Musyoka v Kilonzo (Civil Appeal E024 of 2024) [2025] KEHC 19513 (KLR) (19 December 2025) (Judgment) Neutral citation: [2025] KEHC 19513 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KITUI CIVIL APPEAL E024 OF 2024 LW GITARI, J DECEMBER 19, 2025 BETWEEN JOEL KYALO MUSYOKA ....................................................................... APPELLANT AND JUSTICAH MWIKALI KILONZO ..................................................... RESPONDENT JUDGMENT 1. The appeal arises from the Judgment issued in the Chief magistrate Court Mwingi Civil Suit No. 073/2022. In the suit the appellant was sued by the respondent who was claiming Kshs. 174,000/= from him which she had advanced to him vides a written agreement dated 22/1/2022. The money was supposed to be repaid within one month from the date of lending. The appellant failed to repay the money on its due date. The respondent instructed an advocate and a demand letter was written to the appellant. 2. Th appellant denied that he had entered the said agreement and averred that he would borrow money from the respondent from time to time and he repaid it and indeed over paid by Kshs. 24,034.00. he contended that if any money was owing, it was Kshs. 5,400/=. The learned magistrate found that the fact of the agreement was proved. The appellant paid Kshs. 47,000/= leaving a balance of Kshs. 127,000/= and accordingly entered Judgment for the respondent in the sum of Kshs. 127,000/= with interests at court rates and costs. 3. The appellant was dissatisfied with the said Judgment and filed this appeal based on the following grounds: 1. That the learned Chief Magistrate erred in law and in fact in failing sum up all the money received by the appellant from the respondent Mpesa transaction on 22/1/2022. 2. That the learned Chief Magistrate erred in law and in fact failing to sum up all the money the appellant sent to respondent through Mpesa transactions on 22/1/2022. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19513/eng@2025-12-19 1
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4. 3. That the learned Chief Magistrate entirely erred in law and in fact for failing to find the difference between what the appellant received from the respondent through Mpesa against what the respondent received from the appellant also through Mpesa transactions and eventually determine who owes who and by how much when all the Mpesa transactions of 22nd January 2022 were presented to the honourable court for verification and determination. 4. That the learned Chief magistrate graciously erred in law and in fact for upholding a forged and an undated agreement as a valid document whereas the amount of what the respondent send to the appellant through Mpesa transaction on 22/1/2022 doesn’t tally the contents of that forged agreement. The appellant prays that the court reviews the ruling of 13/3/204 and the decree. That the said ruling be vacated and he be awarded costs. The appeal was canvassed by way of written submissions. The respondent’s Case 5. She testified that she entered the agreement with the appellant on 22/2/2022 and she advanced him Kshs. 174,000/=. He did not repay. The respondent urged the court to order the defendant to pay. She further stated that they had other cases. The Appellant’s Case 6. He testified that he respondent used to lend him money. On 22/1/2022 she lent him Kshs. 174,000/ =. On the same day he sent her Kshs. 168,000/=. He insisted that he did not owe her Kshs. 174,000/ =. He only owed her Kshs. 6,000/=. He testified that there was no agreement. He alleged that he was framed. In cross-examination, he admitted that he received Kshs. 174,000/= from the respondent and was to repay on the same date. 7. The learned magistrate held that the parties entered the agreement which they executed and was therefore binding on both parties. That no sufficient grounds were advanced to warrant revocation of the said agreement. He found as fact that the respondent received Kshs. 174,000/=. That the Mpesa statement showed that he repaid Kshs. 47,000/= leaving a balance of Kshs. 127,000/=. The appeal was canvassed by way of written submissions which I have considered. Analysis and Determination 8. This is a first appeal and this court has a duty to analyze the evidence adduced before the learned magistrate and come up with its own independent finding. This court has to leave room for the fact that it did not see or hear the witnesses when they testified and leave room for that. This was held in the case of Selle -vs- Associated Motor Boat Company Ltd. 9. I have considered the pleadings and the exhibits as well as the evidence adduced before the learned magistrate. The issue which arises for determination is whether the appellant breached the contract by failing to pay the respondent the money advanced to him as a friendly loan and under a written contract. The appellant admitted that he signed the contract. 10. In his statement of defence he had indicated that he had regularly borrowed money from the respondent which he repaid. The appellant had the burden to proof that he repaid the loan. Section 107 of the Evidence Act provides that he who alleges must proof. This is the legal burden which never shifts. The appellant did not discharge the burden to prof that he repaid the money as per the contract. The appellant was bound by the terms of the contract. The law is trite that courts enforce contracts but they don’t write contracts for the parties. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19513/eng@2025-12-19 2
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11. The appellant had the burden to proof that he repaid the loan. He did not discharge this burden. The Mpesa statement do not support his claim that he repaid the loan. He acknowledged that he had borrowed money previously from the respondent which he repaid. There was no evidence tender to proof that he paid the loan in question. 12. I find that the decision of the learned magistrate was well founded. I find no reason to interfere with it. I find that the appeal lacks merits and is dismissed. DATED, SIGNED AND DELIVERED AT KITUI THIS 19TH DAY OF DECEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE Appellant: I pray for 30 days stay of execution Order There be 30 days stay of execution HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19513/eng@2025-12-19 3
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