James Nyachoti Nyambaka v Francis Kirae & 1 other

the Appellant any money for work allegedly done in August 2022. The 2nd Respondent admitted that he owed the Appellant Kshs.79,000/= amount due to tippers supplied to carry out excavation on 5/8/2022 for of which he did pay Kshs.25,000/= on 8/8/2022 and Kshs.27,000/= on 16/8/2022 totalling to Kshs.52,000/= thus leaving a balance of Kshs.27,000/=. The 2nd Respondent put the Appellant to strict proof of the Claim. 4. The Parties agreed for the matter to proceed for hearing under Section 30 of the Small Claims Court Act, and the documents filed by the parties were deemed as duly produced without calling the makers. The court delivered the judgment on 30th October 2023 in which it found that the Appellant failed to prove his Claim against the Respondent on a balance of probability and further that the 1st Respondent having admitted owing a sum of Kshs.27,000/=, the court entered judgment in favour of the Appellant in the sum of Kshs.27,000/= from date of filing Claim and costs. 5. The Appellant was dissatisfied with the judgment and appealed to this Court vide a Memorandum of Appeal dated 29th November, 2023. He listed the following grounds of appeal; 6. 1. The Learned Magistrate erred in law and in fact in finding that Appellant failed to prove his case against the Respondents on a balance of probabilities against the weight of the evidence on record. 2. The Learned Magistrate erred in law and in fact in finding the 1st Respondent had admitted a sum of Kshs.27,000/= contrary to the evidence to the effect that the amount actually admitted was Kshs.37,000/=. 3. The learned trial Magistrate erred in law and in fact in finding that the 2nd Respondent had denied entering into any agreement with the Appellant while acknowledging payment for all services rendered to him without proves of such payment. 4. The Learned Magistrate erred in law and in fact in finding that the Appellant’s evidence and pleadings were shallow contrary and raising the standard of proof in respect to the Claim to above balance of probabilities. 5. The Learned Magistrate Erred in law and in fact in finding lain emphasis on procedural technicalities of the construction of the pleadings contrary the provisions of Article 159 of the Constitution. 6. The Learned Magistrate Erred in law and in fact in basing her judgment on the pleadings and submissions by the Respondents and ignoring the evidence presented by the Appellant contrary to the law thereby rendered an illegal judgment. 7. The Learned Magistrate Erred in law and in fact in basing her judgment on her personal opinion and ignoring the documentary evidence presented by the Appellant including Mpesa statements, payment receipts/invoices for fuel and whatsapp/sms messages. 8. The Learned Magistrate Erred in law and in fact in misconstruing and mis applying the import of Sections 107, 109 and 112 of evidence Act after failing to take into account evidence of the Appellant in the claim before her. 9. The Learned Magistrate erred in law and in fact in introducing extraneous matters in her judgment. The Appellant asked the court to set aside the judgment of the Honourable M. Thibaru Adjudicator/ RM in Small Claims Case No E203 of 2023. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7055/eng@2026-03-23 2

page 2 of 6

7. The Appeal was canvassed by way of written submissions. The Appellant’s Written Submissions 8. The Appellant submitted that he entered into an oral agreement with both the Respondents on 25th July 2022 for construction work near daystar – Lukenya, Machakos county which involved excavation works, dumping, backfilling of marram and compaction at a contractual amount of Kshs.507,100/=. Toward that the Appellant acknowledged receipt of Kshs.265,000/= towards to contractual amount leaving a balance of Kshs.242,100/=. That the Respondents further denied paying the Appellant a sum of Kshs.265,000/=that had been acknowledged by the Appellant in good faith. That the Appellant produced as evidence in form of Mpesa transactions confirming clearly that the amount in question was paid by both Respondents. It was submitted that the only evidence available on the issue of the amount paid to the Appellant as part payment of the contracted amount was that of the Appellant. That the first Respondent never produced any evidence to that effect. The Appellant argue that the trial magistrate failed and refused completely to consider the evidence produced by the Appellant in the case and embraced the 1st Respondent’s contradictory evidence. That the Appellant further produced evidence to confirm the demands he had made to the 1st Respondent through sms/WhatsApp communication in form of screen shorts for the balance of Kshs.242,100/= and promises made by the Respondents to pay. 9. The Appellant submitted that both in their pleadings and evidence presented to court by the Respondents they did not challenge the fact that both their names were found in the Mpesa statement of the Appellant. The question that ought to have been asked by the trial magistrate was ‘if indeed there was no contract between the Appellant and the 2nd Respondent, how did the Respondents access the Appellant’s telephone number and why were the making Mpesa payments into the Appellant’s telephone?’ 10. The Appellant submitted that the responses were contradictory and raised no defence at all to the claim and the trial magistrate erred in relying entirely on their pleadings. Reliance was placed on the same case of Malindi HCCC Civil Appeal No. 20 of 2020 Lagoon Development Limited -versus- Prime Aluminium Casements Limited. 11. The Appellant submitted that the pleadings and the evidence presented to court through his list of documents was in accordance to the requirements of the Small Causes Act and were comprehensive enough. The finding on this aspect by the learned magistrate was erroneous as the law of contract recognizes both oral and written agreements /contracts and its clear in law that if a contract is not in writing but has evidence backing it including a fact that parties have acted upon it by performing the same is oral evidence. Reference was made to the case of Nakuru HCCA No. Civil Appeal No. 57 of 2017 Patrick Njuguna Kimondo versus- Geoffrey Vamba Mbuti where the Court held as follows: “ Section 3(1) Law of Contract Act does not make all contracts void and unenforceable if they are not reduced into writing. I am of the opinion that oral agreements supported by credible evidence can be and are enforceable. All what the law requires is that certain contracts be in writing – Section (3) (3) short of that, it would be a travesty of justice as most people either knowingly or otherwise transact their businesses upon oral agreements.” 12. It was submitted that in the instant case there was overwhelming evidence presented by the Appellant to the effect that the parties had already acted upon the said contract by the Appellant performing his part of the contract and the Respondents making part payment of the contractual amount through Mpesa statement clearly indicating the names of both Respondents as the payees /depositors. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7055/eng@2026-03-23 3

page 3 of 6

Therefore the trial magistrate erred in rendering a judgment based on factors of personal nature and relying on the respondent’s submissions other than evidence and pleadings , challenging the amount received and acknowledged by the Appellant as part payment of the contractual and generally disregarding evidence tendered by the Appellant and adopting the Respondent’s submissions in her judgment and finding erroneously that the Appellant had failed to prove a case for on a balance of probabilities . 13. The Appellant invited the court to find that contrary to the finding by the trial magistrate, the Appellant had proved his case on a balance of probabilities and urged the Court to allow the Appeal , set aside the judgment entered in the subordinate Court on30th October 2023 and substitute the same with a judgment allowing the Appellant’s of claim dated 13th May 2023 for (Kshs.242,000/= ) plus costs of the subordinate court and of this Appeal and Interest at Court rates. Respondent’s Written Submissions 14. The Respondent submitted that on the onset, the Appellant has been wobbling on whether the Agreement dated 25th July 2022 was written or oral. Secondly, he has avoided to state whether he rendered services to the Respondents individually or as partners. Lastly, he failed to demonstrate by evidence how much each Respondent owes him and what services he provided to each. Instead, he is shifting blame and burden of proof to the Respondents. That the Respondents have no role to prove figures merely thrown out and not backed by evidence. The Respondent relied on the case of Attorney General -vs- Kabuito Contractors Ltd (Civil Appea1) 638 of2019) 2023 KECA 230 (KLR) (3 March 2023) Judgement. The Court of Appeal observed as follows: “ The party seeking to enforce an oral agreement has the difficult task of proving the terms of the agreement as well as the existence of the verbal Agreement. Awritten agreement is itself a proof that there was an agreement, but an oral agreement is merely a verbal communication of proposal and acceptance which is difficult to prove in future if any dispute arises. The burden of proof totally lies on the person who is claiming the right to prove the existence of an oral.” Analysis and Determination 15. The law on appeals from decisions and orders of the Small Claims Court is firmly set out. An appeal from the Small Claims Court is on issues of law only. This is pursuant to Section 38 of the Small Claims Court Act. The Section provides that: 1. A person aggrieved by the decision or an order of the court may appeal against the decision or order to the High Court on matters of law. 2) An appeal from any decision or order referred to in Subsection (1) shall be final. See the case of Mwangi v Kihiu (Civil Appeal 16 of 2023) [2023] KEHC 18643 (KLR) (28 April 2023) (Judgment). 16. I have carefully considered the record, the grounds of appeal and submissions by both Advocates for the Parties. I am of the view that the sole pertinent issue for determination is whether the Appellant proved his claim for Kshs.242,100/= on a balance of probabilities wherefore his appeal herein ought to be allowed. 17. A cursory perusal at the Appellant’s Statement of Claim dated 12th May 2023 reveals that the Appellant sued the Respondents at the Machakos Small Claims Court in SCCCOMM/E0203/2023 seeking judgment in the sum of Kshs.242,100/= plus costs of the claim and interest. The Appellant alleged https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7055/eng@2026-03-23 4

page 4 of 6

that on 25th July 2022, he was contracted to do a construction work near daystar-Lukenya, Machakos County. The work included excavation works, Dumping, Backfilling of marram and compaction for an agreement of Kshs.507,100/=. The Appellant was paid Kshs.265,000/= and a balance of Kshs.242,100/= remained and which the Respondents failed to settle even after several approaches by the Appellant. The Appellant averred that he hired several tippers to pour aggregates on site, wheel loaders and plant rollers and he set out the work record. 18. Having analysed the above and taking into consideration the fact that the Parties did not tender viva vorce evidence and hence there was no room for cross-examination, I make the several observations. 19. First, the Appellant does not expound no how the purported contract dated 25th July 2022 was entered into; whether the same was written or oral. The Appellant submitted that he entered into an oral agreement with both the Respondents on 25th July 2022, but again this does not clarify what part of the oral contract each of the Respondents made and how the payments were to be made and by which of the Respondent. The Appellant cannot now state in his submissions to this appeal that the agreement was oral when he failed to plead the same in his Statement of Claim. It is trite law that submissions cannot take the place of pleadings or evidence. InDaniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR: “ Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented” 20. Secondly, the Appellant did not endeavour to tender evidence of the completed works herein for example photographs or completion certificates or call any of the people who were working with him to record and file witness statements in support of the Appellant’s Claim. 21. Thirdly, in the instant case the Appellant shifted the burden of proof of his Claim on the Respondents by expecting them to prove what work if any the Appellant did for each of them and how much was paid based on the amounts pleaded by the Appellant. 22. The Appellant by failing to plead whether his purported contract with the Respondents was either written or oral and the terms thereof left the trial court guessing what exactly happened between the Appellant and the Respondents in the absence of sufficient evidence to support the same. 23. Oral contracts are harder to prove. An oral contract is not enforceable unless it is provable in Court. See of Attorney General -vs- Kabuito Contractors Ltd (Supra). 24. In his Memorandums of Appeal dated 29th November, 2023, the Appellant contend that the Learned Adjudicator erred in "law and fact" in entirely dismissing the Appellant’s Claim and arriving at findings that the Appellant had not proved his case on a balance of probabilities. 25. I must say I am unable to pick out any point of law to be considered and determine in this appeal. All that the Appellant raise in the grounds of appeal revolves around the purported contract which as already found was not proved by the Appellant before the trial court and if this court were to consider the same, it will be delving into matters of fact. In short, the present Appeal invite this Court to reevaluate the trial evidence, contrary to Section 38 of the Small Claims Court Act and to make contrary findings thereon. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7055/eng@2026-03-23 5

page 5 of 6

26. Accordingly, this court finds the appeal to be lacking in merit and the same is dismissed with costs to the Respondents assessed at Kshs.40,000/=. JUDGEMENT WRITTEN, SIGNED & DATED AT MACHAKOS THIS 23RD MARCH 2026 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 23RD MARCH 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7055/eng@2026-03-23 6

page 6 of 6