Alio Ibrahim Haji v Joshua Maingi Muguna

3. b. The funds held in account number 06xxx be shared equally between Alio Ibrahim Haji and Joshua Maingi Muguna. The funds to be shared after the expense and statutory deductions are paid. c. The plaintiff to have costs of the suit. Aggrieved by the said judgment the appellant filed a memorandum dated the 8th of February 2024 which set out 4 grounds of appeal which are prolix and repetitive. They are as follows; a. That the learned Trial Magistrate erred in law and fact by holding to the party is hearing do share the money subject to the case equally without any basis or reason. b. That the learned Trial Magistrate erred in law and in fact by failing to take into account the agreement entered into by the parties and the judgment with effect is to rewrite the agreements again between the parties. c. That the learned Trial Magistrate erred in Law and by refusing to read the wording or the agreements dated 10th May 2011 and the other dated 6th February 2018 hence making an erroneous judgment. d. That the entire Judgment is against the weight of evidence. 4. It was the appellant’s prayer that the Appeal be allowed, the said judgment of the subordinate court be set aside and Judgment be entered against the respondent as sought in the lower court. The appellant also sought the costs of the appeal and the lower court suit. 5. The Appeal was canvassed through written submissions. Appellant’s Submissions 6. The Appellant submitted that there were two agreements that were made and signed by the two parties, namely the agreement dated the 10th of May 2011 and the agreement reached on 6th February 2018. That the first agreement involved three people and the second only involved the parties herein. That in the first agreement the parties were to share their profits equally but in the second the respondent was only to get 10% of what was in the bank account. The appellant faulted the trial for not making a finding as per the terms of this agreement and sought that being a first appeal this court re-evaluates the evidence and allow the appellant’s claim. Respondent’s submissions 7. The respondent submitted the main issue for determination was whether the appellant was entitled to the funds held in the account less 10% which amount was to be given to the respondent. That this honorable is called upon to make a determination on whether or not the money held in family bank account number 06xxx should be released to the appellant. That the appellant in his testimony claimed that; i. The respondent and one Dorothy Muthoni Ikira are no longer his business partners. ii. That the monies held in the said account were his monies and that the court should order the bank to unfreeze the account to enable to enable him access the money. iii. That the respondent was his partner but there was a bitter fallout and that he continued running the business alone. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/402/eng@2026-01-26 2

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iv. That he secured tenders in the name of the firm and deposited the proceeds in the joint account held by himself and the respondent. 8. The respondent’s Submission was that Josma Electro Services was his sole business that the appellant was trying to illegally take over. 9. Citing Section 107(1) of the Evidence Act, the respondent submitted that the onus lay on the appellant to prove that the partnership was dissolved. That it was expected of him to avail tangible proof that he was running the business alone and that he was securing the tenders and incurred expenses as a result. That it was expected that the contracts secured during the period in which he claimed that the respondent was not his partner would be tabled but this did not happen. That the agreement dated the 10th of May 2011 contained a termination clause of three month’s notice and such notice was not produced in court. That it is safe to conclude that the argument between the parties subsists and the same is binding upon them. 10. The appellant cited the case of National Bank of Kenya Limited v Pipe Plastic Samkolit (K) Ltd (2011) eKLR where the Court of Appeal held that a court cannot re-write a contract between the parties and that such parties are bound by the terms of their contract unless coercion, fraud or a new influence are pleaded and proven. Also cited was Pius Kimaiyo Langat v Cooperative Bank of Kenya (2017) eKLR. 11. It was further submitted that the agreement of 6th February 2018 did not amend or nullify the earlier agreement of 10th May 2011 and therefore the latter stands. 12. The appellant urged the court to find that the appeal lacks merit and dismiss it with costs. Analysis & Determination 13. Being a first appeal, this court has a duty to re-evaluate the case, and come up with its own conclusion as was held in Jabane v Olenja, [1986] KLR 661, Selle v Associated Motor Boat Company Limited [1968] EA 123 and Peters v Sunday Post [1958] EA 424. 14. The standard of proof in civil cases is on a balance of probability. In Miller v Minister Of Pensions 1947 All ER 372, Lord Denning puts this standard in the following terms: “ That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in criminal cases. If the evidence is such that the tribunal can say: We think it more probable than not; the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case is which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.” 15. In James Muniu Mucheru v National Bank of Kenya Ltd CA Civil Appeal No 365 of 2017 [2019 eKLR, the Court stated as follows: “ Indeed, it is settled law that in civil cases the standard of proof is on a balance of probability. This is in effect to say that the Courts will make a finding based on which party’s version of the story is more believable.” 16. Section 107 of the Evidence Act states; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/402/eng@2026-01-26 3

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17. 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.” Section 109 further provides that: “ The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is proved by any law that the proof of that fact shall lie on any particular person.” 18. In East Produce Kenya Limited v Christopher Astiado Osiro [2006] eKLR, the court reaffirmed the position in law that he who alleges negligence bears the burden of proof. 19. The appellant told the trial court that he got into an agreement with respondent and Dorothy in 2011 and that they opened the subject bank account. That in 2017 Dorothy withdrew from being a signatory to the account. That thereafter she and the respondent disappeared and left him running the business alone. That in the process he got several tenders and money was paid into the said account. That the respondent claimed 10% of the money deposited into the account despite not doing any business. That when he refused to pay, the respondent reported that there was suspicious activity in the account. That among the alleged activities was that his signature was forged, which information was false and led to him being charged in court with the offence of giving false information to a public officer in criminal case 1290 of 2012. The appellant further stated that since all the money in the said account accrued when he was operating the said business alone, then he was the only one entitled to the said funds. It was for this reason that he termed the freezing orders unnecessary and sought to lift them. 20. The respondent testified the appellant was his business partner pursuant to an agreement dated 10th May 2011. That the said partnership collapsed as a result of disagreement between them. That he did not pump any money into the business. He denied that he is the one who instructed the bank to freeze the account. That when the parties went to the police, he agreed to take 10% of the monies in the account. That Josma Electro Services was his company and that the appellant was trying to take it over illegally. 21. As correctly submitted by the respondent, the court cannot re-write a contract between parties, save for situations cited in the authorities referred to earlier. 22. It is not in dispute that the parties entered into a written agreement dated 10th May 2011. Thereafter a dispute arose between them. 23. It is important to note that the trial court was not asked by any of the parties to determine the terms of the contract between them. What the appellant had sought in his plaint was an order lifting the freezing of the account in question. 24. In my view, the trial court went over and above what it was asked to determine. It should have restricted itself to the order freezing the account and left out other issues not pursued by either party. 25. In that respect, order number (b) of the judgement was unnecessary. The trial court ended up falling into the pit that it had wanted to avoid, that of re-writing the contract between the parties. 26. For the foregoing reasons, I find that there are sufficient grounds adduced to set aside order No. (b) of the Judgment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/402/eng@2026-01-26 4

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27. In his evidence before the trial court, the respondent denied that he was the one who asked for the account to be frozen. That evidence must be taken with a pinch of salt, since it is very clear that he was the one who instigated the said freeze, after a dispute over payment. 28. With such testimony by the respondent himself, the court finds that the order freezing the account cannot be sustained. 29. In the end, I find that this appeal partly succeeds. The following orders do issue; 30. a. Order (a) of the judgment of the lower court is upheld. b. Order (b) of the said judgment is set aside in its entirety. c. Each party is to bear its own costs of this appeal. It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 26 TH DAY OF JANUARY, 2026. H. M. NYAGA, JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/402/eng@2026-01-26 5

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