1.This is a claim for payment for money arising from supply of goods at the defendant’s request Vide an Amended Plaint dated 28/9/2021 the Plaintiff sought the following: -a.Payment for assortment of assorted roofing material - Kshs. 68,122,264.07b.Costs.c.Interest at prevailing Commercial rates.
2.The defendant filed suit and denied the claim. The matter came before me for hearing. I Decline an adjournment and ordered the parties to proceed. The parties proceeded and the plaintiff testified. The plaintiff produced a list of documents.
Burden of proof
3.The burden of proof is on whoever asserts. In Evans Nyakwana vs. Cleophas Bwana Ongaro (2015) eKLR it was held that:
4.The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others  1 KLR 526 as follows:
5.In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR, the judges of Appeal held that:
6.The witness Maurice Ouma, was an accountant. He stated that the defendants with are customers, they made sure that all machines were obtained through a local purchase order. They also maintained a full ledger activities of the Defendant in their books. The vehicles that were delivering the goods and their respective drivers signed. They produced as document 2 – 37 invoices for the supplies, [pages 38 – 61 delivery notes duly signed and exhibits 62 – 62 the Local Purchase orders.
7.The Defendant was paying by cheques till June 2019, when they were dishonored upon presentation. Some cheques were cleared in August, 2019. There were no cash replacement for exhibits 69 – 76 being unpaid cheques.
8.It is the Plaintiff’s statement that for all outstanding balances they have sales invoice, signed delivery notes and the local purchase orders. The said invoices were not disputed. They were also audited by Kenya Revenue Authority and the Plaintiff’s auditors.
9.The defendant did not testify in spite of being given time to testify, the defendant failed to testify. The Plaintiff’s evidence is as such unrebutted. In the case of the Charterhouse Bank Limited (under Statutory Management Vs. Frank N. Kamau (2016) eKLR had occasion to consider the burden of proof of the plaintiff where the defendant failed to adduce evidence. The court stated in that case:-
10.The plaintiff filed submissions on 5/4/2023. They relies on Sections 3(1) of the sale of goods Act, the Decision in Isaac Mugweru Kirabi T/A Isamu Refri-electrical s =vs= Net Plan East Africa ltd (2018) eKLR, Consolata Anyango Ouma versus South Nyanza Sugar Co. Ltd., Kenya Breweries =vs= Natex Distributors (2004) eKLR and standard Chartered Bank Ltd =vs= Intercom Services Ltd & Others (2004) eKLR.
11.Regarding failure by the defence to call witnesses, the plaintiff relied on the decision of Christine Otieno Caleb =vs= Attorney General (2014) eKLR Notex Knitwear Ltd =vs= Gopitex Knitwear Mills ltd =vs= Trust bank Ltd =vs= Paramount Commercial Bank & 2 Others Karuru Munyororo versus Joseph Ndumua Murage and another No. 95 of 1988, Janet Kaphiphe Ouma and another =vs= Marie Stpopes International (Kenya) Kisumu HCCC 68 of 2007 and Inter chemise EA Ltd. =vs= Nakuru Verstiary Center Ltd. Nairobi HCCC 165 of 2000 and Finally DT Dobie & Co. ( K ) ltd =vs= Wanyonyi Wafula Chebuka.
12.The plaintiff’s claim is liquidated. In DAVID BAGINE vs MARTIN BUNDI  eKLR, the Court of Appeal stated as doth: -
13.The burden of proof was on the plaintiff by dint of Section 107, 108 and 109 of the Evidence Act. The same provide as follows: -
14.On the other hand, the LPO were issued by the Defendant. They knew whether or not cheques for payment cleared. They had a bank account wherein the cheques were to clear. They tendered no evidence. It is only them who knew. Whether a debt has been cleared. Section 112 of the Evidence Act binds them, it states:-
15.Mere denial of a debt does not suffice in the case of Raghbir Singh Chatte v National Bank of Kenya Limited  eKLR,where the court of Appeal stated as doth: -
16.The evidence being unrebutted and it is cogent evidence, I belief the same. In the case of Leo Investment Limited v Mau West Limited & another  eKLR, the court, C. Kariuki, stated as follows: -
17.I have gone through the invoices. I am satisfied that the Plaintiff has proved their case. I therefore allow the same with costs.
18.The upshot is that I make the following orders: -a.I enter judgment for the plaintiff against the defendant for a sum of Ksh 68,122,200/=.b.Costs of Ksh. 800,000/=c.Interest on (a) 14% from the date of filling till payment in full.d.Stay for 30 days.