Daniel Waithanji Mwangi (suing As The Administrator of The Estate of Joseph Kanyongo - Deceased) v Brightstone Holdings Limited & 1 other

unverified signatures, and were not supported by Local Purchase Orders (LPOs) or acknowledgments. The court consequently dismissed the suit. 6. Dissatisfied with that decision, the Appellant lodged this appeal raising a total of ten (10) grounds of appeal, which can be summarized that the trial court erred in law and fact by: i. Failing to appreciate that the Appellant had proved his case on a balance of probabilities; ii. Misapplying the burden of proof; and iii. Failing to consider the totality of the documentary evidence, including invoices and delivery notes, tendered by the Appellant. 7. Based on the above, the Appellant urged this court to set aside the impugned judgment and substitute it with one allowing his claim as prayed in the Plaint. 8. The Respondents oppose the appeal, contending that the Appellant failed to adduce sufficient and credible evidence to prove that any goods were delivered to them or that any debt remains outstanding. 9. The Appeal was canvassed by way of written submissions. The Appellant, through the law firm of Maranga Nyang’ute & Co. Advocates, filed their submissions dated 4th April 2025, whereas the Respondents, through the law firm of Muchemi % Co. Advocates, filed theirs dated 23rd May 2025. Appellant’s Submissions 10. The Appellant submits that the trial court misdirected itself in failing to find that the invoices and delivery notes produced sufficiently proved that the deceased supplied goods to the 1st Respondent. It was argued by Counsel that the Respondents did not rebut this evidence nor adduce any contrary records. 11. Relying on Sections 107–109 of the Evidence Act, Counsel contended that the burden of proof shifted to the Respondents once the Appellant produced documentary evidence of delivery. The Appellant further invoked the principles in E.P. Communications Ltd v East Africa Courier Services Ltd [2019] eKLR, to urge that courts should consider documentary evidence such as delivery notes and invoices as prima facie proof of business transactions. 12. According to the Appellant, the trial magistrate erred in law and in fact by holding that the invoices adduced had to bear a revenue stamp and be stamped by the receiver of the payment before they could be admitted into evidence. The Respondents asserted that invoices only Respondents’ Submissions 13. The Respondents submit that the Appellant bore the primary burden of proving that the goods were indeed delivered and remained unpaid for. They contend that the documents produced were unauthenticated, unstamped, and bore differing and unexplained signatures. 14. Counsel relied on Pramukh Cash & Carry Limited v Charles Ojwang Milamba t/a Milamba Stores [2024] eKLR, where the Court held that a claimant in a sale of goods claim must produce both LPOs and signed delivery notes to prove supply of goods, and that invoices alone, being mere demands for payment, are insufficient. 15. They further argued that the burden of proof never shifted to the Respondents since the Appellant failed to establish a prima facie case. The Respondents, therefore, urged this Court to dismiss the appeal with costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16488/eng@2025-10-27 2

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Analysis and Determination 16. I have perused and carefully evaluated the contents of the pleadings, judgment, and grounds of appeal, submissions, and the authorities cited. This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, reevaluate and analyze it and come to its own conclusion. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and should therefore make an allowance for that. This duty was well stated in Selle & Another v Associated Motor Boat Co Ltd & Others (1968) EA 123 in the following terms: “ I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by 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 demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif v Ali Mohamed Sholan (1955), 22 EACA 270).” 17. The Court of Appeal for East Africa took the same position in Peters v Sunday Post Limited [1958] EA 424 where Sir Kenneth O’Connor stated as follows: “ It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.” 18. The discretion of this court to interfere with the determination of the trial court also exercising its discretion should be exercised within the confines of the principles set out by Sir Clement De Lestang, VP in Mbogo v Shah 1968 EA 93, where he held as follows: “ I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters which it should not have acted or it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 19. From the parties’ submissions, I find that the sole issue for determination is: Whether the Appellant proved his case on a balance of probabilities before the trial court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16488/eng@2025-10-27 3

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20. The law on the burden of proof is found under section 107 Section 107(1) of the Evidence Act (Cap 80, Laws of Kenya) provides that: “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 21. Section 109 further provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. 22. The standard of proof in civil matters is on a balance of probabilities, meaning that the court must be satisfied that the facts asserted are more probable than not—see William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR. 23. In Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] KECA 616 (KLR), the Court of Appeal, referring to Denning J. in Miller v Minister of Pensions [1947] 2 ALL ER 372 , stated as follows on the burden of proof:“ That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. 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 are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which 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.” 24. Thus, the Appellant bore the initial burden of proving that the goods were delivered to the Respondents and that payment was not made. Only upon discharging that burden would the evidential burden shift to the Respondents. 25. The record shows that the Appellant relied on a set of invoices and delivery notes to prove the supply of goods. However, the trial court observed that the delivery notes were not stamped by the Respondents, and the signatures thereon were neither identified nor authenticated. 26. No witness was called from the Respondents’ company to confirm receipt of goods, nor were any LPOs or acknowledgment receipts tendered to show that the Respondents had ordered the goods in question. 27. The Appellant, as the party alleging delivery, was under an obligation to link the documents produced to the Respondents through credible testimony or confirmation of receipt. In the absence of such evidence, the documents remained self-serving and of limited probative value. 28. The Court in E.P. Communications Limited v East Africa Courier Services Limited [2019] eKLR emphasized that “civil cases are decided on proven facts and the law applied to those facts.” 29. Similarly, in Pramukh Cash & Carry Limited v Charles Ojwang Milamba t/a Milamba Stores [2024] eKLR, it was held that invoices are merely demands for payment and, without corresponding delivery notes or acknowledgment, cannot by themselves prove supply of goods. 30. This Court agrees with the trial magistrate that the Appellant failed to tender sufficient evidence to demonstrate delivery of goods or establish the existence of an outstanding debt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16488/eng@2025-10-27 4

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31. Accordingly, I find no merit in the appeal, and the same is hereby dismissed with costs to the Respondent. 32. It is so ordered. SIGNED, DATED, AND DELIVERED IN VIRTUAL COURT THIS 27TH OCTOBER 2025 ADO MOSES JUDGE In the presence of: C/A – Moses https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16488/eng@2025-10-27 5

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