Makali v KNUT Bungoma South Teachers Burial & Benevolence Scheme & another (Civil Case E022 of 2025) [2025] KEMC 430 (KLR)

Whereas this is a claim for a liquidated sum, this court fixed this matter for formal proof for the Plaintiff to address the court on whether the 2 nd Defendant was a proper party to this suit. Plaintiff’s Case PW1 Patrick Wafula Makali the Plaintiff herein adopted his witness statement herein as his evidence in chief. He also produced the documents in his list of documents herein as exhibits (Pexh.1 & 2). He stated that he had sued the 2 nd Defendant since the 2nd Defendant helps in managing and running the scheme, and that he also helps in processing benefits for retired teachers. ISSUES FOR DETERMINATION The only issues for determination are whether the 2nd Defendant is a proper party to this suit, and whether the Plaintiff has proved his case on a balance of probabilities. Whether the 2nd Defendant is a proper party to this suit The Plaintiff stated that he had sued the 2 nd Defendant since the 2nd Defendant helps in managing and running the scheme, and that he also helps in processing benefits for retired teachers. It is this court’s considered view that the question of whether the 2 nd Defendant was a proper party to this suit or not could have been easily answered by the Plaintiff through the filing of the 1 st Defendant’s constitution or by-laws. None was placed before this court. In the circumstances, it follows that the Plaintiff did not place before this court evidence to corroborate his oral testimony in order to prove on a balance of probabilities that the 2nd Defendant could be sued in their personal capacity in a claim against the 1st Defendant. Kitale CMC CC. No. 26 of 2023 Page 2 of 5 Judgment

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It is for the reasons above that this court finds that the 2 nd Defendant is not a proper party to this suit. Whether the Plaintiff proved their case on a balance of probabilities The Plaintiff, even in the absence of evidence to the contrary by the Defendant, is duty-bound to prove her case on a balance of probabilities. It is trite that the legal burden of proof lies with the person who alleges. 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 dependant on the existence of facts which he asserts must prove that those facts exist.’’ In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: “As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” In Daniel Toroitich Arap Moi –vs- Mwangi Stephen Muriithi & Another [2014] eKLR the Court of Appeal held that: “It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence Kitale CMC CC. No. 26 of 2023 Page 3 of 5 Judgment

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falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.” This court has had the benefit of going through the documents (Pexh. 1 and Pexh. 2) relied upon by the Plaintiff, in the absence of evidence to the contrary by the 1st Defendant, this court is of the considered view that the Plaintiff proved on a balance of probabilities that the 1 st Defendant owes him Kshs. 75,456/= (Kenya Shillings Seventy-Five Thousand Four Hundred and Fifty-Six) that remains unpaid to date. DISPOSITION Given the foregoing, judgment is entered against the Defendant in the following terms: a) Judgment is entered against the 1st Defendant for the sum of Kshs. 75,456/= (Kenya Shillings Seventy-Five Thousand Four Hundred and Fifty-Six) only b) The sum in (a) above shall earn interest at court rate from the date of filing this suit (18th December 2024) till payment in full c) The Plaintiff will have costs of this suit. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 17 th day of June 2025 T.O. OMONO MAGISTRATE In the presence Kitale CMC CC. No. 26 of 2023 Page 4 of 5 Judgment

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Plaintiff C/A: Albert Kitale CMC CC. No. 26 of 2023 Page 5 of 5 Judgment

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