Mijesh Enterprises Limited v Yobesh Onwonga Oyaro T/A Yobesh Onwonga Oyaro Supplies

iii. That the trial magistrate erred in law and fact in awarding the claimant an amount that is way above what is admitted to have been supplied as per his own pleadings. iv. That the trial magistrate erred in failing to appreciate that the Local Purchase Order (LPO) dated 13th July 2024 required the Claimant to supply 40 trips of 20 tonnes each making it a total of 80 tonnes of Hardcore at a total of Kshs 800,000/= on the one hand and another Local Purchase Order dated 24th July 2024 required the Claimant to supply 5 trips of 20 tonnes each making it a total of 100 tonnes of Hardcore stones at a total of Kshs 100,000/=. This was a total of 900 tones at a total cost of Kshs 900,000/=. v. That the trial magistrate erred in law in failing to appreciate that the Claimant stated in his testimony and pleadings that he supplied a total of 45 tonnes. vi. That the trial magistrate failed to appreciate that the Local Purchase Order being a contract, the Claimant was in total breach of the of the terms of the contract but proceeded to award him the entire amount of Kshs 900,000/= without any legal or evidential basis or justification. vii. That the trial magistrate erred in finding that the supplies were not in tandem with the terms and conditions of the LPO but proceeded to award the entire amount unjustifiably. viii. That the trial magistrate failed to appreciate that being that the claimant pleaded to have supplied a total of 45 tonnes as opposed to 900 tonnes, he is only entitled to an amount equivalent to the cost of 45 tonnes of hardcore which was Kshs 45, 000/=. 3. Reasons wherefore, the Appellant prays that the appeal be allowed, the Claimants claim be dismissed and the Appellant be awarded costs of the appeal. 4. Being a first appeal, i have a duty to appreciate the entire evidence presented before the trial court by subjecting it to a fresh exhaustive scrutiny and arrive at my own independent conclusion. I have to bear in mind that i did not have the opportunity to hear or see the witnesses and thus i must give an allowance for that. (See Selle & Another vs Associated Motor Boat Company Ltd & others [1968] 1EA 123; Peters v. Sunday Post Ltd(1958)EA 424;Mary Wanjiku Gachigi v Ruth Muthoni Kamau( Civil Appeal No. 172 of 2000.( Tunoi, Bosire & Owuor JJA);Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another Civil Appeal No. 345 of 2000.(Okubasi, Githinji & Waki JJA). 5. The Appellant herein was sued by the Respondent in the Small Claims Court vide a statement of claim dated 7th November 2024 where it was alleged that the Appellant was supplied with 45 tonnes of hardcore stones between 17th July 2024 and 25th July 2024 at Kshs 20,000/= per tonne, totaling to Kshs 900,000/=, but that it failed to pay for the said goods that were delivered to it. 6. The Appellant filed its response on 25th November 2024 stating that the hardcore stones which were to be supplied did not strictly comply with the terms and conditions stipulated in the Local Purchase Orders and thus the claim should be dismissed with costs. 7. It was the testimony of the Claimant now Respondent that he was contracted by the Appellant herein vide local purchase orders dated 13th July 2024 and 24th July 2024, to supply 40 trips and 5 trips of 20 tonnes each of hardcore stones. That the payment was Kshs 20,000/= per tonne. That it was a term of the agreement that the Respondent herein could invoice upon delivery/supply completion, inspection and satisfaction. The Respondent averred that the goods were received at the site at Ugunja ring road by one Mr. Felix Mbuya a representative of the Appellant. That the inspection was done later and that he refused to attend the same as the recipients had crushed the goods and could not reflect the original quantity.He produced P exhibit 1-7 in support of his claim. On cross examination, the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13132/eng@2025-09-24 2

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averred that upon delivery, he did not receive any protest from the Appellant or its agent named Felix and that the goods were duly supplied to the Appellant. 8. The claimant’s second witness was Victor Omondi Ochieng who stated that he is the logistics manager and that he was the one who handled the deal with one Okello who worked for the Appellant. That he visited the site and confirmed that the deliveries were duly made by the Respondent and that the Appellant should pay up therefor. On cross-examination, he stated inter alia; that he supplied 40 tonnes of hardcore stones to the Appellant between 17/7/2024 and 25/7/2024; that the deliveries were received by Felix Mbuya. 9. The Appellant through its witness Erick Akello relied on a statement dated 25/11/2024 as well as its list of documents which were produced as exhibits R1-11. It was his evidence that a joint inspection was proposed but the Respondent skipped it. That the goods supplied did not meet the quantity and specifications of the LPO. That the Respondent was invited vide a letter dated 20/8/2024 for the inspection scheduled for 27/8/2024. On cross-examination, he stated inter alia; that on inspection they were to find out and ascertain the deliveries but that he did not have the report on the joint inspection; that there are no minutes taken over the transaction; that the Appellant disowned all the deliveries; that the Appellant duly inspected the materials in the absence of the Respondent; that the Appellant did not pay on time. On re-examination, he stated inter alia; that the Appellant invited the Respondent for the joint inspection but that he failed to turn up; that the Respondent requested to be paid Kshs 750, 000/= 10. The appeal was canvassed by way of submissions. The Appellant has submitted that the Respondent/ claimant breached the terms of the contract contained in the local purchase order. Learned counsel submitted that a local purchase order is a contract whose terms must strictly be complied with by the parties and that the contract terms were to the effect that ‘’the goods be invoiced upon supply completion, inspection satisfaction and be paid within 14 days upon supply, completion and invoice’’ which was not actually complied with by the 1st Respondent. It was submitted that the Respondent and his witness stated in their evidence that a supply of 40 tonnes of hardcore was first supplied and then a further 5 tonnes bringing it to 45 tonnes yet the LPO indicated that 900 tonnes were required. It was also submitted that the parties are bound by their pleadings and thus the invoices should tally with the pleadings. Learned counsel pointed out that the Respondent had earlier issued an invoice dated 23/7/24 for Kshs 800,000/ even before the supplies were made and which the 1st Respondent later indicated that it had been issued in error. It was the Appellant’s view that the 1st Respondent was out to unjustly enrich himself yet he had only supplied 45 tonnes of hardcore at the agreed price of Kshs 1000/ per ton which the Appellant is willing to pay but not the outrageous amount claimed by the 1st Respondent. 11. The Respondent on his part has submitted that they proved their claim on a balance of probability. Several authorities were relied upon including Fidelity & Commercial Bank ltd vs Kenya Garage Vehicle industries Ltd (2017) Eklr where the Court of Appeal held that: “ Courts adopt the objective theory of contract interpretation and profess to have overriding view sometimes called four corners of an instrument which insists that a document's meaning should be derived from the document itself without reference to anything outside the document, extrinsic reversed…” Reliance was also placed in the case of Peters Vs Sunday Post [1958] E.A 424 and Mbogo Vs Shah [1968] E.A 93 to advance the view that an appellate court must not differ with the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13132/eng@2025-09-24 3

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findings of a lower court on matters of fact and the exercise of revision must be done with caution. 12. The Respondent submits that the documents on record speak to the existence of a contract between the Appellant and the Respondent for the delivery of 900 tonnes of hard core stones at a cost of Kshs 900,000/=. It was contended that the 1st Respondent delivered the goods as per the order, invoices were raised and to date, the same are yet to be settled by the Appellant. It was the submission of the Respondent that the trial court properly analysed the matter and came up with the correct position and that the appeal should be dismissed with costs. 13. I have considered the record of appeal, rival submissions and authorities by the parties and find that the issue for determination is whether the contract between the Appellant and Respondent was fully performed by the Respondent. 14. The burden of proof in civil cases lies with the Plaintiff or the party who alleges. In the case of Anne Wambui Ndiritu Vs Joseph Kiprono Ropkoi & Another [2005] 1 E.A 334 the Court of Appeal held that the legal burden of proof lies on the party who invokes the aid of the law and substantially asserts the affirmative of the issue as provided for in sections 107, 109 and 112 of the Evidence Act. In the present case, the burden of proof lay with the Respondent to discharge and which was on a balance of probabilities. In James Muniu Mucheru v. National Bank of Kenya Ltd [2019] eKLR, the court stated as follows: “ Indeed, it is settled law that in civil cases the standard of proof is on a balance of probability. This is in effect to say that the courts will make a finding based on which party’s version of the story is more believable.” In Miller V. Minister of Pensions, [1947] ALL E.R 372, Lord Denning stated the standard of proof in the following terms: “That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in criminal cases. If the evidence is such that the tribunal can say: we think it more probable than not; the burden is discharged, but if the probabilities means a win, however narrow. A draw is not enough. So, in any case is whi9ch the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.’’ 15. 15. It is not in dispute that the Respondent was contracted to deliver 900 tonnes of hardcore stones. It is also not disputed that the said the said hardcore stones were delivered and received at site by a representative of the Appellant one Felix Mbuya. It is also not in dispute that the Appellant has contended that the Respondent did not comply with the contract specifications and therefore the claim should not stand. It is also not in dispute that the parties herein did engage in deliberations towards resolving the Respondent’s claim but did not succeed and hence the filing of the suit. 16. It is noted that the Appellant’s main contention is that the contract of supply of hardcore stones was not performed by the Respondent in accordance with the terms of the said contract. Indeed, the Respondent was to supply 900 tonnes of hardcore materials to the Appellant and that the terms and conditions were inter alia; goods to be invoiced upon supply completion; goods to be invoiced upon inspection satisfaction and goods to be paid within 14 days upon supply completion and invoiced. The claim as filed by the Respondent dated 7/11/2024 is for Ksh900,000/= which implies that each https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13132/eng@2025-09-24 4

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tonne of hardcore material was to cost Ksh1000/=. During the evidence, the Respondent and his witness appeared to indicate that they supplied 45 tonnes of hardcore whereas the documents (LPOs) indicate the deliveries were in trips to wit 40 trips and 5 trips each carrying a capacity load of 20 tonnes of hardcore. That seems to be the crux or matrix of the matter. The Appellant’s plank is that if the Respondent is to be paid, then a sum of Kshs 45,000/= would be paid by the Appellant on the basis of what is known as quantum meruit. Hence, as far as the Appellant is concerned, the Respondent’s suit ought to have been dismissed on the ground that the parties are bound by their pleadings and that the courts have no powers to rewrite contracts for parties. The Respondent on the other hand contends that he did supply the goods as per the contract and that he is entitled to payment thereof. 17. It is settled law that a local purchase order is a contract and its terms must be strictly complied with by the parties to the said contract. The Black’s Law Dictionary defines a Local Purchase Order as; “ A document that has been generated by the buyer in order to purchase products or property. This documents allows a transaction to occur and when accepted by the seller becomes a legal binding contract of sale.” It is also trite law that parties are bound by their pleadings and where evidence is at variance with pleadings, such evidence must be rejected. This was the finding in the case of Daniel Otieno Migore vs. South Nyanza Sugar Co. Ltd [2018] eKLR it was held; ‘’It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with pleadings. Any evidence, however strong, that tends to be at variance with pleadings must be disregarded. That settled position was also made by the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji JSC expressed himself thus on the importance and place of pleadings as follows; …it is now trite principle in law that parties are bound by their pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded …in fact, that parties to prepare their evidence on the issues as joined and the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.” Again, in the case of Pius Kimaiyo Langat vs. Co-operative Bank of Kenya Ltd (2017) Eklr the Court of Appeal held: “ We are alive to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties, they are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.” Also, in National Bank of Kenya Ltd vs Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A 503, (2011) eKLR the Court of Appeal held that: “ A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. 18. The foregoing decisions must be juxtaposed with the rival standpoints of the parties. It is clear that the Respondent had pleaded for a sum of Ksh900,000/= which was based on the Respondent’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13132/eng@2025-09-24 5

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supply of 900 tonnes of hardcore stones to the Appellant. The Appellant confirmed that indeed they had given the Respondent a contract for supply of the said items. During the testimony of the Respondent and the presentation of his documents in support of his claim, there arose a question as to whether the Respondent supplied 900 tonnes of hardcore or 45 tonnes. The invoices indicated a claim for Ksh800,000/= plus another Ksh100,000/= all totaling to Ksh900,000/=. The Appellant in addition to denying the alleged supply, presented documents which include letters dated 13/8/2024, 15/8/2024, 20/8/2024, 5/9/2024 and 24/9/2024 as well as minutes of the Appellant’s Board dated 10/9/2024. The Appellant’s documents aforesaid seem to discredit its claim that it did not receive the goods from the Respondent. From these documents, it is clear that the Appellant together with its management sat and deliberated upon the Respondent’s claim and in fact engaged the services of professional engineers who confirmed that the hardcore that had been supplied by the Respondent and already used up in making the road was to the tune of about 600 tonnes of hardcore which translates to about Kshs600,000/=. The documents further indicate that discussions were held between the Appellant and the Respondent and that an offer of Kshs 750,000/= was made to the Respondent. From these documents, it is clear that the conduct of the Appellant leaves no doubt that indeed it had received the supply of hardcore from the Respondent and that the documents presented by the Respondent confirms the same. The Respondent and his witness stated that the goods were received by the Appellant’s agent at the site by one Felix Mbuya. It is instructive that the Appellant did not challenge or deny the role of the said Felix Mbuya. Whereas the Appellant wishes this court not to interfere with the contract, the conduct of the Appellant leaves no doubt that indeed it had admitted being indebted to the Respondent for goods supplied. It is preposterous for the Appellant to deny the Respondent’s claim yet it had initiated its own investigations by use of professional engineers and established that indeed the hardcore had been supplied and used up on the road. Further, the Appellant’s claim that the Respondent refused to participate in the inspection of the supplied goods must be rejected on the ground that at the time the hardcore had already been crushed and used up on the road and thus there was nothing to inspect. It is instructive that in all the deliveries, the Appellant or its agents did not reject the goods and sent them back to the Respondent. The Appellant’s conduct in accepting the goods and proceeding to use them on the road left no doubt that it was satisfied with the goods. At no time did the Appellant indicate to the Respondent that it was not satisfied with the goods. The Appellant having accepted the goods and used them cannot now turn around and put road blocks against the Respondent and seek to rely on technicalities with a view to avoiding payment. As the Appellant’s professional engineers had assessed the tonnage of the hardcore to 600, then it is highly likely that the Respondent did supply the right quantity of 900 tonnes as per the contract and that the difference could be due to wastage/spillage during the crushing and laying of the hardcore on the road and further that some of the hardcore stones had already been crushed beneath the road surface. Indeed, the figures by the Appellant’s engineers were estimates. I find that the Respondent’s claim that he had supplied 900 tonnes of hardcore stones to be believable and that the finding by the trial court was therefore quite sound. 19. From an analysis of the entire evidence, it is my finding that it was upon the Appellant to ensure that the goods were inspected immediately upon delivery before signing any delivery notes as seen in the exhibits. It likewise behooved upon the Appellant to return the goods back immediately it found that the quantity did not match up with what was ordered or as per the agreed sample. The Appellant having failed to do so is estopped from denying the Respondent the fruits of his labour. As noted in the foregoing paragraphs, the Appellant used up the hardcore stones on the road and that its engineers confirmed the same when they came up with a rough estimate of 600 tonnes. It is therefore quite clear that the Respondent did supply the Appellant with the hardcore stones as per the LPO. I find that the trial court took into consideration all the relevant evidence and factors and came up with the correct https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13132/eng@2025-09-24 6

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finding. Indeed, the Respondent proved his case on a balance of probability against the Appellant and was thus entitled to payment. 16. In the result, it is my finding that the Appellant’s appeal is devoid of any merit. The same is dismissed with costs to the Respondent. Orders accordingly. DATED AND DELIVERED AT SIAYA THIS 24TH DAY OF SEPTEMBER 2025 D.KEMEI JUDGE In the presence of: Okanda………for Appellant M/s Onsongo………………for Respondent Kimaiyo………………….Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13132/eng@2025-09-24 7

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