REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITUI CIVIL APPEAL NO. 51 OF 2016 K N...................APPELLANT VERSUS J M T........RESPONDENT JUDGMENT 1. The Respondent, J M T, by way of Plaint claimed Kshs. 260,000/= from the Appellant, K N. It was pleaded that he advanced a friendly loan to the Appellant in the sum of Kshs. 290,000/= between 2010 and 2015, money that used to be sent via M-pesa service. That the Appellant who was supposed to refund the money by 1st March, 2015 only paid Kshs. 30,000/= leaving an outstanding balance of Kshs. 260,000/=. 2. In defending the claim the Appellant denied the allegations set out, in particular having borrowed money from the Respondent. She averred that she had a love affair with the Appellant and anything he gave to her was in reciprocation of her love intensity. She prayed for the dismissal of the suit. 3. The learned trial Magistrate considered evidence adduced and reached a finding that indeed the sum of Kshs. 260,000/= was owing. He entered Judgment in favour of the Respondent in the sum of Kshs. 260,000/= with costs of the suit. 4. Aggrieved by the decision of the Lower Court the Appellant appealed on grounds that the decision of the Court was based on extraneous matters; Awarding the liquidated damages of Kshs. 260,000/= despite the fact that it was the Respondent who breached the agreement was erroneous and that the case was not proved on a balance of probabilities. 5. Rival submissions were filed by Counsels for both parties to dispose of the Appeal. 6. This being the first Appellate Court it is duty bound to re-evaluate the evidence, assess it and come to a own conclusion bearing in mind the fact that It did not have the opportunity of seeing or hearing witnesses who testified at trial (See Selle vs. Associated Motor Boat Company Ltd (1968) EA 123 and Williamson Diamonds Ltd vs. Brown (1970) EA 1). 7. The learned trial Magistrate has been faulted for not conducting a pre-trial conference. After pleadings closed the Court set a date for the pre-trial conference. On the date for mention, the 29th October, 2015 both Counsels for the Appellant and Respondent were present. Counsel for the Respondent had complied with the requirements of Order 3 Rule 2 and Order 11 Rule 2 of the Civil Procedure Rules. It is Counsel for the Appellant who sought time to comply. He was granted time until 19th November, 2015 when he made no appearance in Court. When the matter came up on the 14th July, 2016 he indicated that he was ready to proceed therefore the matter proceeded. In the premises that ground of Appeal fails. 8. Issues for determination were filed by the Respondent but the learned Magistrate failed to comply with Order 21 Rule 4 of the Civil Procedure Rules which requires a Judgment in suits that are defended to contain a statement of the case, points for determination and reasons for the decision. This however does not go to the substance of the matter therefore an Appeal would not be allowed on the stated ground perse. 9. The claim herein was a liquidated one. It is pleaded that the Appellant approached the Respondent to advance her a friendly loan of Kshs. 290,000/= on or about 2010, 2015 to be refunded on the 1st March, 2015. 10. The elementary principle of law is that he who alleges must prove the allegations. This is stipulated in Section 107(1)(2) of the Evidence Act that provides thus: “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he
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asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” Section 112 of the Evidence Act provides thus: “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 11. To discharge the burden of proving the fact that he gave the Appellant money the Respondent adduced in evidence his M-pesa statement. According to the statements money was sent by the Respondent to the Appellant thus, on: 2014 – 10 – 16 – Kshs. 1027 2014 – 10 – 13 – Kshs. 227 2014 – 10 – 12 – Kshs. 227 2014 – 10 – 11 – Kshs. 227 2014 – 10 – 11 – Kshs. 2027 2014 – 10 – 10 – Kshs. 227 2014 – 10 – 09 – Kshs. 1027 2014 – 10 – 05 – Kshs. 527 2014 – 10 – 02 – Kshs. 627 2014 – 10 – 02 – Kshs. 1027 2014 – 09 – 28 – Kshs. 527 2014 – 09 – 25 – Kshs. 1627 2014 – 09 – 23 – Kshs. 1027 2014 – 09 – 22 – Kshs. 527 2014 – 09 – 19 – Kshs. 1627 2014 – 09 – 17 – Kshs. 3049 2014 – 09 – 11 – Kshs. 627 2014 – 09 – 07 – Kshs. 527 2014 – 08 – 21 – Kshs. 1027 2014 – 08 – 14 – Kshs. 1027 2014 – 08 – 07 – Kshs. 1027 2014 – 07 – 31 – Kshs. 3549 2014 – 07 – 29 – Kshs. 427 2014 – 07 – 27 – Kshs. 627 2014 – 07 – 24 – Kshs. 1027 2014 – 07 – 17 – Kshs. 1027
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2014 – 07 – 10 – Kshs. 1027 2014 – 07 – 04 – Kshs. 627 2014 – 07 – 03 – Kshs. 1027 2014 – 06 – 26 – Kshs. 1027 2014 – 06 – 23 – Kshs. 427 2014 – 06 – 22 – Kshs. 1027 2014 – 06 – 22 – Kshs. 1027 2014 – 06 – 20 – Kshs. 1027 2014 – 06 – 19 – Kshs. 3000 2014 – 06 – 16 – Kshs. 2027 2014 – 06 – 11 – Kshs. 427 2014 – 06 – 09 – Kshs. 400 2014 – 06 – 08 – Kshs. 400 2014 – 06 – 04 – Kshs. 227 2014 – 06 – 03 – Kshs. 227 2014 – 06 – 29 – Kshs. 7000 2014 – 05 – 12 – Kshs. 5066 2014 – 05 – 12 – Kshs. 5066 2014 – 04 – 28 – Kshs. 427 2014 – 04 – 24 – Kshs. 1027 2014 – 04 – 20 – Kshs. 527 2014 – 04 – 20 – Kshs. 427 2014 – 04 – 19 – Kshs. 227 2014 – 04 – 18 – Kshs. 5027 2014 – 04 – 17 – Kshs. 1027 2014 – 04 – 12 – Kshs. 447 2014 – 04 – 10 – Kshs. 1027 2014 – 04 – 08 – Kshs. 227 2014 – 04 – 07 – Kshs. 1027 2014 – 04 – 03 – Kshs. 1027 2014 – 04 – 02 – Kshs. 5066 2014 – 03 – 27 – Kshs. 200
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2014 – 03 – 27 – Kshs. 2700 2014 – 03 – 24 – Kshs. 427 2014 – 03 – 24 – Kshs. 500 2014 – 03 – 21 – Kshs. 1027 2014 – 03 – 13 – Kshs. 1027 2014 – 03 – 11 – Kshs. 427 2014 – 03 – 10 – Kshs. 427 2014 – 03 – 06 – Kshs. 2000 2014 – 03 – 05 – Kshs. 10000 2014 – 03 – 03 – Kshs. 10000 2014 – 03 – 01 – Kshs. 327 2014 – 03 – 01 – Kshs. 3000 2014 – 02 – 27 – Kshs. 1027 2014 – 02 – 20 – Kshs. 1027 2014 – 02 – 08 – Kshs. 10110 2014 – 01 – 28 – Kshs. 227 2014 – 01 – 23 – Kshs. 1027 2014 – 01 – 18 – Kshs. 327 2014 – 01 – 16 – Kshs. 327 2014 – 01 – 03 – Kshs. 327 2013 – 12 – 27 – Kshs. 500 2013 – 11 – 29 – Kshs. 1027 2013 – 11 – 22 – Kshs. 1027 2013 – 11 – 17 – Kshs. 527 2013 – 11 – 14 – Kshs. 1027 2013 – 11 – 13 – Kshs. 227 2013 – 11 – 09 – Kshs. 427 2013 – 11 – 09 – Kshs. 427 2013 – 11 – 07 – Kshs. 1027 2013 – 11 – 02 – Kshs. 327 2013 – 10 – 31 – Kshs. 1027 2013 – 10 – 29 – Kshs. 327
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2013 – 10 – 29 – Kshs. 527 2013 – 08 – 19 – Kshs. 1027 2013 – 08 – 15 – Kshs. 527 2013 – 08 – 08 – Kshs. 527 2013 – 08 – 01 – Kshs. 527 2013 – 08 – 01 – Kshs. 1027 2013 – 07 – 25 – Kshs. 527 2013 – 07 – 19 – Kshs. 227 2013 – 07 – 18 – Kshs. 527 2013 – 07 – 11 – Kshs. 1027 2013 – 07 – 04 – Kshs. 5582 2013 – 06 – 27 – Kshs. 527 2013 – 06 – 20 – Kshs. 527 2013 – 06 – 16 – Kshs. 527 2013 – 06 – 13 – Kshs. 1027 2013 – 06 – 06 – Kshs. 527 2013 – 06 – 03 – Kshs. 527 2013 – 05 – 30 – Kshs. 1027 2013 – 05 – 17 – Kshs. 227 2013 – 05 – 16 – Kshs. 527 2013 – 05 – 13 – Kshs. 527 2013 – 05 – 08 – Kshs. 2000 2013 – 05 – 02 – Kshs. 527 2013 – 04 – 25 – Kshs. 527 2013 – 04 – 18 – Kshs. 527 2013 – 04 – 13 – Kshs. 527 2013 – 04 – 13 – Kshs. 527 2013 – 04 – 04 – Kshs. 527 2013 – 03 – 28 – Kshs. 527 2013 – 03 – 22 – Kshs. 527 2013 – 03 – 17 – Kshs. 227 2013 – 03 – 17 – Kshs. 527
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2013 – 03 – 16 – Kshs. 1027 2013 – 03 – 16 – Kshs. 1527 2013 – 03 – 10 – Kshs. 775 2013 – 02 – 28 – Kshs. 527 2013 – 02 – 23 – Kshs. 227 2013 – 02 – 23 – Kshs. 3550 2013 – 02 – 21 – Kshs. 1027 2013 – 02 – 07 – Kshs. 30000 2013 – 02 – 02 – Kshs. 1525 2013 – 01 – 31 – Kshs. 825 2013 – 01 –30 – Kshs. 425 2013 – 01 –29 – Kshs. 325 2013 – 01 –24 – Kshs. 525 2013 – 01 –23 – Kshs. 225 2013 – 01 –18 – Kshs. 1000 2013 – 01 –17 – Kshs. 1025 2013 – 01 –15 – Kshs. 225 2013 – 01 –14 – Kshs. 625 2013 – 01 –10 – Kshs. 1725 2013 – 01 –04 – Kshs. 425 2013 – 01 –03 – Kshs. 1225 2012 – 12 –27 – Kshs. 1725 2012 – 12 –20 – Kshs. 1325 2012 – 12 –17 – Kshs. 625 2012 – 12 –13 – Kshs. 1525 2012 – 12 –08 – Kshs. 225 2012 – 12 –06 – Kshs. 1025 2012 – 12 –03 – Kshs. 325 2012 – 12 –03 – Kshs. 525 2012 – 11 –29 – Kshs. 1000 2012 – 11 –29 – Kshs. 525 2012 – 11 –28 – Kshs. 425
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2012 – 11 –24 – Kshs. 425 2012 – 11 –22 – Kshs. 525 2012 – 11 –20 – Kshs. 425 2012 – 11 –17 – Kshs. 225 2012 – 11 –16 – Kshs. 525 2012 – 11 –15 – Kshs. 6075 2012 – 11 –11 – Kshs. 425 2012 – 11 –08 – Kshs. 525 2012 – 11 –06 – Kshs. 325 2012 – 11 –01 – Kshs. 1525 2012 – 10 –27 – Kshs. 225 2012 – 10 –26 – Kshs. 525 2012 – 10 –25 – Kshs. 425 2012 – 10 –25 – Kshs. 525 2012 – 10 –18 – Kshs. 1025 2012 – 10 –14 – Kshs. 425 2012 – 10 –11 – Kshs. 525 2012 – 10 –10 – Kshs. 525 2012 – 10 –10 – Kshs. 225 2012 – 10 –08 – Kshs. 225 2012 – 10 –01 – Kshs. 425 2012 – 09 –29 – Kshs. 525 2012 – 09 –26 – Kshs. 225 2012 – 09 –24 – Kshs. 425 2012 – 09 –20 – Kshs. 1025 2012 – 09 –18 – Kshs. 600 2012 – 09 –18 – Kshs. 625 2012 – 09 –17 – Kshs. 325 2012 – 09 –13 – Kshs. 2025 2012 – 09 –13 – Kshs. 525 2012 – 09 –09 – Kshs. 225 2012 – 09 –08 – Kshs. 225
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2012 – 09 –06 – Kshs. 1025 2012 – 08 –23 – Kshs. 1025 2012 – 08 –22 – Kshs. 225 2012 – 08 –18 – Kshs. 525 2012 – 08 –16 – Kshs. 425 2012 – 08 –16 – Kshs. 525 2012 – 08 –09 – Kshs. 525 2012 – 08 –03 – Kshs. 525 2012 – 08 –01 – Kshs. 525 2012 – 07 –30 – Kshs. 1525 2012 – 07 –29 – Kshs. 525 2012 – 07 –28 – Kshs. 1025 2012 – 07 –26 – Kshs. 525 2012 – 07 –25 – Kshs. 1525 2012 – 07 –21 – Kshs. 525 2012 – 07 –19 – Kshs. 525 2012 – 07 –16 – Kshs. 1525 2012 – 07 –15 – Kshs. 425 2012 – 07 –12 – Kshs. 1025 2012 – 07 –09 – Kshs. 525 2012 – 07 –05 – Kshs. 525 2012 – 07 –05 – Kshs. 525 2012 – 06 –30 – Kshs. 5100 2012 – 06 –28 – Kshs. 2025 2012 – 06 –26 – Kshs. 1025 2012 – 06 –23 – Kshs. 625 2012 – 06 –21 – Kshs. 525 2012 – 06 –09 – Kshs. 525 2012 – 06 –07 – Kshs. 2025 2012 – 06 –05 – Kshs. 525 2012 – 05 –31 – Kshs. 525 2012 – 05 –31 – Kshs. 1555
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2012 – 05 –28 – Kshs. 225 2012 – 05 –26 – Kshs. 225 2012 – 05 –24 – Kshs. 525 2012 – 05 –23 – Kshs. 525 2012 – 05 –07 – Kshs. 225 2012 – 05 –01 – Kshs. 425 2012 – 04 –28 – Kshs. 325 2012 – 04 –19 – Kshs. 2025 2012 – 04 –18 – Kshs. 225 2012 – 04 –16 – Kshs. 225 2012 – 04 –09 – Kshs. 300 2012 – 04 –01 – Kshs. 400 2012 – 03 –21 – Kshs. 225 2011 – 12 –22 – Kshs. 1025 2011 – 12 –15 – Kshs. 1025 2011 – 10 –15 – Kshs. 1225 2011 – 09 –15 – Kshs. 825 2011 – 09 –08 – Kshs. 500 TOTAL Kshs. 276,177 12. In his testimony the Respondent stated that the sum of money was a loan. In her defence the Appellant confessed having received the money but sought to avoid liability by arguing that the money was given to her in consideration of love and affection. The question to be answered is whether that love affected the claim. Was this a debt founded on an immoral consideration? Was it actually a debt that was capable of being enforced? 13. A loan would ordinarily be money lent by an individual to another where there is a promise to repay on a specific date. There ought to be a specified period of time when the money should be repaid. 14. A casual perusal of the M-pesa statement does not suggest that the sum that was being sent to the Appellant was a loan. It does not specify if the sum of money was to be repaid. There is no indication of any obligation on the part of the recipient to repay the sum of money that was being received. 15. It is therefore difficult for the Respondent to enforce the obligation that should have arisen as a contract. The arrangement that existed between the Respondent and Appellant does not amount to that of a lender and borrower. It is probable that the sum of money was founded on an immoral consideration as stated by the Appellant which cannot be enforceable in law. 16. In the premises the Appeal is allowed. The Judgment of the Lower Court is hereby set aside. Due to the nature of the matter, each party shall bear their own costs. 17. It is so ordered. Dated, Signed and Delivered at Kitui this 19th day of April, 2018. L. N. MUTENDE JUDGE
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