Mufanji Events v Quikin Lounge Mirema Drive (Commercial Claim E19717 of 2024) [2025] SCC 55 (KLR)

6. The Claimant allegedly rendered the services above as agreed only for the Respondent to fail to settle their invoice of Kshs. 116,066/= hence this claim. 7. The Respondent entered appearance and filed a Response to the Statement of Claim dated 21st November 2024 urging this court to dismiss this claim with costs. 8. It was the Respondent’s case that the Claimant breached their obligations since the Respondent did not meet the set target sales of Kshs. 2,000,000/= for all the events, and that there was no agreement between the parties herein for payment of 7% commission to the Claimant regardless of sales as alleged by the Claimant. 9. Given the divergent positions taken by the parties herein regarding this claim, this matter proceeded to full hearing where the evidence adduced before this court was as summarized below. Claimant’s Case 10. CW1 Joseph Mwangi John testified that he was the Claimant’s Chief Executive Oficer. He adopted his witness statement dated 12th November 2024 as his evidence in chief. He also produced all the documents in his list of documents herein as exhibits. 11. In cross-examination, he stated that the Claimant was an events planning company trading using the business name Mufanji Events. He conceded that the business proposal that he produced before this court was not signed by the Respondent. He could not tell the sales volume for the period in question. 12. He concluded his testimony by stating that the agreement between the Claimant and the Respondent on pay was oral. He also stated that the WhatsApp messages extracts on record showed that the Respondent promised to pay them the sum claimed in this claim. Respondent’s Case 13. RW1 Alfred Ng’ang’a Muchoki recalled that he was the proprietor of Quikin Lounge. He adopted his witness statement dated 21st November 2024 as his evidence in chief. 14. He produced a fiyer and the Claimant’s statement of account for the period in question as exhibits. 15. He denying owing the Claimant any money since the Claimant did not achieve the sales target of Kshs. 2,000,000/=. He also denied agreeing with the Claimant on a remuneration of 7% of the sales. 16. In cross-examination, he stated that the Claimant ran the October events based on the proposal herein. He added that he disputed the invoice dated 05th October 2024 as evidenced by the WhatsApp messages extracts filed by the Claimant. 17. He also stated that he paid the artists and the DJs for the events run by the Claimant during the period in question. Analysis & Determination 18. This court has duly considered the pleadings, written submissions and authorities placed before this court by each party. 18. Before delving into an analysis of this case, it is imperative to dispose a legal issue regarding the Claimant’s legal capacity to sue in its name raised by the Respondent in their written submissions. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/55/eng@2025-11-06 2

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19. The Respondent submitted that this claim was not properly before this court given that this claim was filed by by a business name yet a business name lacks the capacity to sue in its name. The Respondent cited several authorities to that efiect. 20. A reading of the business proposal on record shows that the Claimant is an event planning, promotion, and marketing company. On the other hand, the Statement of Claim filed by the Claimant identified or described the Claimant as a partnership. 21 CW1 testified before this court that the Claimant is an events planning company using Mufanji Events as its business name. 22. This court agrees with the Respondent that a business name lacks the capacity to sue in its name. However, given the CW1’s oral testimony that the Claimant was a company, and the entry in the Statement of Claim that the Claimant was a Partnership, the Respondent bore the burden of proving that the Claimant was neither a Partnership nor a Company since it is trite law in this jurisdiction that he who alleges must prove. 23. The Companies Act permits a company to sue and be sued in its own name while section 7 of the Partnerships Act permits a partnership to sue and be sued in its own name. 24. Therefore, the Respondent having failed to prove that the Claimant is a business name, it follows that even if the Claimant is a Company or a Partnership, that legal status did not afiect the Claimant’s legal capacity to file this claim in its own name. 25 . In the circumstances, this court finds and holds that this claim is properly before this court. 26. This court will now proceed to determine whether the Claimant proved this claim to the required standards. 27. The gist of this claim is that the Respondent breached the agreement between them and the Claimant by allegedly refusing to pay the Claimant Kshs. 116,066/= for promotion services reportedly rendered by the Claimant. 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 afirmative 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. 30. 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 suficient certainty, he has at least a claim for nominal damages.” https://new.kenyalaw.org/akn/ke/judgment/scc/2025/55/eng@2025-11-06 3

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31. The court in Gatobu M’ibuutu Karatho – Versus - Christopher Muriithi Kubai [2014]eKL cited the High Court in Kampala case “Nakana Trading Co. Ltd – Versus - Cofiee 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.” 32. Having fully appreciated what breach of contract entails, this court will proceed to determine whether the Claimant proved to the required standards that the Respondent breached the contract between the parties herein by reportedly failing to pay the Claimant Kshs. 116,066/= for promotion services allegedly rendered by the Claimant. 33. The Claimant relied on the business proposal, the invoice dated 14th October 2024, and the WhatsApp messages extracts herein to prove their claim. During the hearing of this matter, the Claimant conceded that the business proposal herein did not metamorphose into a contract between the parties herein. It remained a proposal; an ofier by the Claimant. 34. The foregoing shows that the agreement between the parties herein was oral. 35. It is common ground that the Claimant rendered promotion services to the Respondent. The only point of departure between the parties herein is whether the Claimant is entitled to Kshs. 116,066/= for the services rendered to the Respondent. 36. The Claimant testified that the Kshs. 116,066/= claimed herein was not based on the Claimant’s sales for 05th October 2024 but the costs/fees for the personnel who rendered promotion services to the Respondent as well as 7% of the sales for 11 -12th October 2024. 37. The Respondent on the other hand took the position that the Claimant was not entitled to the sum of money claimed having breached their obligation of ensuring that the Respondent makes a minimum sales of Kshs. 2,000,000/= during the promotion of the Respondent’s business by the Claimant during the period in question. 38. Given the above, one may be tempted to argue that this is a case of the Claimant’s word against the Respondent’s word. 39. However, a reading of the WhatsApp messages extracts adduced by the Claimant whose authenticity was not disputed by the Respondent, shows that the Respondent did not dispute the contents of the invoice dated 14th October 2024 served upon them by the Claimant. 40. Those WhatsApp messages show that the Respondent’s directors’ concerns were that they were spending money in paying the Claimant’s promotion personnel yet the Respondent had not achieved the sales that the Claimant had reportedly promised them to achieve. 41. There is nothing in those WhatsApp messages extracts to suggest that the payment of the sum of money claimed by the Claimant through the invoice dated 1th October 2024 was contingent on the Respondent achieving a given minimum sales. 42. It can be deduced from the message exchange between CW1 and RW1 on 14th October 2024, that RW1 advised the Claimant to talk to the Respondent’s directors for those directors to find a way of paying the sum of money claimed by the Claimant. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/55/eng@2025-11-06 4

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43. The said messages also reveal that on 13th October 2024, when CW1 made a follow up from RW1 on the status of payment of the sum of money claimed by the Claimant herein, RW1 informed CW1 that one Elizabeth would sort the payments. 44. The foregoing shows that the Respondent promised to settle the money claimed by the Claimant herein. 45. The Respondent having promised to pay the Claimant Kshs. 116,066/= set out in the invoice dated 14th October 2024 cannot turn around and purport to dispute the amounts in the said invoice. 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 held doth: “ 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 afiects 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.” 46. Guided by the authority above, the Respondent must be called upon to settle the undisputed invoice dated 14th October 2024 served upon them by the Claimant. Determination 47. The upshot of the foregoing is that: a. Judgment is entered against the Respondent for Kshs. 116,066/= b. The sum of Kshs. 116,066/= in (a) above awarded to the Claimant herein will earn interest at court rate from the date of filing this claim till payment in full c. The Claimant will have the cost of this claim assessed at Kshs. 30,000/= Judgment accordingly. Certificate of costs and decree to issue forthwith. File closed. READ, SIGNED AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 06TH DAY OF NOVEMBER 2025 T.O. OMONO ADJUDICATOR In the presence of: Mr. Muthomi for the Respondent C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/scc/2025/55/eng@2025-11-06 5

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