Peterson Karanja v Connect Two Four Seven Energy Limited

2. The learned Magistrate erred in law in finding that the Respondent had proved its case to the required standard. 3. The learned Magistrate erred in law in shifting the burden of proof from the Respondent to the Appellant. Duty of the Court 5. This being the first appellate court, it has duty to reevaluate the evidence and come up with its own independent finding bearing in mind that unlike the trial Court it did not have the benefit of taking evidence firsthand and observing the demeanor of the witnesses. The principles governing the first appellate court were set out Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123 where the Court stated as follows: - “…An appeal to this court from the trial court is by way of retrial and the principles upon which the 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 thought it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…” Evidence 6. CW1 Martin Mutigi Mugo, the Respondent’s manager adopted his statement dated 2/12/2024 as his evidence in chief and produced the list of documents as exhibits. He testified that, “We manage the Kerugoya station for Rubis Petrol Station. I have met the respondent. He has been my client for a long time. I have seen the response. I wish to state that this customer has a track KCC 474 M with driver Symon Mwangi and track KCQ 945 S. We have 3 types of customers, those that drive in, this particular customer buys on credit, this customer would send his driver to fuel at our station, he would sign our invoice, we give the driver an invoice that he has fuelled on credit. The customer used to fuel the tracks and come to the station and pay. He would pay through the phone and sometimes Mpesa. Most times he would come personally and pay in cash through Fortune Sacco and through Mpesa. We came to court as a last resort, one meeting was in January 2024 at his place, the customer Peterson was there, I was there, James the station manager was there and Simon Wanjue who works in the credit department. We met in the morning. He said he was waiting for his tea bonus, he would pay. He owes us. We used to communicate though phone until he stopped picking my calls. He even wanted to sell his track. We did not communicate on message. There were other tacks but those I mentioned were the main ones. There is a drive we talked to, he signed the invoices, he agreed to record a statement it was Simon Mwangi. We talked with him and he agreed but he stopped talking to us.” 7. On cross examination, he stated that, “There was an agreement on delivery of goods. It was a verbal agreement. It was not written. The terms of the agreement. Peterson would send his driver to fuel, he would compile the invoices and he would pay. That was the agreement and that is what we did for a long time. There was a time frame, he was to pay within 7 days. It was open and we could extend the time to pay. We would continue offering goods on credit without payment because the credit we are asking is not for two years, it is a customer I have dealt with since we opened the station. We operated that way for more than 3 years. It was a cordial relationship. We insisted that drivers sign the invoices. The money we are claiming is from 12th December 2023 to I believe end of December 2024. As you take the product and he would pay and we would allocate those invoices down the line, the payment was on reducing balance. We did not stop fueling until he got to his credit limit of Kshs. 500,000/=. When we got to 499,954/=. The receipts are signed. The invoice dated 23rd October no. 16510. It is not signed. A few may not have been signed. When a client comes, there could have been an oversight, we cannot claim we are 100% but most of them are signed. Invoice 16537 has a number but these are https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18161/eng@2025-11-27 2

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scanned. They have taken a lot of time. It was 65 litres of diesel. Receipt 816. If you zoom it has a car and a date and diesel and the figure. I do not know the number of receipts. I know the amount. I am aware that the receipts I gave you total the amount we are owed. I do not know that the figures are different from the amount I am asking for. I did my calculation before I sent them. I prepared a statement account by Esther. It is system generated but your client has the statement. We gave it to him. Our statements are system generated but we sign. Esther works as an accountant. We have other accountants. That particular statement was prepared by Esther. We have other accountants such as Joyce and Mercy. The accountants are in Lunga lunga square, they do not deal with clients directly. If I was to call her, she will not give important information because she deals with many documents and customers, the way the stations operate is that the manager sends documents to head office and they are the data entry point. I have called James the manager because he is the one that gets documents signed. James is a witness. The statement was sent to me. I then looked at it and sent it to my lawyer directly. We can provide a signed one if need be. Mr. Karanja has original invoices. The period is there in statement as it can show those that have been paid and those not paid. I cannot know it off head. I have not identified it this morning.” 8. In re-examination, he stated that, “Whenever a driver would fuel they would sign an invoice, the original signed invoice would go to Mr. Karanja and the signed copy would be scanned and sent to head office by James to the accountant who would key it in and the statement would be generated, Mr. Karanja would do back payment, he was not paying per invoice, we agreed Karanja had a credit limit. The invoices I filed are the ones that are in debt. The agreement was a verbal agreement between us and Mr. Robert, he would send a driver and sometimes Njeri the manager would come to witness fuelling. Orders were made verbally.” 9. CW2 James Murimi Maina, the station manager, Rubis Kerugoya adopted his statement as his evidence in chief. He testified that, “I know Peterson Karanja. He approached me and asked if I could fuel his vehicles for some time. He came to my station, I consulted Martin Mugo my director and there was a verbal agreement that he would fuel on credit and he would pay in 30 days. The vehicle were fuelled as per the statement.” 10. On cross examination, he stated that, “I am responsible for fuelling. The pump attendants fuel vehicles but I gave them permission. As Mr. Mugo has explained, Mr. Karanja would not pay and his payment was brought forward every time. It is between January 2022 and September 2024. We were waking on a reducing balance that is why we continued fuelling even though he was in debt. We maintained a credit limit of 500,000/= the number of days for payment was never specified. The statement is there, it shows Peterson Karanja fuelled vehicles.” 11. I have never purchased fuel on credit. I send the driver with cash to fuel.My phone number ends with 77. In re-examination, he stated that, “I used the word reducing balance meaning that if Karanja had 200,000/= he did not have to pay the entire 200,000/=, he could pay 120 or 80 as his credit limit was set. His balance would reduce then go upwards. I said that balances would be carried forward, meaning, if Peterson paid invoices, he never cleared his balance and the balance was brought forward.” 12. DW1 Peterson Kinyua Karanja, the Appellant herein, adopted his stated dated 13/1/2025 as his evidence in chief. He testified that, “I live in Kagumo, I am a businessman and farmer. It is not true I fuelled vehicles on credit. There is a statement of account but I have never been given the statement by the claimant. They did not notify me of it. I have never fuelled on credit with the claimant.” 13. On cross examination, he stated that, “I have never purchased fuel on credit. I send the driver with cash to fuel. My phone number ends with 77. (Referred to Mpesa statement in the list of documents https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18161/eng@2025-11-27 3

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dated 24th January 2025.) On 4th March 2023, I paid 150,000/= to the claimant. I paid Kshs. 150,000/ =. When a customer comes and pays in cash for materials and that money I pay cash. On that day I paid fuel in cash. My drivers would go and fuel and I would pay whenever a client paid me. I paid Kshs. 150,000. One vehicle cannot consume fuel for 150,000/=. The 150,000/=, I would pay for vehicles to consume fuel. In my statement I had said I had not used fuel belonging to the claimant. My statement is true. (Referred to paragraph 3 of his statement) I have never consumed fuel on credit. I would go and use the claimant’s fuel and pay with Mpesa and the vehicles would go and fuel. I have said I was paying cash and cars would go and fuel. I was not asked how I pay fuel. (Referred to the payments from Fortune Sacco) I paid through Fortune Sacco, I am the one who made the Fortune Sacco payments. I have vehicles KCQ 745 S, KCC 744 M, I do not know the drivers’ names, they are many, they come and go, I do not remember Peter Mutugi. I did not get invoices and statements from the Station. Whenever the drive fuel, we would talk and decide where he was going. I paid Kshs. 150,000/= for driver to fuel. 150,000/= was fuel for a day. It is for about a week. If a driver fuelled, he would get a receipt. The driver was given a receipt. That is how I would know the 150,000/= was utilized. They did not always give me the receipts. The driver had to tell me that he was fuelling the vehicles. If a car is going to Kiganjo, it should fuel a certain amount so I had to know the balance. I do not know if a driver would get a receipt. Sometimes he would get a receipt other times he would not get. I was not calculating off head, I knew based on the place the vehicle was going. When a driver would tell me he has consumed a certain amount, the lady who works, would say how much the vehicle would consume I would confirm based on the distance to Kiganjo. I could tell that a driver was. I have not had a meeting with them. We had a meeting. It was not a meeting, they came and found me. I cannot even know them, they said they were petrol people. It is not true that we met due to the debt, many people come to my field. I cannot tell if they came. They came to the field. They came regarding the debt. I did not say that if I am paid tea bonus I would pay the debt because I was not consuming fuel on debt. I am would send drivers to be withdrawn from what I had already paid. I have not brought a statement to show how the Kshs. 150,000/= was used. I was paying cash not debt.” 14. In re-examination, he stated that, “I have not been brought any documents. I do not know Peter Mutugi. I paid Kshs, 150,000/= it was for the vehicles that were consuming fuel. It was for 3 vehicles. I never had fuel consumed on credit.” Submissions 15. The Appellant cites Paul Mwenda v Republic [2015] KECA 100 (KLR), Stanley N Muriithi another v Bernard Munene Ithiga 2016 KECA 821 (KLR) and Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024) KESC 34 (KLR), on when an appellate court can interfere with findings of a trial court. He faults the trial court for failing to keenly analyse and evaluate the entire evidence placed before it, as a result of which it arrived at an erroneous conclusion. 16. The Respondent urges the court to ignore ground 1 of the appeal, which raises matters of facts, and cites Wanjiru v Kiilu (Civil Appeal 90 of 2023) [2024] KEHC 8881 (KLR) (19 July 2024) (Judgment), Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR, Mwita v Woodventure (K) Limited & another (Civil Appeal 58 of 2017) [2022] KECA 628 (KLR) (8 July 2022) (Judgment) and Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR. It urges that based on the evidence on record, it is more likely than not that the parties entered into the agreement and the Respondent failed to pay for fuel consumed, and cites Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR, Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another (2015] eKLR, William Kabogo Gitau v George Thuo & 2 Others [2010]1 KLE 5262 and Raila Odinga and Another v IEBC (2017) eKLR. Analysis and Determination https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18161/eng@2025-11-27 4

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17. Before delving into the merits of the appeal, the question whether this court is vested with the requisite jurisdiction to interrogate matters of fact, by dint of section 38 of the Small Claims Court Act, has been raised, by the Respondent, in his submissions. 18. The Court is guided by Stanley N Muriithi another v Bernard Munene Ithiga 2016 KECA 821 (KLR), cited by the Appellant, where the Court of Appeal held that; “ We hasten to observe, however, that failure on the part of the first appellate court to reevaluate the evidence tendered before the trial court and as a result, arriving at the wrong conclusion is a point of law. The question we must therefore answer is whether indeed the learned Judge in her duty to re-evaluate the evidence before her did reconsider all the evidence adduced before the trial court, or let some of the important evidence slip away and be left by the wayside.” 19. Similarly in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) &3 others (Amicus Curiae) [2024) KESC 34 (KLR), cited by the Appellant, the Supreme Court held as follows: “ Thus, the Court of Appeal’s jurisdiction on second appeals is limited to only matters of law and it could not interfere with the decision of the High Court on facts unless it was shown that the trial court and the first appellate court considered matters they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong in their decision when considering the evidence as a whole. In such a case, such omissions or commissions would be treated as matters of law.” 20. On the merits, the gist of this appeal is whether the Respondent proved its case on a balance of probabilities. 21. CW1 restated on cross examination that, “There was an agreement on delivery of goods. It was a verbal agreement. Peterson would send his driver to fuel, he would compile the invoices and he would pay. That was the agreement and that is what we did for a long time. There was a time frame, he was to pay within 7 days. It was open and we could extend the time to pay. We would continue offering goods on credit without payment because the credit we are asking is not for two years, it is a customer I have dealt with since we opened the station. We insisted that drivers sign the invoices. The money we are claiming is from 12th December 2023 to I believe end of December 2024. As you take the product and he would pay and we would allocate those invoices down the line, the payment was on reducing balance. We did not stop fueling until he got to his credit limit of Kshs. 500,000/=. When we got to 499,954/=.” 22. His testimony was consistent with CW2’s who stated that, “As Mr. Mugo has explained, Mr. Karanja would not pay and his payment was brought forward every time. It is between January 2022 and September 2024. We were working on a reducing balance that is why we continued fuelling even though he was in debt. We maintained a credit limit of 500,000/= the number of days for payment was never specified. The statement is there, it shows Peterson Karanja fuelled vehicles.” 23. In his defence, the Appellant vehemently denied ever taking goods from the Respondent on credit. 24. The Court notes that the exhibited invoices for Motor Vehicle Registration Nos. KCQ 745S, KCA 206W, KCC 744M and KUS 951 spanning from October 2023 to December 2023, remain unchallenged. The Appellant has not equally rebutted the presumption that the said motor vehicles were his, and this court, therefore, draws the inference that the Appellant repeatedly fueled them, on credit, at the Respondent’s petrol station bearing in mind that the burden of proof on the Respondent was on a balance of probabilities and not higher. The Respondnet’s evidence demonstrated the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18161/eng@2025-11-27 5

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relationship between the parties where with a credit limit of Ksh.500,000/- the continuing payments were allocation to defray, on a reducing balance, the debts accumulated in the course of their business relationship with a credit period of seven days which was regularly within the credit limit and the appellant was stopped from fuelling his vehicles when the limit was reached. 25. In the circumstances, this court is satisfied that the Respondent discharged that burden, and finds no justification to interfere with the trial court’s decision. Orders 26. Accordingly, for the reasons set out above, the Court finds that the appeal has no merit and it is dismissed. 27. The appellant shall pay the costs of the appeal to the respondent. Order accordingly. DATED AND DELIVERED THIS 27TH DAY OF NOVEMBER 2025. EDWARD M. MURIITHI JUDGE Appearances: Mr. Magee for the Appellant. Mr. Mugo for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18161/eng@2025-11-27 6

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