Kithuku t/a Muki Hardware & General Works v Ngonda, Chairman & 3 others (Civil Appeal E095 of 2021) [2025] KECA 863 (KLR)
The bottom line
#The Court of Appeal dismissed a hardware trader's claim for Kshs. 412,980 because he could not explain glaring discrepancies in his own delivery documents.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant proved his case to the required standards
- 2.Whether the contract was rendered null and void on the grounds that the appellant's procurement processes were flouted
Key legal issues
#Whether the appellant proved its claim for the outstanding balance of Kshs. 412,980 on a balance of probabilities
The appeal court, re-evaluating the evidence, found the appellant failed to prove the claim: cement was under-delivered, plain rather than flowered chipboard was delivered, and cash withdrawal claims were unexplained and unsubstantiated.
The respondents alleged inflated prices and falsified deliveries. The delivery note showed 130 bags of cement delivered against 180 ordered, plain chipboard delivered against flowered chipboard ordered, and quotations contained irregular cash withdrawal entries. The appellant never rebutted or explained these discrepancies. Under sections 107, 108 and 109 of the Evidence Act, the party alleging must prove; unrebutted allegations of under-delivery and overcharging meant the claim was not proved on a balance of probabilities.
Whether the contract was null and void for breach of public procurement law
The High Court misdirected itself by determining the procurement issue, since it was never pleaded or canvassed before the trial court and was therefore not a matter for determination by the trial court or the High Court.
The Court examined the amended defence and reply to defence and found the issue of compliance with the Public Procurement and Asset Disposal Act was not raised at trial. The pleadings centred on the outstanding payment claim and whether a valid contract existed. In determining non-compliance with procurement law, the learned Judge misapprehended the pleadings and determined a matter not before the court, though the ultimate setting aside of the trial judgment was still correct.
Legal principles established
#- On a second appeal, the Court of Appeal's jurisdiction is limited to matters of law only, unless the courts below considered matters they should not have considered, failed to consider matters they should have considered, or the decision is perverse.
- A party alleging facts must prove them; the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, and an unproven or unrebutted claim cannot found judgment.
- A party who fails to rebut or explain discrepancies in its own documents (inflated quotations, under-deliveries, unexplained cash withdrawals) fails to discharge the burden of proof on a balance of probabilities.
Court orders
#- 1.The appellant's appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- Second appeal to the Court of Appeal under its appellate jurisdiction limited to matters of law (as framed at paragraph 16; no specific statutory provision is quoted)
Relief refused
#The appellant's claim for Kshs. 412,980 as balance of the purchase price
The appellant failed to prove the claim on a balance of probabilities; discrepancies in quotation, delivery notes, under-delivery and unexplained cash withdrawals were unrebutted
Reversal of the High Court's findings on procurement non-compliance as a ground for allowing the appeal
Although the High Court erred in determining the procurement issue which was not canvassed at trial, the setting aside of the trial court's judgment was nonetheless correct
Costs
The appellant's appeal is dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
on a second appeal, the court jurisdiction is limited to matters of law only, unless it is shown that the courts below-considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
the above provisions are clear that he or she who alleged must prove the facts that are alleged
it becomes patently clear that the appellant failed to prove his claim for Kshs. 412,980 on a balance of probabilities
the issue of whether the appellant complied with the Public Procurement and Asset Disposal Act was not a matter for determination by the trial court, or indeed the High Court
In sum, the appellant’s appeal is lacking in merit and is accordingly dismissed with costs to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithuku t/a Muki Hardware & General Works v Ngonda, Chairman & 3 others (Civil Appeal E095 of 2021) [2025] KECA 863 (KLR)", Case Analysis (2025). Not stated in the judgment (second appeal from the High Court at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/863/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.