Integrity Security Group (EA) Ltd v Simiyu t/a Silk Sports Lounge (Civil Suit E013 of 2025) [2026] KEMC 680 (KLR)

Plaintiff for the provision of security services. The Defendant also denied being the director or the owner of Silk Sports Lounge. 5. Given the divergent positions taken by the parties herein regarding this suit, this matter proceeded to full hearing for the parties herein to prove the averments in their pleadings on a balance of probabilities. 6. The evidence adduced before this court was as summarized below. EVIDENCE Plaintiff’s Case 7. PW1 Maurice Namwalo Aramisi testified that he is the Plaintiff’s Chief Operations Manager. He adopted his witness statement on record as his evidence in chief. He also produced all the documents filed by the Plaintiff as exhibits. 8. His testimony was that the Plaintiff entered into a contract for the provision of security services with the Defendant on 17 th February 2021, as evidenced by the agreement dated 14 th February 2021. He reiterated that Stephen Kaiser Simiyu was the Defendant’s contact person and the person responsible for paying the Plaintiff during the contract period. 9. He stated in cross-examination that he had not filed a document before this court to prove that he was the Plaintiff’s director. He admitted that he was not aware if the Defendant was Silk Sports Lounge’s director. 10. PW2 Patrick Khamis Kwoba testified that he is one of the Plaintiff’s directors. He adopted his witness statement herein as his evidence in chief. He reiterated that during the period he was running the Plaintiff’s Bungoma office, he used to deal with Stephen Kaiser Simiyu and receive payments from him on behalf of Silk Sports Lounge. 11. In cross-examination, he conceded that he had not filed the company’s minutes permitting the filing of this suit. He added that

page 2 of 10

Stephen Kaiser Simiyu had signed the undertaking on record voluntarily. Defendant’s Case 12. The Defendant did not call any witnesses to prove their averments in their Statement of Defence on record. The consequence of a Defendant failing to call witnesses to substantiate the averments in their Statement of Defence was aptly captured in Edward Mariga suing through Stanley Mobisa Mariga Vs. Nathaniel David Shulter & Another [1979] eKLR, where the Court of Appeal stated as follows: “The respondents filed a defence in which they denied the appellant's claim and averred that the accident was caused by the appellant's own negligence in that he suddenly ran across the road and in the process was hit by the motor vehicle. The respondents did not give evidence and so the only explanation as to how the accident happened was the version put forward by the appellant and his brother.” 13. Similarly, C.B. Madan JA made the following remarks in CMC Aviation Ltd Vs. Crusair Ltd (No.1) (1987) KLR 103 regarding this issue: “The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend upon evidence for proof of their contents.” 14. Guided by the authorities above, it follows that the averments in the Defendant’s Statement of Defence, having not been substantiated by any witness, remain mere allegations which this court will not consider in determining this case. ANALYSIS AND DETERMINATION 15. This court has given due regard to the pleadings, evidence, written submissions, and the authorities on record. 16. Before delving into an analysis of this case, it is imperative to dispose a legal issue regarding the PW1’s capacity to file this suit on behalf of the Plaintiff in the absence of the Plaintiff’s resolution

page 3 of 10

permitting the filing of this suit which arose during the Defendant’s cross-examination of PW1 and PW2. 17. It is given that section 34 (1) of the Companies Act expressly states that a company can only be bound by its director and that only a director of a particular company is permitted to plead on behalf of a company in a case. Order 4 rule 1 (4) of the Civil Procedure Rules, on the other hand, provides that where the plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the company duly authorized under the seal of the company to do so. The practice in this jurisdiction is also that a company needs to file a board resolution evidencing an authority for a suit to be filed on behalf of the company. 18. There is no doubt that the Plaintiff did not file any authority permitting PW1 to file this suit on their behalf or plead or testify on their behalf. It is also evident that the verifying affidavit sworn by PW1 does not expressly state if PW1 filed this suit with the Plaintiff’s authority. 19. This issue has been a subject of various judicial pronouncements. For instance, in Spire Bank Limited v Land Registrar & 2 others [2019] KECA 530 (KLR), the Court of Appeal held as follows: “In this regard the learned judge found that there was no board resolution sanctioning the commencement of this action by the company, and therefore it was not properly before the court because “…The Ex-parte Applicant has not exhibited in the verifying affidavit a copy of the resolution of the company authorizing the institution of these proceedings. There is also no evidence before this court that the said Josephine Musembi has been authorized by a resolution under seal.” Order 4 rule 1(4) provides as follows:

page 4 of 10

“1 (4) Where the plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the company duly authorized under the seal of the company to do so.” It is clear from the provision, which is stated in mandatory terms, that for a company to file suit, there must be a verifying affidavit sworn by an officer of the company stipulating that he or she is duly authorized under the company’s seal to verify the affidavit in respect of the suit. Such person would of necessity require to be authorized by a resolution of the Board of Directors or the members under seal of the company, in order for the suit to be instituted. Clarifying the position on the question of authorization in the case of Makupa Transit Shade Limited & Another vs Kenya Ports Authority & Another [2015] eKLR this Court stated thus; “In our view, the Authority, as with other corporate bodies, has its affidavits deponed on its behalf by persons with knowledge of the issues at hand who have been so authorized by it. It was therefore sufficient for the deponents to state that “they were duly authorized.” It was then up to the appellants to demonstrate by evidence that they were not so authorized.” So that it was sufficient for the authorized person to depone that he or she was duly authorized, but in the event of a complaint that such person was unauthorized, it was up to the disputing party to demonstrate with evidence that the deponent did not have the requisite authority, the onus being on the party making the allegation to prove it. A bare statement that the plaintiff or applicant was not authorized would not be sufficient.”

page 5 of 10

20. In Raymark Limited v John Lokorio [2021] KEELC 248 (KLR), the court held: “Having found that the company ( plaintiff) had indeed authorized the filing of the suit, board resolution that was the mere fact there was no filed together with the plaint sanctioning the filing of the suit cannot render the suit fatally defective, See Leo Investments Ltd -vs- Trident Insurance Co. Ltd (supra) where Odunga, J held that failure to file a resolution authorizing filing of the suit does not invalidate the suit as the defect can be rectified by filing the resolution before the suit was heard. To hold otherwise would be to elevate procedural technicalities to a point where they would be an impediment to the administration of justice. Article 159 (2) (d) of the constitution which section 19(1) of the Environment and Land Court Act, 2011 echos, enjoins the court to administer justice expeditiously and without undue regard to technicalities of procedure.” 21. The authorities above are self-explanatory that the strict requirement for the filing of an authority to plead on behalf of a company before a person testifying on behalf of a company is deemed to be a proper or competent witness on behalf of a company is no longer good law. 22. The correct legal position on this issue is that where a person has stated in their pleadings or statement that they have been authorized to plead or testify by a company, the evidential burden shifts to the party alleging that they do not have the authority to do so to lead evidence to prove the alleged lack of authority (see Dardanelli & 6 others v Tilito & 3 others (Land Case E041 of 2024) [2025] KEELC 392 (KLR))

page 6 of 10

23. A reading of PW1’s and PW2’s witness statements shows that they stated that they were the Plaintiff’s directors and that PW1 had the Plaintiff’s Board of Management’s authority to plead on behalf of the Plaintiff. 24. The averments in PW1 and PW2’s statements that they were the Plaintiff’s directors shifted the evidential burden to the Defendant to prove on a balance of probabilities that this suit was filed without the Plaintiff’s authority. 25. The Defendant did not place before this court any iota of evidence to demonstrate that this suit was filed without the Plaintiff’s authority and that PW1 and PW2 testified before this court without the Plaintiff’s authority.disproving DW1’s authority to testify before this court on behalf of the 1st Defendant. 26. It is against this backdrop that this court holds and finds that this suit is properly before this court and that PW1 and PW2 had the authority to testify before this court on behalf of the Plaintiff. 27. Turning to the substance of this suit, the gist of this suit is that the Defendant breached the Contract for the provision of security services dated 14th February 2021 by allegedly failing to pay Kshs. 820,299/= due to the Plaintiff. 28. It is settled law in this jurisdiction that the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides: 107. (1) 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. 29. Section 109 of the Evidence Act, on the other hand, stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence.

page 7 of 10

30. This court now proceeds to determine whether the Defendant breached the Security Service Agreement dated 14th February 2021. 31. The Black’s Law Dictionary, 9th Edition, Page 213, defines a breach of Contract as; “a violation of a contractual obligation by failing to perform one’s own promise, by repudiating it, or by interfering with another party’s performance. A breach may be one by non-performance or by repudiation or by both. Every breach gives rise to a claim for damages and may give rise to other remedies. Even if the injured party sustains no pecuniary loss, or is unable to show such loss, with sufficient certainty, he has at least a claim for nominal damages.” 32. The court in Gatobu M’ibuutu Karatho – Versus - Christopher Muriithi Kubai [2014]eKLR cited the High Court in Kampala case “Nakana Trading Co. Ltd – Versus - Coffee Marketing Board 1990-1994 EA 448”, which dealt with the issue of breach of contract as follows:“In contract, a breach occurs when one or both parties fail to fulfill the obligations imposed by the terms since the contract between the parties was reduced into writing, the duty of the court is to look at the documents itself and determine whether it applies to existing facts.” 33. Guided by the authorities above, it follows that a party to an agreement is deemed to have breached an agreement if the guilty party fails to fulfil any of their obligations under the agreement. 34. The Plaintiff placed before this court an undertaking dated 08 th November 2023 executed by the Defendant where the Defendant undertook to settle Kshs. 820,299/= arising from security services rendered by the Plaintiff to the Defendant on or before 15 th December 2023.

page 8 of 10

35. The Defendant did not lead any evidence to prove on a balance of probabilities that he did not voluntarily execute the undertaking on record. The undertaking on record proved on a balance of probabilities that the Defendant breached the Security Service Agreement between the parties herein by failing to pay the Plaintiff for the security services rendered to the Defendant. 36. The Defendant having undertaken to pay the Plaintiff Kshs. 820,299/= on or before 15th December 2023, he cannot turn around and purport to dispute owing the Plaintiff the said sum of money. The doctrine of estoppel works against the Respondent. To this end, this court seeks refuge from Gabriel Smith Otieno Awiti -v- Homabay County Assembly & Another (2013) eKLR where the Court of Appeal stated as follows: “The doctrine of estoppel operates as a principle of law which precludes a person from asserting something contrary to what is implied by previous action or statement of that person --- that where one party by his words of conduct made to the other party a promise or assurance which was intended or affects the legal relations between them and to be acted on, the other party --- the party who gave the promise of assurance cannot afterwards be allowed to revert to the previously legal relationship – he must accept their legal relations subject to the qualifications which he has himself introduced.” 37. In the circumstances, the Defendant must be called upon to pay the money he admitted owing the Plaintiff. 38. Be that as it may, a reading of the Demand Notice dated 26 th October 2023 shows that the sum of Kshs. 820,299/= claimed by the Plaintiff through this suit comprises of Kshs. 781,237/= for the security services rendered by the Plaintiff and legal fees of Kshs. 39.062/= for drawing the said Demand Notice. 39. The claim for legal fees incurred by a party can only be claimed together with the costs of the suit. This is in line with PJO Otieno J’s holding in the Kwendo case (supra), where the learned judge held: “…The Court however, finds that demand letter is a claim for legal fees that is awardable at taxation not in the suit as special damages. That sum is disallowed….” 40. The foregoing inclines this court to dismiss the Plaintiff’s claim of Kshs. 39,062/= legal fees for the Demand Notice dated 26 th October 2023.

page 9 of 10

DETERMINATION 41. The upshot of the foregoing is that judgment is entered against the Defendant for Kshs. 781,237/= 42. The sum of Kshs. 781,237/= above will earn interest at court rate from the date of filing this suit till payment in full. 43. The Plaintiff will have the costs of this suit Read, signed, and delivered in open court at Bungoma this 16th day of April 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Angode h/b for Kweyu for the Defendant Ms. Wanyama for the Plaintiff C/A: Mr. Rioba

page 10 of 10