Isack Isika Musiva & 2 others v Kale Matuku

4. The respondent filed a statement of defence dated 23/5/2022 and contended that she was advanced Kshs. 5,000/=. That she had made previous payments of Kshs. 10,000/= leaving a balance of Kshs. 3,000/=. She urged the court to dismiss the suit. 5. The suit proceeded before the learned Magistrate and she rendered her Judgment. The learned magistrate allowed the claim of Kshs. 3,000/= which the respondent admitted and awarded costs to the appellants. 6. The appellants were dissatisfied by the said Judgment and filed the appeal which is based on the following grounds in the memorandum of appeal: 1. The learned trial magistrate erred in law by failing to allow the appellants suit who are the representatives of other members of Mbaa Kitumbi clan, and who have no other interest other than claiming the amount used by the members and he ends on awarding Kshs. 3,000/= with costs of the suit. 2. The learned trial magistrate erred in law and practice when he failed to consider the evidence adduced by the three appellant at the he allow (sic), the suit together with interest and costs of the suit. 3. The learned trial magistrate erred in law and practice when he delivered judgment based on the respondent defendant statement of defense dated 23/5/2022 that has no document filed to support the evidence. That the respondent stated she was owned (sic) to the appellant a balance of Kshs. 3,000/ with cost of the suit. 4. The learned trial magistrate erred in law and practice when he failed to understand that this matter has gone so many stages in the villages before it came to court and in those stages the appellant on behalf of the other members are incurring expenses and the learned magistrate ignored the agreement they have made and called the agreement purported agreement and he proceeded to delivery the judgment based on the defendant statement that was not supported. 5. The learned trial magistrate erred in law and practice when he failed to read carefully the respondent/defendants statement of defense, that was stating that the respondent had attached a receipt of Kshs. 10,000/= and back. In 2021 the respondent has paid Kshs. 2,000/= and yet the respondent state that sue was advanced Kshs. 5,000/= all the statement was very contradictions and the learned magistrate proceeded to rely on the contradiction statement and he proceed to deliver the judgment base on it. 6. That, the leaned magistrate erred in law when he failed to consider the respondent had no witness to testify and support her evidence and he proceeded to rely on the respondent evidence which was not supported. 7. That, the supplementary of appeal to be filed on deceipt of proceeding. The appellants pray that the appeal be allowed, the judgment of the lower court be set aside and the appeal be allowed with costs. 7. The respondent opposed the appeal and stated that she was ordered to pay Kshs. 3,000/= which she was willing to pay but the appellants refused to accept the money. Appellant’s Case 8. PW1 Isaak Isika. He testified that they advanced the respondent Kshs. 5,000/= which attracted interests of Kshs. 500/= after three (3) months. The respondent paid Kshs. 2,000/= after three months https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19490/eng@2025-11-10 2

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and refused with the rest. They demanded Kshs. 24,915/=. He produced a demand letter of Kshs. 24, 915/= to show that they advanced a loan to her. He also produced a letter showing that she had committed to pay the amount. In cross-examination PW1 admitted that Kshs. 2,000/= was paid leaving a balance of Kshs. 6,000/=. That the amount on top is cost incurred. 9. PW2 Jane Mulekye Nzomo testified that the defendant was loaned Kshs. 5,000/= which she failed to pay. She was fined Kshs. 1,000/= as interest. 10. PW3 Meka Matheka testified that the respondent had their money amounting to Kshs. 5,000/=. She repaid Kshs. 2,000/=. The balance attracts interests. They demanded the money but she refused to pay. He money continued to attract interests. That before then she had borrowed Kshs. 4,200/=. The respondent paid part of it. Respondent’s Case 11. DW1 Kalee Matuku was the only witness in her case. She testified that she was given a loan of Kshs. 5,000/= out of which she refunded Kshs. 2,000/= at a clan’s meeting. They then took her to an advocate and she paid Kshs. 5,000/= as per receipts exhibit D 1(a), (b), (c). that she did not know what else they wanted from her. 12. In cross examination she testified that the balance was Kshs. 5,000/=. She paid Kshs. 2,000/= and added Kshs. 1,000/=. She denied that she signed exhibit P2. The appeal was canvased by way of oral submissions. Appellant’s Submissions 13. He submitted that he clan had a merry-go-round in 2018 where members would contribute and would borrow the money with interest. That the respondent was advanced Kshs. 5,000/= which she did not refund. In 2021 the money was Kshs. 6,000/= inclusive of interests. The respondent paid Kshs. 2,000/ = only and failed to pay the balance. She was arrested and incurred costs of Kshs. 14,615/=. That the Judgment of the leaned magistrate denied them Kshs. 21,915/=. They filed the appeal and urge the court to order that they are entitled to Kshs .21.915/= and costs. The respondent submitted that she was ready to pay the Kshs. 3,000/= but they refused. Analysis and Determination 14. I have considered the proceedings and the Judgment before the leanred magistrate and the grounds of appeal. The issue that arises for determination is whether the learned magistrate erred in awarding the appellants Kshs. 3,000/=. Secondly, whether the appeal has merits. This is a first appeal and the duty of this court has been laid down in various decisions of this court and the court of Appeal. The court of Appeal in the case of Abok James Odera T/A A.J Odera & Associates v Jon Patrick Machira T/ A Machira & Company Advocates the court stated that: “ …being a first appeal from the High Court we are reminded of our primary role as first appellate court, namely to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19490/eng@2025-11-10 3

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15. The court quoted Kenya Ports Authority v Kuston (Kenya) Limited (2009) 2 EA 212 where it had stated that: “ On a first appeal from the High Court, the Court of Appeal should reconsider the evidence evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by parties in the evidence.” 16. This court has a duty to analyze the evidence and evaluate it and make its own independent findings. This court is not bound by the finings by the learned magistrate, it has to make its own independent finding. The Civil Procedure Act lays down the duties and powers of the Appellate Court. Section 78 of the Civil Procedure Act provides as follows: “ Subject to such conditions and limitations as may be prescribed, an appellate court shall have power— (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require the evidence to be taken; (e) to order a new trial. (2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.” 17. The Section refers to the powers of an appellate court and allows the court to determine the case finally, remand a case, frame issues for trial or take additional evidence. The Section gives the appellate court broad powers to manage cases and providing for the key part of the appeal process. The appellants had filed a plaint demanding Kshs. 24,915/=. The law is trite that he who alleges must proof. That constitutes the legal burden of proof. 18. Section 107 of the Evidence Act provides: 19. “ (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. (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.” In civil cases, the burden of proof is on the plaintiff to prove their case to the required standard, that is on a balance of probabilities. In Eastern Produce (K) Ltd Chemomi Tea Estate v Bonfas Shoya (2018) eKLR stated: “ The burden of proof in civil cases on the balance of probability was defined in the case of Kanyungu Njogu v Daniel Kimani Maingi (2000) eKLR that when the court is faced with https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19490/eng@2025-11-10 4

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two probabilities, it can only decide the case on a balance of probability, if there is evidence to show that one probability was more probable than the other.” The incidence of legal burden of proof on matters which a party alleges lies with that party. 20. In Halsbury Laws of England Vol. 17 Para 14 it is stated: “ Incidence of legal burden … in respect of a particular allegation lies upon the party whom the substantial or the particular allegation is an essential of his case.” 21. The legal burden is on the party who would lose his case if he fails to discharge the burden. The appellants pleaded that the respondent was advanced Kshs.14,515/=. This claim was not proved at all the witnesses who testified stated on oath that she was advanced Kshs. 5,000/=. A party is bound by his own pleading. A pleading is an important piece of document as that is where a party’s claim is to be found and is what he pleads with the court to adjudicate between him and his opponent. 22. In Bullen & Leak and Jacob’s Precedents of Pleadings 12th Edition, Lodon, Sweet & Maxwell (The Common Law Library No. 5) the importance of pleadings is discussed. It is stated: “ The system of pleadings operate to define and demit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the two-fold purposes of informing each party without what is the case of the opposite party which he will have to meet before and at the trial and at the same time informing the court what are the issues between the parties which will govern the interlocutory proceedings before the trial and what the court has to determine at the trial.” 23. What the passage is discussing is stating that a Judge sits to determine the dispute presented him/her but not as an investigator. See Lord Denning in Jones v National Coal Board (1957) 2 QB 55. The importance of pleadings to a party’s case was stated by the Court of Appeal in Independent Electoral and Boundaries Commission and another v Stephen Mutinda Mule & 3 Others citing with approval. The decision of the Supreme Court of Nigeria in Adtoun Oladeji (N.I.G) limited v Nigeria Breweries PLC SC 91/2002 “ …it is now very trite principle of law that parties are bound by their pleadings and that any evidence lead by any of the parties which does not support the averments in the pleadings or put in another way which is at variance with the averments of the pleadings goes to no issue and must be disregarded….” In fact, that parties are not allowed to depart from their pleadings is on the authorities basis as this enables parties to prepare their evidence on issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.” 24. See also Dakianga Distributors Kenya Ltd v Kenya Seed Company Ltd. CA (2015) KECA 8570 KLR The learned trial magistrate was entitled to reject the evidence by the appellants as it did not in any attempt to prove what was pleaded in the plaint. The learned magistrate correctly held that there was insufficient evidence to support the claim of Kshs. 29.915/=. The finding is supported by what was on record. 25. I find that the appellants did not adduce evidence to support what was pleaded on the plaint. The appellants claimed a liquidated amount. The law requires that such a claim should be pleaded and proved with specificity. The claim of Kshs. 15,515/= was not specifically pleaded and proved. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19490/eng@2025-11-10 5

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appellant did not adduce any evidence to proof how this amount came about. The demand letter which was produced as exhibit 1 stated that Kshs. 14,515.00 was the amount of the defaulted loan. That the plaintiff had incurred Kshs. 5,400/= to follow the respondent to pay the debt dept and Kshs. 5,000/ = advocate charges. There was no demand of Kshs. 5,000/=. The witnesses statement stated that the respondent was advanced Kshs. 14,515/=. This was at variance with the evidence given by the same witnesses in court. I find that the appellants case was neither specifically pleaded nor proved. 26. I find that the Judgment by the learned magistrate cannot be faulted as it was based on the evidence adduced before her. The document produced as exhibit 2 by the appellant was rejected as it was in line with what was claimed in the plaint and yet it is dated prior to the filing of the plaint. It falls short of a document made in an advocate’s office as the said advocate has not witnessed it. 27. For these reasons I find that the appellants did not proof their claims to the required standards. They departed from their pleadings and failed to prove that they were owed the amounts claimed. Disposition 28. The Appeal is without merits and is dismissed with costs to the respondent. DATED, SIGNED AND DELIVERED AT KITUI THIS 10TH DAY OF NOVEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19490/eng@2025-11-10 6

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