https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8723

World Boots Ltd v Ngotoku t/a Smartshoe (Civil Appeal E038 of 2025) [2026] KEHC 8723 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8723 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E038 of 2025 KL Kandet, J June 19, 2026 Between World Boots Limited Appellant and Geoffrey Ngotoku t/a Smartshoe Respondent (Being an appeal from the Judgment of the Hon. Adjudicator/Resident Magistrate J.K. Tawai (Ms.) in Ruiru SCCCOMM No. E480 of 2024 delivered on 3rd October 20th September,2024) Judgment 1.This is an appeal against the judgment of the Honourable J.K. Tawai, Resident Magistrate/Adjudicator, delivered on 3rd October 2024. In that judgment, the trial court dismissed the Appellant’s claim for Kshs.135,099.99 being the price of goods (footwear) sold and delivered to the Respondent. Background and Pleadings: 2.By a Statement of Claim dated 28th June 2024, the Appellant sought judgment against the Respondent for Kshs.135,099.99, costs, and collection charges. The Appellant pleaded that on diverse dates between 31st December 2012 and 1st April 2017, it supplied footwear to the Respondent, who failed to pay. 3.The Respondent was served but did not enter appearance or file a defence. Consequently, the matter proceeded to formal proof. The Appellant’s witness, Patrick Wasega, adopted his witness statement and produced several documents, including a statement of account and a letter dated 19th August 2024 purportedly from the Respondent admitting the debt and proposing to pay Kshs.3,000 per month. 4.The trial court dismissed the claim, holding that the account statement alone was insufficient evidence of liability relying on Five Continents Ltd v Mpata Investments Ltd [2003] eKLR and that the letter of admission dated 19th August 2024 was not stamped as received by the Appellant’s advocates, casting doubt on its authenticity. The Appeal: 5.Being dissatisfied, the Appellant filed a Memorandum of Appeal dated 14th March 2025, raising four grounds:i.The trial magistrate erred by failing to acknowledge the letter of 19th August 2024, which was a clear and unequivocal admission of debt.ii.The trial magistrate erred in disregarding the Appellant’s witness statement.iii.The trial magistrate erred in holding that the Appellant had not proved its case, yet the Respondent had not controverted the evidence.iv.The trial magistrate ignored the Appellant’s written submissions. 6.This being a first appeal, this court has a duty to re-evaluate and reassess the evidence afresh and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. The principles guiding this Court were well settled in the case of Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123, where the court held as follows:“An appeal to this Court from the trial of the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are 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. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally." Analysis and Determination: 7.After a careful review of the record, the submissions by both parties, and the authorities cited, the single issue for determination is whether the Appellant proved its claim against the Respondent on a balance of probabilities. 8.I will address the grounds of appeal together, as they converge on the central question of proof. 9.The Appellant placed great reliance on a hand-written letter 19th August 2024 (page 20 of the Record) which states: "Here is to admit that I Mr. Geoffrey Ngotoku (Smart shoe) owes Worldboots Co. a debt of Ksh135,099.99 and I am willing to pay 3000 per month starting from 5th November 2024..." 10.The trial court doubted the letter because it was not stamped as received by the Appellant’s advocates. The Respondent, in its submissions, argues that its authenticity was not proved, as there was no evidence that the signature or telephone number belonged to the Respondent. 11.I have considered this issue. Even if the letter were admitted in evidence, it is not an unequivocal admission of liability that would obviate the need for a trial. The letter is a proposal for an instalment payment plan. It is an offer made by a person who, by the very act of proposing a payment plan, acknowledges a debt. However, the legal issue is not merely the existence of the letter, but whether the Appellant proved the underlying contract of sale of goods. An admission of a debt does not relieve a claimant from proving the facts that gave rise to that debt, especially in a formal proof where the Respondent is absent. The letter could have been a proposal to settle a disputed claim. However, I find that in the unique circumstances of this case, where the Respondent failed to defend, the letter provides strong corroborative evidence. 12.It is trite law that even where a defendant fails to enter appearance or file a defence, the claimant is not automatically entitled to judgment. The claimant must still prove its case on a balance of probabilities. The burden of proof remains on the claimant under Section 107 of the Evidence Act (Cap 80). The trial court correctly stated this principle. However, the standard of proof in a formal proof is not as stringent as in a fully contested hearing. The claimant must present credible evidence that is not obviously flawed or contradictory. The absence of a defence means the claimant’s uncontroverted evidence ought to be accepted unless it is manifestly incredible or unreliable. 13.The Appellant’s case was that it supplied footwear on credit. To prove this, it adduced:i.A witness statement from its salesman, Patrick Wasega, who testified that goods were supplied.ii.A statement of account dated 7th February 2024 showing the debt.iii.A demand letter.iv.The letter of 19th August 2024. 14.The trial court dismissed the account statement as having no evidential value, citing Five Continents Ltd v Mpata Investments Ltd [2003] eKLR. In that case, the Court of Appeal held that an accounts analysis prepared by the plaintiff for the purpose of the suit is not itself a book of account regularly kept in the course of business. While that is a correct statement of law, it does not mean a statement of account is never admissible. Under Section 34 of the Evidence Act, entries in books of account regularly kept in the course of business are admissible. The trial court did not investigate whether the statement was derived from such books. More critically, the trial court completely overlooked the letter of 19th August 2024. Even if the account statement had no evidential value on its own, the letter from the Respondent expressly admitting the debt of Kshs.135,099.99 provides powerful corroboration of the Appellant’s case. 15.The trial court erred by focusing narrowly on the lack of a receipt stamp on the letter. The letter was produced as an exhibit. Its authenticity could have been tested, but the Respondent chose not to participate. In the absence of a defence or cross-examination, the letter remained uncontroverted. The trial court should have admitted the letter and given it due weight as an acknowledgement of debt. 16.Furthermore, the trial court misdirected itself by demanding the same level of proof as in a fully contested hearing. In a formal proof where the defendant is absent, the claimant’s evidence, if credible and consistent, should be accepted. The witness gave oral testimony. The letter was produced. That evidence, on a balance of probabilities, established that the Respondent received goods and failed to pay. 17.The grounds of appeal therefore succeed. The trial magistrate erred in law and fact by:i.Failing to give proper weight to the letter of admission dated 19th August 2024.ii.Dismissing the claim despite the Appellant having discharged its evidentiary burden in a formal proof. 18.The High Court in Rossely Olivia Adero Otieno & Another v Devski Steel Mills Ltd & Another [2013] KEHC 3134 (KLR) elucidated the legal consequences of a defendant’s default, stating as follows:“The law is that under Order 2 rule 11(1) of the Civil Procedure Rules in the absence of a defence, all the allegations in the plaint save for damages are admitted. … The Court of Appeal restated the law in Makala Mailu Mumende vs. Nyali Gulf & Country Club Civil Appeal No. 16 of 1989 [1991] KLR 13 in which it held that Judgement in default of appearance presupposes that there is a cause of action and that where judgement is entered in default liability is admitted and the Court must proceed to assess damages." 19.Similarly, in the case of Mariam Abdsheikh d/o Salim Abdsheikh v Charles Kennedy Wanya & another [1993] KEHC 117 (KLR), the court held that where a defendant fails to adduce any evidence in support of their assertions, the issue of liability must be resolved in favour of the plaintiff whose evidence stands totally uncontroverted. The court stated:“Therefore, in a case where the defendants have failed to adduce any evidence in support the assertion made in their pleading the issue of liability must, ipso facto, be resolved in favour of the plaintiff whose evidence stands totally uncontroverted." 20.It follows that in a formal proof hearing, the standard of proof, while still being on a balance of probabilities, is met where the claimant presents credible evidence that is not controverted by the other party. The trial court in this instance erred by subjecting the Appellant’s uncontroverted evidence to a higher degree of scrutiny than the law demands, effectively treating the matter as if the Respondent was contesting every factual assertion. Conclusion and Disposition: 21.The upshot of the foregoing is that the appeal is merited and is hereby allowed. 22.I make the following orders:i.That the judgment of the Honourable J.K. Tawai delivered on 3rd October 2024 in Ruiru SCCCMM No. E480 of 2024 is set aside in its entirety.ii.In its place, judgment is entered for the Appellant against the Respondent in the sum of Kshs.135,099.99 with interest at court rates from the date of filing the claim (22nd July 2024) until payment in full.iii.The claim for collection charges of Kshs.13,500 is dismissed as it was neither specifically proved nor shown to be a liquidated demand. 23.The Appellant is awarded the costs of the suit in the lower court and the costs of this appeal. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF JUNE, 2026 AT NAIROBI THROUGH THE MICROSOFT TEAMS PLATFORM KENNEDY KANDET JUDGE in the presence of:Waweru Mburu For The AppellantNo Appearance For The RespondentCourt Assistant: Jael Nosim