Ontita v Okembe (Civil Appeal E091 of 2021) [2026] KECA 1196 (KLR)
The bottom line
#A bank slip showing money moved is not proof of a loan; Kenyan courts require actual evidence that the money was lent.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant discharged the burden of proof under sections 107 and 108 of the Evidence Act that the Kshs. 538,000 deposited into the respondent's account was a loan
He did not. Deposit slips proved only the deposits, not that they were loans; the respondent's evidence that the money was deposited in his capacity as the appellant-employee was not controverted by any evidence
The appeal turned on the burden and standard of proof under sections 107 and 108 of the Evidence Act. The appellant relied solely on banking slips showing deposits of Kshs. 398,000 and Kshs. 150,000 into the respondent's NIC Bank account. Beyond those slips he adduced no evidence that the deposits constituted a loan. The respondent, who had employed the appellant in his merchandise shop, rebutted this by testifying that the money was deposited in the appellant's capacity as an employee. Both the trial court and the High Court found that no loan was proved, and the Court, agreeing with the learned Judge, held that even on a balance of probabilities it was difficult to conclude the money was a loan. The Court affirmed that concurrent finding and dismissed all grounds of appeal.
The permissible scope of a second appeal
A second appeal is confined to matters of law and substantial errors of principle; the second appellate court must accept the findings of fact of the two courts below unless no reasonable tribunal could have reached them
Relying on Kenya Breweries Ltd vs. Odoyo and Patrick Omondi Opiyo t/a Dallas Pub vs. Shaban Keah & Another (which adopted the English decision in Martin vs. Glyned Distributors Ltd), the Court restated the settled limits of a second appeal: it resists the temptation to delve into matters of fact and intervenes only where the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse or unsupported by any evidence. The appellant's complaint about the rejection of banking slips was essentially a challenge to findings of fact, which the Court could not entertain absent such error.
Legal principles established
#- In a second appeal the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is based on no evidence at all or is perverse
- A party who asserts that money advanced constitutes a loan bears the burden of proving that fact on a balance of probabilities; production of deposit slips alone, without more, does not discharge that burden where the purpose of the deposit is rebutted
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondent
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal under its appellate jurisdiction over the High Court (matters of law only); no specific provision is cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ontita v Okembe (Civil Appeal E091 of 2021) [2026] KECA 1196 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1196/eng@2026-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.