Kaunda v Kivuvo (Civil Appeal E012 of 2024) [2025] KEHC 18320 (KLR) (17 November 2025) (Judgment) Neutral citation: [2025] KEHC 18320 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KERUGOYA CIVIL APPEAL E012 OF 2024 F ANDAYI, J NOVEMBER 17, 2025 BETWEEN IRENE NJERI KAUNDA ........................................................................ APPELLANT AND AUGUSTINE NZIOKA KIVUVO ...................................................... RESPONDENT (Being an appeal from the judgment and decree of Hon. F. Mutuku Principal Magistrate delivered on 29/1/2024 in Wang’uru Magistrates Court Civil Case No. 164 of 2016) JUDGMENT Background 1. This appeal arises from a suit by the respondent Augustine Nzioka Kivuvo against the appellant, Irene Njeri Kaunda before the trial court in a plaint amended on 12th June 2018. The respondent’s claim in the suit was for the appellant to repay him KShs 520,510/= together with interest at the rate of 30% per month with effect from 20th July 2016 until payment in full. The said money was said to have been advanced to the appellant by the respondent as a friendly loan. There was produced in the trial court an acknowledgment note dated 6th July 2016 signed by both parties that the respondent had advanced the said money to the appellant. The respondent claimed that the appellant failed to repay the money on or before 20th July 2016 as per the acknowledgment note and the respondent filed suit on 11th November 2016 to recover the principal sum together with interest. 2. In her statement of defence dated 6th June 2018 the appellant denied that the respondent had lent her KShs 520,510/= on 6th July 2016 as alleged and put him to strict proof. She acknowledged that she received a sum of KShs 210,000/= from the appellant as a soft loan on 8th January 2016 and asserted that she had repaid the amount in full. She equally acknowledged that the respondent charged her interest on the soft loan at the rate of 30% per month but asserted that the same was unlawful and not https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18320/eng@2025-11-17 1
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authorized by the Central Bank of Kenya (CBK). Further that the claim was unenforceable in law since the respondent was a money dealer who was not licenced or authorized to lend money. 3. Both parties testified at the trial with the respondent calling one additional witness. The parties adopted their respective witness statements filed in the suit. Each was cross-examined largely upon the lines of his or her witness statement. 4. The respondent gave his side of the story that he advanced the loan of KShs 520,510/= to the appellant and produced as evidence of the same the acknowledgment note dated 6th July 2016 signed by both parties. 5. The appellant on her part gave her evidence denying that she received that sum of money from the respondent on the date stated. 6. In a judgment dated 29th January 2024th the trial court allowed the claim by the respondent against the appellant for the sum of KShs 520,510/= with interest at 30% per month from 20th July 2016 until payment in full. Grounds of appeal 7. The appellant was aggrieved by the judgment and now appeals against that decision in her memorandum dated 26th February 2024 raising six grounds which she summarized into three issues for determination in her submissions as follows: a. Whether the trial magistrate misconstrued the appellant’s evidence particularly on how the agreement for KShs 210,000/= was made thereby making a wrong and erroneous decision. b. Whether the interest rate of 30% p.m. is unfair, unjust and unconscionable. c. Whether the security deposited for the soft loan was duly released back to the appellant upon full payment of the loan. Submissions 8. The appeal was disposed of by way of written submissions which were filed by both parties. 9. In her submissions, the appellant set out the issues above for determination while the respondent raised two issues: 10. a. Whether the respondent proved his case to the required standard. b. Whether the interest awarded was unfair, unjust and unconscionable. The issues raised by both parties for this court’s determination are common. The submissions are considered in the following analysis. Duty of appellate court 11. This being a first appeal, the duty of the court is to reconsider the evidence, re-evaluate it and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as guided in the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A 123. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18320/eng@2025-11-17 2
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Case before the trial court 12. It is not disputed that the appellant approached the respondent for a loan and that the respondent advanced her some money. The disputed issues are when this loan was advanced and how much was advanced. 13. According to the respondent, the loan he was claiming of KShs 520,510/= was advanced to the appellant on 6th July 2016 as supported by the acknowledgment note produced in court as exhibit. He also said that the appellant deposited with their advocate, as security for the loan, a title deed for land parcel title No. Baragwe/Raimu/1619 in the name of her husband Nyamu Luka. The respondent produced in evidence as exhibits several other similar prior acknowledgments by the appellant for loans advanced to her by the respondent, an indication that they had been engaged in that business not once but several times. The acknowledgments are reduced into the following table: **** Date Amount (KShs) Date due Duration 1. 23/11/2015 300,000/= 23/12/2015 1 month 2. 08/1/2016 210,000/= 15/1/2016 1 week 3. 21/1/2016 220,000/= 04/2/2016 2 weeks 4. 11/2/2016 230,000/= 25/2/2016 2 weeks 5. 28/3/2016 250,000/= 28/4/2016 1 month 6. 29/4/2016 270,000/= 29/5/2016 1 month 7. 06/7/2016 520,510/= 20/7/2016 2 weeks 14. In cross-examination, the respondent said that the appellant had topped up her loan of KShs 210,000/ = taken from him earlier. 15. PW 2, Simon Gitonga Wachira, the advocate in whose offices the acknowledgment notes for the loans were prepared and who also kept the appellant’s security, her husband’s land title deed, confirmed those facts. He said that all the acknowledgment notes produced in evidence by the respondent were prepared and signed in his office and there was no complaint of forgery. 16. According to the appellant, in her undated witness statement, she received a loan of KShs 210,000/= from the respondent on 8th January 2016. She produced as evidence an acknowledgment note of that date. signed between her and the respondent and witnessed by the advocate This evidence corresponds with the respondent’s evidence and acknowledgment note dated 8th January 2016 that on this date, he advanced the appellant the sum of KShs 210,000/=. However, according to the appellant, the respondent only advanced her KShs 160,000/= with an interest of 30% per month and KShs 2,000/= was for advocate fees, thus making it KShs 210,000/=. 17. The appellant also said that on that date, 8th January 2016, the respondent asked for a security for the loan as he considered the loan of KShs 160,000/= a large amount which he could not advance without security. That previously, he had advanced her loans of smaller amounts without security. She therefore offered him her husband’s land title deed indicated above. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18320/eng@2025-11-17 3
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18. The appellant also testified that the respondent continued to advance her small loans below KShs 50,000/= which she would repay and she had no outstanding loan with the respondent and thus the basis of the title deed being released to her. Analysis 19. I have considered the grounds of appeal and the submissions by learned counsels for the parties. I have considered and reviewed the case before the trial court including the pleadings, the evidence and the judgment of the learned trial magistrate. 20. The respondent’s claim was for a sum of KShs 520,510/= that he alleged to have advanced to the appellant on 6th July 2016 as a loan attracting an interest of 30% per month until full payment. He produced evidence in court in the form of acknowledgment notes showing that as early as 23rd November 2015, he was advancing money to the appellant in the form of a friendly loan. The appellant confirmed as much, that indeed the respondent had advanced her some money on 23rd November 2015. That acknowledgment note was for KShs 300,000/= loan. This is contrary to the allegation by the appellant that before 8th January 2016 the respondent would advance her sums of less than KShs 80,000/= for which the respondent did not ask for security. There is no indication that at this point the respondent asked for security for the KShs 300,000/=. 21. The appellant on her part maintained that the respondent advanced her a loan of KShs 160,000/ = and together with interest and advocate’s charges, it became 210,000/=. Learned counsel for the appellant took up this issue strongly in his submissions, maintaining that this was the only amount the respondent had advanced to the appellant. The appellant then alleged that the respondent asked for and she provided the husband’s land title deed as security because this was a large sum of money. 22. The assertion by the appellant and the submission by learned counsel cannot be correct in view of the evidence on record. 23. First, it is clear that the sum was not larger than the KShs 300,000/= that the appellant had borrowed on 23rd November 2015 for which the respondent had not asked for security. So, the issue of the respondent asking for security on 8th January 2016 cannot be true for that reason and for the further reason that, the acknowledgment note of 8th January 2016 produced herein and agreed to by both parties does not bear the title deed endorsed thereon as having been deposited with the advocate on that date. The same is however endorsed in the acknowledgment note of 6th July 2016 when the respondent says he advanced her the loan of KShs 520,510/= the subject of the suit. 24. Consequently, from the documents produced in court as evidence, the conclusion that arises is that, the security, the title deed was not deposited on 8th January 2016 but on 6th July 2016. The appellant’s oral evidence that the land title deed was deposited with the advocate on 8th January 2016 is therefore could no be acceptable. 25. It was the appellant’s evidence that she had repaid the loan in full on 7th February 2016 wherein the respondent collected the money from her shop at 12.35 p.m. and she noted the payment in her cash register. She did not produce this cash register in court to support her testimony. That however, doesn’t mean that her testimony could not be believed, but that such production would have made it stronger. 26. The appellant asserted further that she had repaid the entire KShs 210,000/= by 7th February 2016 and then she continued taking smaller loans. Yet, from this time onwards, there is no indication that she asked for the security she had allegedly deposited with the advocate sometime back. That is further https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18320/eng@2025-11-17 4
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evidence that contrary to her assertions, the title deed was not deposited on 8th January 2016 but on 6th July 2016. 27. The appellant alleged in her statement of defence that the acknowledgment of debt dated 6th July 2016 produced by the respondent as evidence was a forgery and averred that she would subject the same to document examination analysis. She did not however provide particulars of forgery as required under Order 2 Rule 4(1)(a) and Rule 10(2) which provide that: “ 4(1) A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant Statute of limitation or any fact showing illegality— (a) which he alleges makes any claim or defence of the opposite party not maintainable; (b) …” “ 10(1) Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing— (a) 28. particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and …” The failure to provide the particulars as required under the rules means she would not be able to rely on that allegation in her defence. Further, under section 109 of the Evidence Act, the evidential burden of proof lay on her to establish those allegations. The court underscored this position in the case of Christopher Ndaru Kagina v Esther Mbandi Kagina & another [2016] KEHC 3192 (KLR) as follows: “ The burden of proof lies on the applicant in establishing the fraud that he alleges. In Belmont Finance Corporation Ltd. v. Williams Furniture Ltd [27]Buckley L.J. said: “ An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a well-recognised rule of practice. This does not import that the word ‘fraud’ or the word ‘dishonesty’ must be necessarily used. The facts alleged may sufficiently demonstrate that dishonesty is allegedly involved, but where the facts are complicated this may not be so clear, and in such a case it is incumbent upon the pleader to make it clear when dishonesty is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegation of its dishonest nature will not have been pleaded with sufficient clarity.” 29. By pleading forgery, the appellant was alleging dishonesty on the part of the respondent. She was not only required to provide the particulars of the alleged forgery in her pleadings but under section 109 of the Evidence Act to prove the same. 30. The advocate in whose office the acknowledgment notes for loan advances were done by the two parties gave evidence and confirmed that the same were genuine and no complaint of forgery had been raised with him. When the appellant was asked in cross-examination whether she had reported the allegation of forgery to the police for investigations, she said that she did not know it was reportable. I find https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18320/eng@2025-11-17 5
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that to have been evasive but all the same, it confirms that she did not. The advocate confirmed that the appellant did not complain to him that her signature had been forged and the allegation was not reported to the police. 31. Thirdly, even in the absence of the particulars of forgery as found above, it is obvious that the forgery, if at all, could only have happened with respect to the signature appearing on the document as hers since the other contents were in typed format and standard to all the previous acknowledgment notes. Luckily, the appellant provided two documents as her exhibits bearing her signature which she does not dispute. These are the acknowledgment note dated 8th January 2016 and the one dated 4th April 2018 when she collected her security. In that case, the court is entitled to look at the signatures appearing thereon as those of the appellant, and compare them with and see whether they so closely resemble the ones on the disputed documents and determine whether they appear to have been made by the same hand. I have done so and I am satisfied and find that indeed the signatures for the appellant appearing on her two documents are so similar to those appearing on the acknowledgment note dated 6th July 2016 and all the other acknowledgment notes so as to lead to the conclusion that they were made by the same hand, that of the appellant. 32. Moreover, the advocate in whose offices the acknowledgments were signed confirmed that they were genuine and denied that that they were forgeries. 33. From the foregoing analysis of the evidence, it follows that the appellant’s allegations that the acknowledgment note dated 6th July 2016 was forged by the respondent and that in fact the respondent never advanced her the loan as evidenced by that acknowledgment note could not be believed. I am satisfied that the learned trial magistrate reached the correct finding on that issue. 34. Consequently, I find that all the acknowledgments of indebtedness were duly made by the appellant and the signatures appearing thereon were hers which she made consciously understanding the terms thereof. 35. Learned counsel for the appellant has stressed the fact that the only money advanced to the appellant was the KShs 210,000/= as per the acknowledgment noted dated 8th January 2016. That cannot be true in view of the appellant’s own evidence that she continued to take further loans from the respondent. 36. Moreover, there is an acknowledgment note dated 21st January 2016 which shows that the respondent advanced the appellant another loan of KShs 220,000/= which was before the date of 7th February 2016 when, according to the appellant, she cleared her earlier loan of KShs 210,000/=. Would that then mean that this subsequent advance was made before she cleared the earlier loan? The appellant said further that after she cleared the sum of KShs 210,000/= she took more but smaller loans from the respondent. She did not however have evidence of these smaller loans unlike the respondent who had acknowledgment notes for all the loans advanced to the appellant. 37. The appellant did not produce any documentary evidence such as bank deposit slip, mobile money transfer document or acknowledgement of cash received by the respondent to show how she repaid the acknowledged loan of KShs 210,000/=. Under section 109 of the Evidence Act, the appellant had the evidential burden to prove that she had repaid the loan. 38. However, and to the appellant’s benefit, the fact that the respondent continued to advance her more loans as per the acknowledgment notes, or even as per her own evidence that he was advancing her small loans, meant that indeed she was servicing her loans, at least in a manner acceptable to the respondent, before he could advance her more. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18320/eng@2025-11-17 6
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39. The respondent stated in cross-examination that the appellant was taking top-up loans before completing the prior ones. Learned counsel for the appellant submits that there was no evidence of the loan being topped up, his focus being on the KShs 210,000/=. That submission is not correct because the appellant’s own evidence was that she continued to take up what she termed as small loans from the respondent. Secondly, the respondent produced the various acknowledgment notes signed by both the appellant and the respondent of the loans taken by the appellant from him. 40. I am inclined to believe that indeed the position was as stated by the respondent that the appellant was taking top-up loans which is in line with the appellant’s evidence that she was taking smaller loans of KShs 50,000/= or thereabouts. So that whereas she was servicing the loans, she would take up a further small loan before completing payment of the outstanding amount. With interest of 30% per month being applicable, it was causing the outstanding amount to increase exponentially. For that reason, it was not, as learned counsel would wish this court to believe that the total amount outstanding would have been KShs 1,700,000/=. It was not a matter of simply adding what was indicated in the acknowledgment notes, as per the table above, to find out what was the full indebtedness of the appellant to the respondent. That table represents a progression of the loans, unfortunately without repayments and new advances being shown because neither of the parties adduced the relevant evidence to that effect. 41. So that, from the appellant’s own evidence that she continued to take small loans from the respondent, it appears that they would sign a fresh acknowledgment of indebtedness, not because she had taken a full loan of the amount indicated in the acknowledgment note, but of the outstanding amount plus the new advance. I am inclined to believe that from those transactions, after obtaining the last advance that caused the outstanding amount to rise to KShs 520,510/=, the respondent asked for a security and the appellant provided the husband’s land title deed. As found above, that was on 6th July 2016 as per the last acknowledgment note and not 8th January 2016 as alleged by the appellant. It would appear that from that point, no further advances were made to the appellant. On her part she never repaid what was outstanding and thus the figure of KShs 520,510/= claimed by the respondent. 42. The appellant’s main defence to the indebtedness was that before the title deed was released to her from the advocate’s firm, one Kinyua, a clerk in the advocate’s firm and who was also the one who had prepared the acknowledgment notes, did calculations and confirmed that she had cleared repayment of the loan. The same was returned to her and she signed the acknowledgment note dated 4th April 2018. 43. I note that the advocate confirmed in his evidence that indeed, Kinyua was the one preparing the acknowledgment notes under his instructions. Kinyua was however not made available as a witness by the appellant to confirm the appellant’s assertion that the title deed was only released to her after the parties confirmed that the loans had been repaid in full. 44. The appellant said that upon being served with summons, she took accounts with the respondent who confirmed that she did not owe him any money. He promised to withdraw the case but never did. When she turned up in court after execution was levied against her, the court directed them to take accounts once again. They did in the presence of the respondent’s advocate and it was agreed that she did not owe the respondent any money. That was when she demanded the release of her title deed and that was done whereupon she signed the acknowledgment dated 4th April 2018 produced before the trial court as exhibit. 45. When asked in cross-examination whether the loan had been repaid in full, the advocate said that he was not aware. He did not deny that he had returned the security to the appellant, but he said he could not tell whether she had repaid the loan in full or not. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18320/eng@2025-11-17 7
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46. Moreover, that acknowledgment note was only signed by the appellant and not the respondent, unlike all the previous ones. There is a witness appearing thereon as Joyce Wambui Chomba of ID No. 28686567 who also was not made available by the appellant to confirm her said allegations. 47. The fact that the respondent was not party to that acknowledgment and him not being the one who released the title deed to the appellant means that he cannot be held to have agreed that the land title deed be released because he was satisfied that the appellant had repaid him all his money. In any case, the contents of that note do not indicate that the title deed was being released as acknowledgment of the appellant having repaid her entire loan with the respondent. It only indicates that the title deed had been released to the appellant and the advocates firm was no longer holding it. Nothing therein indicates that it was being released as acknowledgment of settlement of the debt. 48. The allegation that the parties took accounts and established that the appellant did not owe the respondent any money are not supported by evidence of documents of such accounts being produced before court. If that was the case, why didn’t the parties do an acknowledgment as they would do on the occasions of borrowing the money? These lacunae create a doubt in the assertions made by the appellant to counter the evidence by the respondent. 49. The appellant testified that the court directed them to go and take accounts. Learned counsel for the appellant submitted that the respondent failed to obey the court order to that effect. I have read the proceedings and I do not find such order therein. 50. From the foregoing analysis, it is apparent that the appellant failed to dislodge the evidence by the respondent that he had advanced loans to her making a total of KShs 520,510/= as at 6th July 2016 and that she had failed to repay that money. 51. On the second issue of whether the interest rate of 30% per month was unfair, unjust and unconscionable, the appellant based her submission on the assertion that the respondent was a money lender and had fleeced many other people in a similar way and he had filed several cases similar to hers to recover the money. 52. There is no doubt that shylock business, as appears to have been the case herein, is illegal under the Banking Act, as well as the Micro Finance Act and the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022, which require that any person or institution conducting the business of lending money must be licensed by the relevant authorities, such as the Central Bank of Kenya (CBK). 53. However, allegations without evidence to substantiate them cannot hold much water. Not one single person to whom the respondent had treated in a similar manner was called to testify to that assertion. No document in the form of a court case where the respondent had sued other people in a similar way was made available. When the respondent gave his testimony, those issues were not put to him to confirm or to deny. 54. On the issue of the terms of the contract being unconscionable, it was held in the case of Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] KECA 223 (KLR) “ It is inimical for courts to limit freedom of contract on the grounds of unconscionability. Sir George Jezzel, Master of Rolls, in Printing & Numerical Registering Co. v. Sampson (1875) L.R. 19 Eq. 462, 465 said:“ ...if there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18320/eng@2025-11-17 8
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contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice". 55. Learned counsel for the appellant has put up a strong case on appeal in support of the appellant’s plea in defence that the terms of the contract with the respondent were skewed in the respondent’s favour and unconscionable. He has cited the following cases to support his arguments: Margaret Njeri Muiruri v Bank of Baroda (Kenya) Limited [2014] KECA 319 (KLR) where the Court of Appeal held that whereas it is not for the Court to rewrite a contract for the parties: “ Nevertheless, courts have never been shy to interfere with or refuse to enforce contracts which are unconscionable, unfair or oppressive due to a procedural abuse during formation of the contract, or due to contract terms that are unreasonably favourable to one party and would preclude meaningful choice for the other party. An unconscionable contract is one that is extremely unfair. Substantive unconscionability is that which results from actual contract terms that are unduly harsh, commercially unreasonable, and grossly unfair given the existing circumstances of the case (See Black’s Law Dictionary, 9th Edition, Gardner, Ed.).” 56. In Danson Muriuki Kihara v Amos Kuthua Gatungo [2012] KEHC 1099 (KLR) the High Court found an interest rate of 50% per month charged by the appellant against the respondent on a loan of KShs 40,000/= to be unconscionable and agreed with the trial court that it was correct in declining to accept such interest as claimed by the appellant. 57. From the foregoing decisions, it is clear that when circumstances permit, courts will not hesitate to strike down contractual terms that are unconscionable. 58. This court is well aware of the position as stated by the Court of Appeal in the case of LTI Kisii Safari Inns Ltd & 2 others v Deutsche Investitions-Und Enwicklungsgellschaft (‘Deg’) & others [2011] KECA 1 (KLR) that: “ The equitable rule is that if the borrower is in a situation in which he is not a free agent and is not capable of protecting himself, a Court of Equity will protect him, not against his own folly or carelessness, but against his being taken advantage of by those in a position to do so. In Vanzant v Coates. [1969] 14 D.LO.R. 256 it was held that the transaction would, in the foregoing circumstances be rescinded. The traditional view that “if people with their eyes open wilfully and knowingly enter into unconscionable bargains, the law has not right to protect them”- as held in Fry v Lane 1888 40 Ch. D 312 – has long been altered. Also I would think that this old traditional view cannot any longer hold ground after the enactment of the new Constitution and the coming into effect of the new Civil Procedure Regime which introduced the principle of “overriding objective” which require all courts to swing its gates wide open in terms of being broadminded on the issue of justice in the context of the circumstances before it. The position in England in cases involving inequality of bargaining power was succinctly stated by Lord Denning M.R. in Lloyds Bank Ltd vs Bundy [1975] Q.B. 326 and Schroeder Music Publishing Co vs Macanlay [1974] 1 W.L.R. 1308, when he said that by virtue of it, the English law gives relief to one, who without independent advice, enters into a contract upon terms which are very unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18320/eng@2025-11-17 9
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or desires, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other. 59. The learned trial magistrate believed the respondent’s evidence. 60. On who to believe between the parties, this court should ordinarily defer to the findings of the trial court which had the advantage of hearing the witnesses testify, assess their demeanor and come to a conclusion of who between the was telling the truth. I am guided by the case of Makube v Nyamiro [1983] KLR 403, where the court stated that; “ … a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.” 61. And in Kiruga v Kiruga & Another [1988] eKLR the court reiterated the principles above. Apaloo JA stating thus at pp 22: “ An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong.” 62. The cited decisions on the issue of unconscionable contract terms were not brought to the attention of the learned trial magistrate. I believe that if they had, she would have arrived at a different decision on the issue of interest charged by the respondent. 63. I therefore find that the learned magistrate erred in her finding that the rate of interest of 30% per month was proper and applicable in the circumstances of this case. That aspect of the judgment has to be set aside and is substituted with a finding that the amount payable is with interest at court rates from the date of judgment. 64. Consequently, I find that the respondent was able to satisfy the trial court and the learned trial magistrate was correct when she arrived at the decision that the respondent was entitled to the KShs 520,510/= as money due and owing from the appellant in the form of a loan. The appellant has not showed that she repaid the loan. 65. With respect to the interest of 30%, I have no difficulty in finding that the same was exploitative and as held by the High Court in the case of Musyoka v Wambua [2022] KEHC 17278 (KLR) cited by the appellant, this court cannot be used to enforce the same. The appellant will therefore only be liable to pay the sum of KShs 520,510/= with interest at court rates from the date of judgment. 66. Consequently, I find that the appeal fails on the issue of the sum of KShs 520,510/= being payable by the appellant to the respondent and the trial court’s decision on the same is affirmed. However, on the aspect of interest the trial court’s decision is set aside and substituted with an order that the interest payable is at court rates from the date of judgment. 67. Each party will bear its own costs of the appeal. 68. Orders accordingly. DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM TEAMS THIS 17TH DAY OF NOVEMBER 2025. ANDAYI W. F. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18320/eng@2025-11-17 10
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JUDGE In the presence of: Kemunto (Ms) for the Appellant. Momanyi for the Respondent. Ummu h/b for Job: Court Assistant. ANDAYI W. F. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18320/eng@2025-11-17 11
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