Docks Supplies & Company Limited v Jacob Mbithi Muinde

failure to pay was malicious, to which the appellant was pleading innocence, on the argument that it was not paid by the Nairobi City County Government, hence it had no money to pay the respondent. It was concluded that there was no evidence of an agreement that the respondent was to be paid after the appellant had been paid by the Nairobi City County Government. 4. The appellant was aggrieved, hence the instant appeal. The grounds, in the memorandum of appeal, dated 25th October 2022, revolve around the respondent not having proved his case to the required standard; the trial court failing to appreciate the law, evaluate the pleadings and evidence, and coming to the wrong conclusions; the trial court failing to appreciate that the contract was verbal, and the key term was that the respondent was to be paid, after the respondent had been paid by the Nairobi City County Government; the trial court failed to find that the evidence adduced by the respondent varied with its pleadings; and the trial court failed to attach any weight to the evidence of the appellant and its witnesses. 5. Directions, on the disposal of the appeal, were given, on 7th May 2025, for canvassing by way of written submissions. 6. I have seen, read and considered written submissions by the appellant, but none were filed by the respondent. It is submitted that the documents attached as evidence by the respondent indicated that payment was to be effected after the Nairobi City County Government paid the appellant, and that the respondent did not adduce evidence to demonstrate that he disagreed with that. It is further submitted that the appellant had paid Kshs. 163,000.00 to the respondent, despite the appellant not being paid by the Nairobi City County Government. There is also submission that no evidence was adduced of fraudulent misrepresentation. Dickson Mwangu Ndeva vs. Christopher Kisalu Ndeva Kitui HCCA No. 241 of 2015 (Limo, J) and Vineyard Holdings Limited vs. Sanja Construction Limited & another Narok HCCA No. 25 of 2018 (Gikonyo, J) are cited. 7. There was no dispute that the parties had between them the contract alleged in the pleadings, and that the services contracted for were in fact rendered. The only dispute was about payment for the said services. The respondent contended that he was never paid for the services rendered, something conceded by the appellant, save that it claimed to have had part paid. The only other dispute was on the amount agreed as the daily fee for the service. According to the respondent it was Kshs. 27,000.00, while the appellant pleaded that it was Kshs. 25,000.00. A related area of dispute is that the money was payable only after the appellant, as the main contractor, had been paid by the Nairobi City County Government. 8. The trial court had the benefit of seeing and hearing the witnesses presented by both sides. In the end, it believed the respondent, with respect to the agreed daily fee of Kshs. 27,000.00 and the fact of the non-payment of what was outstanding for the entire services rendered. I would have no reason to come to a different conclusion, given that the contract, as pleaded by both sides, was oral or verbal. 9. On when the payment was to be made, I again reiterate that the contract was verbal. There was no consensus that that was to be the case. It was the appellant who raised that in its defence statement. There was a duty on its part to adduce evidence to support that contention, for he who alleges proves. None of the witnesses presented by the appellant testified on that allegation. Only the witness for the respondent mentioned it in cross-examination, stating that the appellant did not allude to payment being only effected after the appellant had been paid by the Nairobi City County Government. The appellant did not, therefore, adduce evidence to establish that allegation. 10. I note that the appellant, in its written submissions, points to material that had been filed by the respondent at the trial court, which, according to it, alluded to such an understanding. I have looked at that material. It was produced as exhibits. I see nothing in that material, taking the form of WhatsApp https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13834/eng@2025-10-03 2

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messages, which point to any form of agreement between the 2 parties, that payment would be effected only upon the appellant being paid by the Nairobi City County Government. 11. On how the trial court handled the matter, in terms of considering the evidence adduced by the parties, I have read and re-read the same, and I am satisfied that the trial court considered everything that placed before it, to come to the conclusions that it came to. 12. I do not find any basis, therefore, upon which I can conclude that the appeal herein has merit. I hereby dismiss it. The respondent shall have the costs thereof. Orders accordingly. DELIVERED VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA, THIS 3RD DAY OF OCTOBER 2025. W MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant, Busia. Ms. Carolyne Oyuse, Court Assistant, Milimani, Nairobi. Advocates Mr. Okondo, instructed by JA Guserwa & Company, the Advocates for the appellant. Mr. Ojwang, instructed by Ochich TLO & Associates, the Advocates for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13834/eng@2025-10-03 3

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