Jo Janssen v Anderson Kibaara

5. The matter proceeded by way of oral hearing. The trial court thereafter proceeded to render Judgement on 29/02/2022 in favour of the Appellant for Kshs. 130,000 being the balance after the set off of Kshs 280,000= for the mattresses, plus costs of Kshs. 30,000=. 6. The Appellant filed a Notice of Motion application dated 20/03/2024 seeking to have the Judgment of the court reviewed on the basis that he had found the receipts of the mattresses bought, and he could not produce them at the time of the hearing as he had lost his phone which had the receipts. 7. The trial court dismissed the application with the finding that the alleged new evidence was within the knowledge of the Appellant, and would have been presented if the Appellant did due diligence on the same. The application was dismissed with no orders as to costs. 8. Aggrieved by the finding of the Trial Court, the Appellant lodged a Memorandum of Appeal dated 29/04/2024 hence this Appeal. Though the appeal is indicated to be against the ruling of the court, from the contents of the Memorandum of Appeal and the submissions filed by the Appellant. 9. The Appellant prayed the appeal be allowed, the judgment of the lower court granting the Respondent a set off be set aside, and this court do enter judgment as per the Statement of Claim. The Appellant prayed for costs of the appeal. 10. Upon filing this appeal, this court directed that the appeal be disposed of by way of written submissions. Both parties complied and filed their rival submissions in support of their case. Analysis 11. Having considered the pleadings on record, the written submissions and the evidence on record, the issues for determination are; a. Whether the appeal has merits b. Who bears the costs 12. This being a first Appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a Trial Court, unlike the Appellate Court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. (see Peters vs Sunday Post Limited [1958] EA 424 and Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123) 13. It is not in dispute that a loan of Kshs. 700,000= was advanced to the Respondent by the Appellant. On one hand, the Appellant states that Kshs. 290,000= was paid leaving a balance of Kshs. 410,000 payable by the Respondent. On the other hand, the Respondent states that he had paid part of the loan. Through an oral agreement between the parties, he supplied the Appellant’s African wife with mattresses worth Kshs. 300,000= which amount was set off from the loan, hence leaving a balance of Kshs. 130,000=. 14. The court found that the parties had an oral agreement between them. The receipt of Kshs. 300,000= produced by the Respondent for Kshs. 300,000= being the mattresses supplied was admitted after it was found credible and trustworthy. The court considered the Kshs. 20,000= paid by the Appellant to the Respondent as per the Mpesa statement, thus offsetting Kshs. 280,00= in favour of the Respondent, leaving a balance of Kshs. 130,000= 15. I have perused through the documents relied on by the parties. The Appellant produced proof that the Respondent had paid a total of Kshs. 290,000= as per the statement in pg. 19 of the Record of Appeal. I have also perused the cash sale receipt dated 22012022 produced by the Respondent as proof that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19621/eng@2025-12-05 2

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he had supplied mattresses worth Kshs. 300,000= and the Mpesa statement showing the payment of Kshs. 20,000= by the Appellant. (pg. 28 and 29 of the Record of Appeal). 16. It is the evidence of the Respondent that the mattresses were supplied to one Lilian Achieng, the African wife of the Appellant. The mattresses were allegedly for Lilian’s new house. Without going into the merits or the demerits of the receipt produced, I find that these are 2 different contracts, which are distinct and for different purposes. 17. The first contract subject to this appeal was the friendly loan advancement. The second contract is for the supply of goods and which involved a third part, one Lilian Achieng. I find that these contracts forms an independent basis for filing a lawsuit, which requires proof, considering that the receipt in issue is in dispute. The Respondent is at liberty to file a claim against the Appellant and his wife for the payment of the supplied mattresses. 18. From the evidence on record, I find that the Appellant’s evidence had met the standard of proof and the claim ought to have been allowed as prayed. The appeal has merits and the lower court judgment allowing a set off is hereby set aside. 19. On the issue of costs, it is settled that the same follows the event. That is the import of section 27 of the Civil Procedure Act. The Appellant being the successful party, costs are hereby awarded. Determination 20. In the upshot, I make the following orders: a. b. The Appeal has merits and is allowed on the following terms; i. Judgment of the lower court is hereby set aside. ii. That the same is substituted with judgment in favour of the Appellant for Kshs. 410,000=. iii. Costs of Kshs. 30,000= awarded in the lower court is not disturbed. The costs awarded to the Appellant. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA ON 5TH DAY OF DECEMBER, 2025. ........................... HON. F. WANGARI JUDGE In the presence of; Mr. Muriithi Advocate hb for Mr. Mogaka Advocate for the Appellant NA by the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19621/eng@2025-12-05 3

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