https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10002

Wincomp Services Ltd v Kurgat t/a Roshina Enterprises (Civil Appeal E104 of 2024) [2026] KEHC 10002 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10002 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal E104 of 2024 BW Murunga, J July 9, 2026 Between Wincomp Services Limited Appellant and Janet Kurgat t/a Roshina Enterprises Respondent (Being an appeal from the judgment and decree of Hon. L.B. Koech (Chief Magistrate) delivered on 20th December 2021 in the Chief Magistrate’s Court at Milimani Commercial Courts, Civil Case No. 7454 of 2014) Judgment Background 1.By a plaint dated 19th November 2014 filed in the Chief Magistrate’s Court at Milimani Commercial Courts, the Appellant (then Plaintiff) sued the Respondent (then Defendant) for Kshs. 2,495,050.00 being the price of printer cartridges said to have been supplied to the Respondent at her request between 13th December 2012 and 1st February 2013. 2.The Appellant pleaded that, upon demand, the Respondent issued three cheques of Kshs. 500,000.00 each in part payment; that she thereafter prevailed upon the Appellant not to present the cheques for reasons she did not disclose; and that she neither replaced them nor settled the account, precipitating the suit. 3.In her statement of defence dated 1st November 2017, the Respondent admitted trading with the Appellant but joined issue on the quantum. Her case, maintained in her witness statement and at the trial, was that the goods actually supplied to and received by her were worth Kshs. 1,515,200.00 only; that upon the instructions of Japheth Mukinyi Mwakavi, a director of the Appellant with whom she personally transacted, she paid Kshs. 1,500,000.00 into Kenya Commercial Bank account number 110xxxxxx51 held in the name of Mwalewa Stores, a business she associated with the said director; and that she tendered the balance of Kshs. 15,200.00, which the Appellant declined to receive. 4.At the trial the Appellant called two witnesses, among them the said Japheth Mukinyi Mwakavi, who testified pursuant to a witness summons taken out at the Respondent’s instance; the Respondent testified in her own defence. 5.By a judgment delivered on 20th December 2021, the learned trial magistrate found that the Respondent had, on a balance of probabilities, paid for the goods supplied save for the sum of Kshs. 15,200.00, entered judgment for the Appellant in that sum only, and directed each party to bear its own costs. 6.Aggrieved, the Appellant preferred the present appeal by a memorandum of appeal dated 25th January 2024, filed with the leave of this court granted in Miscellaneous Civil Application No. E302 of 2022. 7.The six grounds pleaded condense into three complaints: that the learned magistrate erred in finding that the Respondent had paid for all the goods supplied save for Kshs. 15,200.00; that she erred in law in treating payments allegedly made to Mwalewa Stores, an entity that was neither a party to the contract nor to the suit, as payments made to the Appellant; and that she misapprehended the evidence on deliveries, imported assumptions with no basis in law, and consequently disallowed a merited claim. The Appellant’s Submissions 8.In written submissions dated 14th October 2025, learned counsel for the Appellant anchored the appeal on the doctrine of privity of contract. Counsel submitted that the contract of supply subsisted exclusively between the Appellant and the Respondent; that Mwalewa Stores was a complete stranger to it; and that there was neither assignment, novation nor any written authority by which that entity could receive payment on the appellant’s behalf. 9.Reliance was placed on Texas Alarms (K) Limited v General Cargo (Transport) Limited [2023] KECA 1067 (KLR) for the proposition that only parties to a contract may benefit from or bear obligations under it, and that payment to a non-party does not discharge the debtor’s liability. 10.Counsel attacked the business-name search relied upon by the Respondent as reflecting a registration date of 10th November 2016, long after the cause of action arose, and urged that it was either forged or irrelevant; by contrast, the Appellant’s certificate of registration dated 3rd May 2006 showed Mwalewa Stores to be owned by one Mwakavi Mbuvi, a person said to be unconnected with the Appellant. The court was asked to draw an adverse inference from the Respondent’s failure to join Mwalewa Stores or to call its proprietor. 11.On quantum and the burden of proof, counsel submitted that supply was established by invoices, delivery notes and statements of account, and that the Respondent’s three cheques totalling Kshs. 1,500,000.00 were an unequivocal acknowledgment of indebtedness, citing Kenneth Mutembei t/a Markfive Suppliers & Another v Galaxy Merchants Ltd [2018] eKLR and Polythene Industries Ltd v Kilimanjaro Carvings Export Ltd [2025] KEHC 8644 (KLR). 12.It was contended that the trial court reversed the burden of proof contrary to sections 107 and 108 of the Evidence Act, reliance being placed on Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91 and Easy Coach Ltd & Another v Omondi [2023] KEHC E284 (KLR). The court was urged to allow the appeal, set aside the judgment below and enter judgment for the appellant for Kshs. 2,495,050.00 with interest and costs. The Respondent’s Submissions 13.The Respondent supported the judgment. Counsel submitted that at all material times the Respondent dealt with Japheth Mukinyi Mwakavi as the face of the Appellant; that it was he who furnished the particulars of the Mwalewa Stores account into which he directed her to pay; and that she duly paid Kshs. 500,000.00 and Kshs. 1,000,000.00 into that account well before the suit was filed. 14.Counsel relied on an official search obtained from the Registrar-General, whose response dated 25th May 2017 named the said director as the sole proprietor of Mwalewa Stores and which the Appellant never rebutted; on Ederman Company (K) Limited v Devkan Enterprises Limited [2024] (KLR) on the probative value of records from the Registrar of Companies; and on section 120 of the Evidence Act and Muri Mwaniki & Wamiti Advocates v Gateway Insurance Co Limited [2018] eKLR in support of the plea of estoppel. 15.On quantum, counsel submitted that the Respondent could be bound only by delivery notes bearing her signature; that the unsigned notes and the Appellant’s self-generated statements proved nothing, on the authority of section 37 of the Evidence Act, E.P. Communications Limited v East Africa Courier Services Limited [2019] eKLR and Five Continents Ltd v Mpata Investments Ltd [2003] eKLR; and that the Appellant’s own ledger closed at Kshs. 1,515,200.00 as at the end of December 2012, the very sum the Respondent admitted. 16.On the burden and standard of proof counsel cited Bata Brands SA & Another v Umoja Rubber Products Limited [2025] (KLR), adopting Miller v Minister of Pensions [1947] 2 All ER 372. The court was informed that the decretal balance of Kshs. 15,200.00 has since been paid, and was urged to dismiss the appeal with costs. The Issues Arising 17.This being a first appeal, the mandate of the court is well settled. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 at page 126, the Court of Appeal for East Africa stated that “…this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” The caution touching on witnesses was amplified in Peters v Sunday Post Ltd [1958] EA 424, adopting Watt v Thomas [1947] AC 484, that “…it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.” I have re-evaluated the entire record with these principles firmly in mind. 18.Upon consideration of the grounds of appeal and the rival submissions, two issues fall for determination, namely:a.Whether the appellant proved, to the required standard, supply of goods worth Kshs. 2,495,050.00; andb.Whether the payments made into the Mwalewa Stores account discharged the Respondent’s indebtedness to the Appellant. Analysis and Determination Whether the appellant proved supply of goods worth Kshs. 2,495,050.00 19.The starting point is elementary but decisive. By section 107(1) of the Evidence Act, Cap 80, whoever desires any court to give judgment as to any legal right dependent on the existence of facts which he asserts must prove that those facts exist, and by section 109 the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. 20.In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal restated 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.” It was therefore for the appellant, as the seller suing for the price, to prove delivery of goods worth the full Kshs. 2,495,050.00; that burden never shifted merely because the respondent admitted a lesser figure. 21.The delivery notes on record fall into two categories. Those bearing the Respondent’s signature she has never disowned; they support the supplies she admits. Those bearing no signature at all, or bare initials which she disputed on oath, stand on an altogether different footing. In E.P. Communications Limited v East Africa Courier Services Limited [2019] eKLR, the court observed, in words that commend themselves to me, that “…Courts of law act on hard evidence not sympathy or speculation. In the absence of a delivery note or evidence of receipt of the goods, it becomes doubtful whether the goods were delivered.” 22.The Appellant called no witness who effected the disputed deliveries, and its invoices, one of which, invoice no. 4536, was said to reflect Kshs. 2,582,600.00, a figure exceeding the entire claim, were internally inconsistent and not self-proving. 23.Nor do the Appellant’s statements of account carry it home. Section 37 of the Evidence Act provides that “entries in books of account regularly kept in the course of business are admissible whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.” 24.In Five Continents Ltd v Mpata Investments Ltd [2003] eKLR, the Court of Appeal discounted a comparable analysis, holding that “that accounts analysis was apparently prepared by the plaintiff for use in this suit. It is not itself a book of account regularly kept in the course of business… It follows that the accounts analysis on which the learned judge relied has no evidential value.” What is most telling here is that the ledger produced by the Appellant itself, through its supplementary list of documents, returned a closing balance of Kshs. 1,515,200.00 as at 30th December 2012, the precise sum the Respondent has admitted from the outset. 25.The Appellant’s strongest card was the three cheques, coupled with the holding in Kenneth Mutembei t/a Markfive Suppliers & Another v Galaxy Merchants Ltd [2018] eKLR that a party who issues cheques for goods cannot thereafter be heard to argue whether the goods were ordered and supplied. The principle is sound; its application here is double-edged. The cheques total exactly Kshs. 1,500,000.00. As an acknowledgment of indebtedness they corroborate the Respondent’s figure of Kshs. 1,515,200.00; they are wholly inconsistent with a claim of Kshs. 2,495,050.00, for a document relied upon as an admission binds only to the extent of what it admits. 26.On my own fresh evaluation of the record, therefore, the supply proved was of goods worth Kshs. 1,515,200.00, as the learned magistrate found. That finding, however, does not dispose of the appeal; the true battleground is payment, to which I now turn. Whether the payments into the Mwalewa Stores account discharged the respondent’s indebtedness 27.Counsel’s submission on privity is, as a statement of general principle, unimpeachable. A debt is discharged by payment to the creditor or to his duly authorised agent; a debtor who pays a stranger does so at his peril, and the stranger’s receipt is no discharge. That is the principle which the Court of Appeal applied in Texas Alarms (K) Limited v General Cargo (Transport) Limited [2023] KECA 1067 (KLR), and had the evidence stopped at proof that the Respondent paid an unrelated entity, this appeal would be destined to succeed. The inquiry, however, is anterior: whether, on the evidence, Mwalewa Stores was a stranger at all, or a destination for payment designated by the Appellant through its own directing mind. 28.Four strands of evidence converge. First, the Respondent swore that Japheth Mukinyi Mwakavi, the Appellant’s director with whom she personally transacted throughout, directed her to pay into the account, and she produced the bank deposit slip of 25th March 2013 for Kshs. 500,000.00 and evidence of the transfer of Kshs. 1,000,000.00 on 25th September 2013. 29.Secondly, as the learned magistrate observed, the Respondent could not plausibly have known the precise account number and account name at Kenya Commercial Bank unless those particulars were furnished to her by a person connected to the account; no innocent alternative explanation was offered. 30.Thirdly, the official search, being the Registrar-General’s response of 25th May 2017 to a paid requisition, named the said director as the proprietor of Mwalewa Stores, and the Appellant summoned no officer of the registry and produced no certified record to displace it. 31.Fourthly, the payments were made in 2013, years before suit, the conduct of a debtor settling a debt in a directed manner, not of a trader making gratuitous dispositions to a stranger. 32.The Appellant’s twin answers do not survive scrutiny. The cry of forgery, pressed only in submissions, was never pleaded. Forgery is a species of fraud, and the law on the point is inflexible. 33.In Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR, the Court of Appeal held that:“…It is a mandatory requirement of the law that any allegation of fraud must be particularised. This requirement cannot be met by a mere allegation that the registration of the suit premises in the name of the appellant was fraudulent because the appellant knew that the money had been fully repaid. The appellant had denied advancing the money, thereby denying that the suit premises had been given as security. On the other hand, the appellant had stated that the Kshs.5 million he paid the respondents was paid as consideration for purchase of the suit premises. The respondents on their part had not shown that they had repaid the so called loan and in those circumstances, the knowledge imputed to the appellant in the re-amended plaint falls by the wayside and leaves the allegation of fraud not only unsubstantiated but with no attempt to particularise it. That is contrary to rule 8 of Order 6 of the Civil Procedure Rules” 34.It is therefore a requirement in law that in a suit where allegations of fraud are made, the particulars of the fraud alleged must be stated on the face of the pleading; the acts alleged to be fraudulent must be set out, and then it should be stated that these acts were done fraudulently. 35.and in Ratilal Gordhanbhai Patel v Lalji Makanji [1957] EA 314, the predecessor court held that “allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.” Nothing of the kind was pleaded or proved. 36.As for the Appellant’s own uncertified certificate of 3rd May 2006, it names one Mwakavi Mbuvi, the very person whom the director, in his witness statement of 5th November 2020, described as his father. Taken at its highest, the Appellant’s document places the payee business within the immediate family of its own director; far from distancing the Appellant from the account, it fortifies the Respondent’s testimony that the account particulars emanated from him. Whether the differing registration dates reflect a re-registration of the business name is a question I need not resolve, for on either party’s version Mwalewa Stores was no random stranger. 37.The legal consequence follows from the ordinary law of agency. A company is an abstraction; it transacts through human agents and is bound by their acts done within actual or apparent authority. 38.In Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at page 503, Diplock LJ defined apparent authority as “a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted upon by the contractor, that the agent has authority” to act in the matter. 39.The director here was the Appellant’s face in the entire transaction: he negotiated, he supplied and, on evidence the trial court accepted, he directed the mode of payment. A debtor who pays in the manner directed by the creditor’s transacting director obtains a good discharge, and the creditor cannot afterwards disown the direction of its own agent. 40.Section 120 of the Evidence Act completes the picture: “when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” Having, through its director, represented the Mwalewa Stores account as the channel of payment, and the Respondent having parted with Kshs. 1,500,000.00 on the strength of that representation, the Appellant is estopped from denying the discharge. The surrounding conduct all points one way. The Appellant held three cheques for Kshs. 1,500,000.00 and never once presented them over the years. 41.Its own case at trial was that after January 2013 the Respondent bought further goods in cash, an improbable indulgence towards a customer supposedly owing nearly two and a half million shillings. And when suit finally came, in December 2014, the Appellant claimed the full sum without crediting a single shilling, in the teeth of payments its director’s business had received. The learned magistrate, who saw and heard the witnesses, believed the Respondent and disbelieved the director. 42.Applying Peters v Sunday Post Ltd (supra), I discern no misdirection, no overlooked circumstance and no misapprehension of the evidence that would entitle this court to disturb that assessment; my own independent re-evaluation arrives at the same destination. 43.The complaint that the Respondent ought to have joined Mwalewa Stores or called its proprietor inverts the burden. It was the Respondent who procured the director’s attendance by witness summons; it was the Appellant, if it wished to sever the connection which its own documents suggested, that could have called Mwakavi Mbuvi or an officer of the business names registry. It did neither. The invitation to draw an adverse inference against the respondent is accordingly declined. 44.In the result, the payments of Kshs. 1,500,000.00 into the designated account discharged the Respondent’s indebtedness pro tanto, leaving the admitted balance of Kshs. 15,200.00 for which the trial court entered judgment. T 45.he Respondent’s indication that she has since paid the decretal sum is a matter touching on satisfaction of the decree, not on the merits of this appeal. The learned magistrate’s disposal of the suit was, in my respectful view, unimpeachable. Disposition 46.Having re-evaluated the entire record and reconsidered the evidence for myself, I find no merit in the appeal. Costs follow the event under section 27 of the Civil Procedure Act, Cap 21, and no reason has been shown to depart from that course. Accordingly, I make the following orders:(a)The appeal is hereby dismissed in its entirety;(b)The judgment and decree of Hon. L.B. Koech (Chief Magistrate) delivered on 20th December 2021 in Milimani Commercial Courts Civil Case No. 7454 of 2014 are hereby affirmed; and(c)The costs of the appeal are awarded to the Respondent. 47.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JULY, 2026. __________________________________ BENARD WAFULA MURUNGAJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:In the presence of:B.M. Musyoki instructed for the Appellant (N/A)Ms. Kamau h/b for Muturi instructed by ABM Advocates For the RespondentKevin Babu - Court Assistant