Cvinar v Onkendi (Civil Appeal E276 of 2025) [2026] KEHC 7706 (KLR) (4 June 2026) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI CIVIL APPEAL NO. E276 OF 2025 AMANDA ELIZABETH AWORUWA CVINAR ………………..……………………………APPELLANT VERSUS KELVIN ONKENDI ……………………………………………..……………………………RESPONDENT (Being an Appeal from the Judgment delivered on 20th June 2024 by the Honourable DS Aswani in Milimani Civil Suit No. E9680 of 2023) JUDGMENT 1. Every dog has its day. So the saying goes. Hopefully, some may add, that day is in Court. That thought came to mind when the Respondent in his written submissions invited this Appellate Court to consider the logic illustrated in one of Aesop’s timeless fable *‘The Dog and the Shadow’*. In the story, a dog carrying a piece of meat sees its reflection in the water and, believing the reflection to be a larger piece, drops the real one while attempting to seize what it never truly possessed. In the end, it loses everything by reaching beyond what was already in its hands. 2. The Appellant advanced the Respondent an amount of United States Dollars Seven Thousand One Hundred (USD 7,100) on or about 20th June 2023 through a contract termed Loan Agreement dated 20th June 2023. The said amount was to be repaid within thirty days from the date of the Agreement with a 10% interest levied in the event the loan agreement exceeded thirty days. Further, if the Respondent did not pay within sixty days, they would be considered in default and legal recourse could be commenced 3. The amount was disbursed the following day on 21st June 2023 and the Appellant claims that the amount was never repaid. This precipitated the action filed at the Small Claims Court at Milimani Nairobi vide Claim No. E9680 of 2023 in the Statement of Claim dated 13th December 2023. 4. The Respondent filed a response to the Claim in which he stated that he did not owe the Claimant any money and then went on to list the reasons why he did not owe the money. It is necessary that I state these reasons *in toto* as this is the gravamen of the dispute before the Court. 5. The Respondent stated his account as follows: 6. That the Appellant lent the Respondent the USD 7,100 for business purposes as per the Contract dated 20th June 2023. 7. That the Agreement was not in isolation as the same was connected to a subsequent Agreement between the parties dated 13th July 2023 for another Loan for United States Dollars Thirty Thousand (USD 30,000) which was to be loaded to the subsisting Loan for United States Dollars Seven Thousand One Hundred (USD 7,100). 8. That there was a security offered for the consolidated amounts which security was motor vehicle Registration Number KCQ 185Z of the model Land Rover Discovery. 9. That the Appellant had intimated that they needed a security which was two times the Loan amount so that in the event of default they could liquidate. 10. That the Appellant is still holding to the Security that is worth United States Dollars Sixty Thousand (USD 60,000) and thus the Respondent does not owe the Appellant the sum of United States Dollars Seven Thousand One Hundred (USD 7,100) as the Appellant has exercised her rights and taken possession as per the second Loan Agreement and Section 67 of the Movable Property Security Rights Act. 11. This is where the Respondent’s analogy of the Dog and the Shadow came in as he stated that the Appellant in the present case found herself in a similar position. She already holds full possession of the motor vehicle provided as security, without demonstrating that its value fell short of extinguishing the loan. Instead of realizing that security or proving its insufficiency, she seeks to obtain a second remedy additional monetary payment without surrendering or accounting for the first benefit. To grant such relief would allow the Appellant to claim both the meat and the reflection, contrary to the foundational legal principle that a party cannot receive double satisfaction for the same debt. 12. When the matter came up before the Resident Magistrate on 6th February 2024, Counsel for the Respondent indicated that they had filed a Preliminary Objection dated 18th January 2024 on the basis of pecuniary jurisdiction"; as United States Dollars Seven Thousand One Hundred (USD 7,100) was in excess of Kenya Shillings One Million which was the limit for the Small Claims Court. This was resolved with Counsel for the Appellant indicating that they had waived any amount in excess of Kenya Shillings One Million. 13. On 17th April, 2024, the parties agreed before the Magistrate to proceed under section 30 of the Small Claims Court Act that states: *Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.* The Appellant and Respondent duly filed their Submissions dated 16th May 2024 and 24th May 2024 respectively before the Small Claims Court and judgment was reserved. 1. In the Judgment dated 20th June 2024, the Hon. D. S. Aswani found in favour of the Respondent and dismissed the claim. He stated that the Court had not found that the initial agreement of 20th June 2023 had been expressly varied by the agreement of 13th July 2023. However, the email of 6th August 2023 that seemed to tie the loan to the security of the car was not controverted by the Appellant, according to the Magistrate. Neither was the claim that the value of the car offered as security being double the value of the loan controverted. To quote the Judgment, ‘the claimant was simply mute on the issue’. 2. The Appellant did not agree with the decision of the learned Magistrate and approached this Appellate Court on the basis of these nine grounds. a) That the learned adjudicator erred in law and fact by holding that the Claimant had been fully compensated through possession of the security (motor vehicle KCQ 185Z), without sufficient evidence of valuation, realization, or consented forfeiture of the same. b) That the adjudicator failed to appreciate or apply the provision of section 68 of the Movable Property Security Rights Act, which requires exhaustion of the realization mechanism or demonstration of loss before the creditor’s rights are barred. c) That the trial court erred in law and fact by failing to consider that the claim before it was based on a distinct and independent agreement dated 20th June 2023 involving a loan of USD 7,100, separate from the subsequent agreement dated 13th July 2023. d) That the adjudicator misapprehended the evidence and the law by treating the security as absolute repayment rather than as collateral, contrary to the principles that possession does not extinguish a liquidated monetary debt unless followed by lawful realization and an accounting. e) That the court erred in failing to give due weight to the express terms of the agreement dated 20th June 2023, which stipulated payment timelines and default clauses, none of which were controverted by the Respondent. f) That the court erred by elevating the Respondent’s equitable defence of unjust enrichment above the Appellant’s enforceable contractual rights, thereby subverting the supremacy of express contractual terms. g) That the adjudicator erred in law by failing to recognize that any dispute regarding the 13th July 2023 contract and related collateral vehicle was sub-judice in the Chief Magistrate’s Court Case No. E779 of 2023, and therefore irrelevant to the determination of the instant claim. h) That the adjudicator erred in law by shifting the burden of proof onto the Appellant to disprove the realization of security, contrary to sections 107-109 of the Evidence Act, which places the burden on the party asserting payment or discharge. i) That the judgment was against the weight of evidence and the applicable law and amounted to a miscarriage of justice. 1. This matter went through the process of leave being granted to file it out of time and my sister Judge Lady Justice Wamae Cherere exercised that discretion judiciously through the Ruling dated 8th July 2025. 2. Subsequent to that, this matter has been before the Court on10th June 2025, 26th June 2025, 20th August 2025, 9th October 2025, 20th November 2025, 27th January 2026, 17th February 2026, 4th May 2026 and 20th May 2026. 3. In many of these instances, the Court noted that the Trial Court Record was missing and ordered that the same be availed. Indeed, on 9th October 2025, there was even an order that the file be brought up on 31st October 2025 to confirm if the Record had been availed before the formal mention of the matter in Court on 20th November 2025. 4. As it stands, I am still unable to see the Trial Court record as the same is not before me. Yet the Court as a first instance appellate Court has an obligation to examine the Record and evidence adduced before determining the Appeal. In ***Abok James Odera t/a A.J Odera & Associates -v- John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR*** the Court of Appeal stated thus: ***“This being a first appeal, we are reminded of our primary role as a 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.”*** This was the same position in ***Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123,*** where the Court of Appeal also stated that at the first appeal, the court is mandated to re-evaluate the evidence that was presented before the trial court and form its own conclusion, but bearing in mind that it did not have the benefit of seeing and hearing the witnesses as the trial court did. 1. Several averments have been made before this Appellate Court about the evidence that was adduced. It is also discernible from the Record of Appeal at page 12 that there were the following list of documents from the Appellant: 2. Copy of agreement dated 20th June 2023 3. Copy of bank transfer receipt 4. Copy of demand letter dated 23rd August 2023 Similarly, the Record of Appeal bears at page 20 that the Respondent was relying on these documents listed in the List of Documents: 1. Agreement dated 13th July 2023 2. Email of 6th August 2023 3. SMS/WhatsApp dated 15th August 2023 4. There is also mention of another Civil Case that was filed at the Magistrates Court most probably touching on the second disbursement of funds from the Appellant to the Respondent. This was identified in the response of the Statement of Claim at paragraph 3 (xiii) and the Witness Statement of Kelvin Onkendi at paragraph 10 as Nairobi Chief Magistrates Court Suit No. E779 of 2023 with the same parties. 5. There were already certain concessions that had been made in respect of the advanced sum of United States Dollars Seven Thousand One Hundred (USD 7,100) and what is contentious is whether this amount was conjoined with the other loan of United States Dollars Thirty Thousand (USD 30,000) and how the same should be treated – as either paid by the security or payable before the realization of the security. 6. With the missing documents from the trial court, it is not possible to form an opinion on whether or not the trial Magistrate was correct in the interpretation of the documents that were presented before them. Yet, it is also acknowledged that the Constitution of Kenya under Article 165 grants powers to the High Court to exercise the supervisory functions over the subordinate court. 7. Article 165 (6) of the Constitution states that: *“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”* Article 165 (7) on the other hand also states that: *“For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”* 1. The proceedings are before the High Court but there are missing documents and therefore the complete trial court record is incomplete. 2. However, in exercise of the powers of the High Court as per Article 165(7) it appears that the ends of justice will be met by consolidating the two matters that were in the trial Court and in the Magistrates Court so as to prevent one party raising issues that touch on the matter and the other party claiming it is sub judice as has happened in the submissions of the Appellants where they state at paragraph 21 that the trial court disregarded the principle of sub judice, which principle bars a court from making pronouncements on issues that are pending and alive before other competent judicial bodies. To quote Counsel verbatim, ‘The question of as to the enforcement, rights and responsibilities accruing from the 13th July 2023 are pending determination in the case No. E779 of 2023’ 3. Unfortunately to follow the analogy about the dog, this would mean that not every dog will have its day in appellate Court as the trial court awaits once more. **Orders** 1. Consequently, the Court notes that there would be no need to proceed with this Appeal since the trial court record is unavailable and the missing documents are so weighty in how their interpretation will determine the appeal that to proceed without them would be a greater injustice to the parties. 2. For justice to be done and to be seen to be done I set aside the judgment entered on 20th June 2025. 3. This matter shall be remitted to the Chief Magistrate (in charge) Milimani Commercial courts for consolidation of the matter with Nairobi Chief Magistrates Court Suit No. E779 of 2023 and the subsequent allocation of this file for hearing and determination before the Magistrate handling Court Suit No. E779 of 2023 without delay . 4. This Ruling has determined this appeal and the appeal file is now closed. 5. Costs shall be in the cause **DATED AND DELIVERED ONLINE AT NAIROBI THIS 4TH DAY OF JUNE 2026.** **BENARD WAFULA MURUNGA** **JUDGE** Delivered on virtual platform in the presence of Muriuki for the Appellant Anyona for the Respondent Kevin Babu - Court Assistant