Kitui Flour Mills Limited v New Generation Self Service Store Limited & 1 other

4. The Plaintiff’s claim is for an order directing the Defendants to reconstitute the List of Creditors and ensure a proper and equitable and/or pro-rated application of funds realized from the liquidation of the 1st Defendant’s assets by the 2nd Defendant and ensure that the Plaintiff’s claim herein is settled in full. 5. The Plaintiff further prayed for judgment against the Defendants jointly and/or severally for a sum of Kshs. 103,537,292, costs of and incidental to this suit, and interest on the sum and cost at 14% p.a from the date of filing suit until full payment thereof. 6. The Defendants were served, they entered appearance and filed their Statement of Defence under protest dated 09/10/2023. The Defendants denied allegations in the Amended Plaint and prayed that the suit against them be dismissed with costs. 7. The matter came up for hearing on 30/04/2025 and the Defendants having been served with the hearing notice but absent, the matter proceeded to hearing as scheduled. Prior to the hearing, the counsel for the 2nd Defendant had filed an application dated 26/03/2025 seeking to have the 2nd Defendant stuck out from the proceedings. The Plaintiff conceded to the application and there was no objection by the 1st Defendant. That application was allowed with n orders as to costs. 8. The Plaintiff’s witness, Anwar Ahmed Abeid (PW1), adopted his statement dated 25/02/2022 as evidence-in-chief. Documents in his List of Documents dated 25/02/2022 as were produced as exhibits 1-131. The Plaintiff closed its case, and the defence case was deemed as closed. 9. The Plaintiff filed its submissions submitting that the claim as presented is unchallenged and uncontroverted. The Plaintiff therefore urged the court to enter judgment in its favour as against the Defendants for the sum of Kshs. 103,537,292.00 plus costs and interest at court rates. Analysis 10. 11. This court has considered the pleadings, evidence and submissions on record. The issues for determination are: a. Whether the Plaintiff has proved its case on a balance of probabilities b. What orders on costs should issue Even though the defence did not adduce evidence, the Plaintiff has the onus of proving its case. Section 107, 108 and 109 of the Evidence Act is the starting point. It provides thus: 107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies in that person. 108. The proof a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. 109. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19616/eng@2025-11-13 2

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12. It is the duty of the Plaintiff to present his evidence in support of his averments in his pleadings. In CMC Aviation Ltd v Crusair Ltd (No. 1) [1978] KLR 103; [1976 – 80] 1KLR 835, Madan, J (as he then was) expressed himself as follows: “ …Pleadings contain the averments of the parties concerned. Until they are proved or disproved, or there is an admission of them or any of them, by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation. Until their truth has been established or otherwise, they remain un-proven. Averments in no way satisfy, for example, the definition of “evidence” as anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that it is truth…” 13. It was the Plaintiff’s case that about the years 2021 and 2022, the Plaintiff duly supplied and delivered to the 1st Defendant assorted maize and wheat products amounting to Kshs. 103,537,292.00, and that due to their long-standing business relationship, the goods were supplied on credit terms on the promise of a settlement thereof within reasonable time. 14. According to the Plaintiff’s witness, various demands were issued for the 1st Defendant to settle the outstanding sum but the same is yet to be settled hence necessitating the filing of this suit. Delivery notes and invoices were produced as exhibits to prove that indeed the assorted maize and wheat products were delivered to the Defendant as requested. 15. Even though the 1st Defendant had filed a Statement of Defence dated 18/03/2022, denying the allegations by the Plaintiff. The 1st Defendant stated that it would subject the Plaintiff’s invoices and Statement of Accounts to forensic examination and gave a notice of amending its defence. That was not don. 16. The Defendants did not adduce any evidence in support of its case. In the case of Motex Knitwear Limited v Gopitex Knitwear Mills Limited [2009] eKLR, Lesiit, J (as she then was) citing the case of Autar Singh Bahra & Another v Raju Govindjl, HCCC No. 548 of 1998 observed as follows: “ …Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail…” 17. Again, in Trust Bank Limited v Paramount Universal Bank Limited & 2 Others [2009] eKLR, it was held as follows: “ …It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings…” 18. There being no evidence by the Defendants, I find that the Plaintiff’s evidence remains unchallenged. By the production of the documents in support of its case, I find that the Plaintiff has proved its case on a balance of probabilities. I am therefore inclined to enter judgment in favour of the Plaintiff against the Defendants as prayed in the plaint. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19616/eng@2025-11-13 3

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19. On costs, it follows that the successful party gets awarded the costs of the suit. However, the award of costs being discretionary. The Defendants having been aware of this suit but opted not to participate, I find no reason to deny the Plaintiff costs of the suit. Determination 20. The upshot of the foregoing is that the court renders itself as hereunder; a. b. Judgment is hereby entered in favour of the plaintiff on the following terms; i. Kshs. 103,537,292 payable by the 1st Defendant ii. Interest of (i) above at a rate of 14% from date of filing suit. Cost of the suit payable by the 1st Defendant DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 13TH DAY OF NOVEMBER, 2025. ……………… F. WANGARI JUDGE In the presence of: Ms. Takkah Advocate for the Plaintiff N/A by the Defendants Ms. Salwa, Court Assistant NB: Copy of typed Judgment released to the registry on 25/11/2025 for uploading to the CTS. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19616/eng@2025-11-13 4

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