Mbaka v Musyoka & 2 others (Commercial Claim E10140 of 2024) [2025] SCC 52 (KLR)

Respondent, given that they had settled all the outstanding amounts owed to the Respondent as at September 2024. In the circumstances, the Respondents prayed that this claim be dismissed with costs. ANALYSIS & DETERMINATION This court has duly considered the pleadings, written statements, documents, written submissions and authorities placed before this court by each party. On 17th June 2025, by consent, the parties herein elected that this matter be determined under section 30 of the Act. It is worth noting that where parties elect to proceed with a claim under section 30 of the Act, it is presumed that the Statement of Claim, the Response to the Claim and all the documents filed in support of the respective parties’ cases are self-contained. While writing this judgment, it struck this court that the parties herein introduced new issues in their respective further/supplementary statements. The new issue raised in the said further statements were not contained in the respective parties’ pleadings. It would appear that the parties herein chose to raise further issues in support of their respective cases through their further witness statements. The place of witness statements in this jurisdiction is well settled. The Court of Appeal in Vishva Stones Supplies Company Limited v RSR Stone (2006) Limited (Civil Appeal (Application) E308 of 2020) [2024] KECA 978 (KLR) (26 July 2024) (Judgment) rendered itself doth regarding this issue:- Kitale SCC CC. No. E032 of 2024 Page 2 of 10 Judgment

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‘Mr. Mutiso was at great pains trying to persuade the Court that it was sufficient that the appellant had particularized the claim in his witness statement. Mr. Mutiso’s argument is legally frail and ignores the fact that there is a wide difference in law between a pleading and a witness statement. Pleadings are formal written statements filed by the parties to a lawsuit, outlining their respective claims, defences, and responses to each other's claims. A pleading includes claims and counterclaims but not the evidence which the litigant intends to prove his case. On the other hand, section 3 of the Evidence Act defines evidence as follows: “evidence” denotes the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved; and, without prejudice to the foregoing generality, includes statements by accused persons, admissions, and observation by the court in its judicial capacity; A written witness statement is essentially a means by which a litigant proves his case. Therefore, a witness statement is evidence whose primary purpose is to prove the litigant’s claim. The witness can simply adopt the statement as his evidence in chief and proceed to be cross-examined on the evidence. The attempt by the appellant to equate a witness statement with a pleading has no basis in law. Evidence is led to prove the averments in the pleadings, but no evidence can be led beyond pleadings. Therefore, a witness statement cannot supplement a pleading nor can the function of the two be confused.’ Similarly in Independent Electoral and Boundaries Commission & another vs Stephen Mutinda Mule & 3 Others [2014] eKLR the Court of Appeal while quoting with approval an excerpt from an article by Sir Jack Jacob entitled “The Present Importance of Pleadings” restated that:“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings…for the Kitale SCC CC. No. E032 of 2024 Page 3 of 10 Judgment

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sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is not part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice…. In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.” The appellant is bound by its pleadings. It cannot purport to amend its pleadings by means of a witness statement. Further, in Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Mrima J stated as follows on this issue:‘It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however Kitale SCC CC. No. E032 of 2024 Page 4 of 10 Judgment

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strong, that tends to be at variance with the pleadings must be disregarded. (Emphasis added) Guided by the above precedents, this court holds and finds that all the new issues raised in the respective parties’ further/supplementary statements that are not in tandem with the respective parties’ pleadings will not be considered by this court in determining this matter. Be that as it may, it is common ground that sometime in the year 2020, the Claimant and the 1st Respondent entered into an oral agreement for the Claimant to provide auditing and bookkeeping services for the 2 nd Respondent at a cost of Kshs. 60,000/= per annum and at a cost of Kshs. 40,000/= for the 3rd Respondent. It is against this backdrop that this court is of the considered view that the only issue for determination is whether the Claimant proved to the required standards that the Respondents owed them Kshs. 461,000/=. It is trite law 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. 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. Whereas section 30 of the Act provides that the court will not be wholly bound by the rules of evidence, it is this court’s considered view that the Kitale SCC CC. No. E032 of 2024 Page 5 of 10 Judgment

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said provision only applies when dealing with admissibility of evidence before the court. Therefore, every party before the court still bears the burden to prove their respective cases to the required standards under the Act. To prove their claim, the Claimant relied on a Statement of Claim/Invoice dated 24th August 2023. The Claimant also sought to rely on a WhatsApp conversation between the Claimant and the 1st Respondent of 11th July 2024, where the Claimant stated: ‘Mbaka bado sijalipwa mahali yoyote once get (sic) payment, utakuwa mtu wa kwanza kuitwa na mimi’ to prove that the Respondents were indebted to him. The 1st Respondent on the other side relied on an Mpesa Statement between him and the 1st Respondent for the year 2016 as well as an alleged ‘Statement of Account’ between the parties herein for the year 2016. The question this court has to grapple with is whether the Statement of Account/invoice dated 24th August 2023 and the WhatsApp conversation extract herein proved that the Respondents owed the Claimant Kshs. 416,000/=. An invoice in commercial transactions is a mere demand for payment. However, where an invoice is not disputed by the parties, such an undisputed invoice becomes proof of money therein being due to the Claimant. In the claim before this court, the contents of the invoice placed before this court by the Claimant are disputed. The place of stand-alone disputed invoices in claims for debts was well enunciated by Majanja J (may his gentle soul find peace) in Securex Agencies (K) Limited v Resort Kenya Limited & another (Commercial Appeal E015 of 2023) [2023] KEHC 21751 (KLR) (Commercial and Tax) (29 August 2023) (Judgment) where the learned judge rendered himself in his usual eloquent self thus:- Kitale SCC CC. No. E032 of 2024 Page 6 of 10 Judgment

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‘Since the Respondents did not admit the debt and the Appellant did not produce the delivery notes in support of the invoices, the trial court was correct to conclude that the Appellant did not prove its claim. I also cannot fault the trial court for stating that production of invoices alone was not enough to prove the amount claimed and that the delivery notes were important to prove the Appellant’s claim as the same were expressly sought by the Respondents. The Appellant’s claim thus remained unsupported. In E.P Communications Limited v East Africa Courier Services Limited [2019] eKLR the court held that: “Therefore, invoices and LPOs alone do not prove delivery or receipt of the goods… The other invoices dated 23/20/08 and 20/08/09 were not supported by any delivery note or notes to show receipt of the goods stated therein. The Appellant may have supplied the goods, but courts of law act on hard evidence not sympathy or speculation. In the absence of a delivery note or evidence of receipt of the goods, it becomes doubtful whether the goods were delivered….…Personal statements authored by the Appellant is not sufficient evidence to prove liability especially considering the supporting documentation relied on is invoices and LPOs without the evidence of delivery of the goods. The appellant failed to prove on a balance of probability the extent to which the respondent was liable.”(Emphasis added) The authorities above show that where a Claimant seeks payment of a debt through a disputed invoice, a stand-alone disputed invoice is not enough to prove the debt. A party that seeks to rely on an undisputed invoice needs to provide further evidence to prove that the amount claimed through the disputed invoice is due. The WhatsApp conversation extract herein only shows that as at 11 th July 2024, the 1st Respondent merely acknowledged being indebted to the Kitale SCC CC. No. E032 of 2024 Page 7 of 10 Judgment

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Claimant to a tune of an unknown amount of money. The 1 st Respondent did not admit being indebted to the Claimant to a tune of Kshs. 416,000/= claimed in this claim. In any event, the 1st Respondent stated that he had stated in his Statement of Defence herein that he had settled all the money owed by him to the Claimant by September 2024. The failure by the 1st Respondent to respond to the demand letter herein, if at all the same was served upon him, is not an admission of being indebted to the Claimant to the tune of the amount demanded through that demand letter. Given the denials by the 1 st Respondent on his extent of indebtedness to the Claimant, and in view of the disputed contents of the invoice and statement of account placed before this court by the Claimant, it was incumbent upon the Claimant to place before this court a payment schedule eg Mpesa Statements between him and the Respondents for the period in question for this court to determine the amount due to the Claimant as at the time of filing this claim. In the absence of the document alluded to above, this court holds and finds that the evidence on record is barely adequate for this court to determine whether or not the Respondents owe the Claimant the money claimed in the Statement of Claim herein. What the Claimant did in this case was akin to throwing figures on the head of this court and then making a demand that he be awarded those figures without proof. To borrow the words of Lord Goddard C.J. in Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177 “Plaintiffs must understand that if they bring actions for damages, it is for them to prove damages, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, Kitale SCC CC. No. E032 of 2024 Page 8 of 10 Judgment

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saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it" DISPOSITION The upshot of the foregoing is that the Claimant failed to prove their claim to the required standards; therefore, this claim is dismissed with costs of Kshs. 30,000/= to the Respondents Judgment accordingly. READ, SIGNED and DELIVERED in open court at Bungoma this 30 th day of June of 2025 T.O. OMONO ADJUDICATOR In the presence of: Mr. Opini for the Claimant Ms. Ochieng for the Respondents Claimant C/A: Albert Kitale SCC CC. No. E032 of 2024 Page 9 of 10 Judgment

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Kitale SCC CC. No. E032 of 2024 Page 10 of 10 Judgment

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