balance of the contractual sum. In support the respondent cited **MARY WAMBUI KABGUO VS. KENYA BUS SERVICES LIMITED (1997) eKLR** where the Court of Appeal stated: - **“The age-long principle of law is that he who alleges must prove. The appellant's case in the court below was that her husband was seriously injured in a road traffic accident due to negligence on the part of the respondent's driver. She did not, however, adduce evidence to establish that fact or any blame on the respondent. Her evidence on the accident was simply that she looked for her husband who had not been seen for three days and found him admitted at Kenyatta National Hospital with multiple injuries and in critical condition. She did not, of her own knowledge, know how he had sustained those injuries. The nurses who told her about the accident which gave rise to this suit were not called to testify. Nor did the appellant call any eye witness or witnesses to the accident to testify on it. She did not also call any other evidence from which some inference could be drawn as to the cause of the accident. In those circumstances, the learned trial Judge was bound to come to the conclusion he did that the appellant did not on a balance of probabilities prove her case. “** 1. The respondent on special damages argued that its claim was for a refund of Kshs. 810,000 being 50% deposit of the contractual sum as agreed by the parties for the supply of the aforementioned goods. 2. The Respondent performed its contractual obligation by payment of the said sum to the Appellant’s Bank Account via RTGS and adduced an RTGS receipt in support of its claim. 3. It was therefore the respondent’s position that they provided proof of the same and that the trial court did not misdirect itself on the same. 4. The issues for determination in this appeal are as follows; 5. **Whether the trial court erred by finding the Appellant breached the contract for supply of plates and** 6. **Whether the trial court erred by awarding the Respondent Ksh. 810,000/= as special damages.** 7. On the issue of breach, the existence of a contract and payment of the deposit were undisputed. The Appellant’s defence was that it manufactured the goods but the Respondent refused to take possession. 8. However, the Respondent’s primary claim was for a refund of the down-payment due to the Appellant’s failure to deliver within the agreed four weeks. 9. The trial court correctly found that the Appellant did not adduce sufficient evidence to prove that the goods were ready for delivery within the contractual timeline, nor did it rebut the fact that delivery was not made. 10. It is trite law that he who alleges must prove . The Appellant failed to discharge this burden. 11. Concerning the award for special damages, the Respondent sought a refund of the Ksh. 810,000/= deposit. 12. It is a settled principle of law that special damages must not only be specifically pleaded but also strictly proved . In this case, the Respondent provided an RTGS receipt as documentary evidence of the payment, which constitutes strict proof. 13. Special damages are proved by producing receipts like ETRs or other payment instruments. 14. Consequently, the trial court did not misdirect itself. The judgment of the trial court is upheld, and this appeal is dismissed with costs to the Respondent. 15. Orders to issue accordingly. 16. **Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 20th day of May, 2026.** **………….…………….** 1. **N. ONGERI** **JUDGE** Delivered in the absence of the parties.