https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10632

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CIVI APPEAL NO. E003 OF 2026** **ERICK OSUR APIYO………………………………..…………1ST APPELLANT** **AUSTINE ACHOLA………………………………...…………2ND APPELLANT** **GEORGE OWINO OGUTU…………………………………3RD APPELLANT** **VERSUS** **RICHARD OUMA JAMBA……………………………………RESPONDENT** **(Being an appeal from the judgement and resultant decree of the Magistrate’s Court at Siaya (Hon Mkala Jacob Punga (Adjudicator)) dated 23rd September 2025 in Siaya SCCCOMM No. E328 of 2025)** **BETWEEN** **RICHARD OUMA JAMBA……………………………………CLAIMANT** **VERSUS** **ERICK OSUR APIYO……………………………………1ST RESPONDENT** **AUSTINE ACHOLA………………………………...…...2ND RESPONDENT** **GEORGE OWINO OGUTU……………………………3RD RESPONDENT** **JUDGEMENT** 1. This is an appeal arising from the judgment and decree of the Small Claims Court at Siaya (Hon. Mkala Jacob Punga, RM/Adjudicator) delivered on 23rd September 2025 in Siaya SCCCOMM No. E328 of 2025. In that judgment, the trial court found in favor of the Respondent (then Claimant) against the Appellants (then Respondents) jointly and severally for the sum of Kshs. 853,174/= alongside statutory interest and disbursements assessed at Kshs. 7,000/=. 2. Aggrieved by the decision of the trial court, the Appellant moved this Court via a Memorandum of Appeal dated 22nd January 2026 wherein they raised the following grounds of appeal namely; - 3. The honourable magistrate erred in law and fact by holding that the respondent had proved his case on a balance of probability yet not a single exhibit was produced by the respondent in court in support of his averments, neither was any document(s) in form of exhibit(s) served on the appellants by the respondent. 4. The honourable magistrate erred in law and fact by entering judgment in favour of the respondent as against the appellants even when the respondent did not prove his case on a balance of probability, taking into account the conflicting evidence adduced in court vis avis the conflicting averments in his pleadings filed in court. 5. The honourable magistrate erred in law and fact by failing to appreciate the fact that the respondent never produced any evidence in court to prove that he was indeed an official and in fact, the chairperson of Kobare Boda Boda Self Help Group. 6. The honourable magistrate erred in law and fact by failing to appreciate the fact that the respondent never proved to court that he had the express authority to institute a claim/suit on behalf of Kobare Boda Boda Self Help Group. 7. The honourable magistrate erred in law and fact by failing to appreciate the fact that the failing to recognize the fact that the respondent did not discharge the burden of proof as to whether indeed the appellants were officials of Kobare Boda Boda Self Help Group. 8. The respondent did not produce any evidence in court to warrant the award of Ksh 853,174/- together with costs and interest. 9. The honourable magistrate erred in law and fact by not appreciating the fact that the suit filed by the respondent was in itself ambiguous. 10. That the honourable magistrate erred in law and fact by delivering an erroneous judgment thereby misinterpreting and misconstruing the facts of the matter and the legal principles applicable on the burden of proof in civil proceedings. 11. THAT the learned Magistrate erred in law and in fact by totally disregarding the fact that the audit was not done in the presence of the Appellants thereby occasioning a totally biased outcome denying the Appellants an opportunity to respond to audit queries. 12. THAT the learned magistrate erred in law and in fact in failing to consider that the Appellants were out of office and had handed over the office to the newly elected leaders thus could not be able to access the records in the office to sufficiently explain how the funds were appropriated. THAT the learned magistrate erred in law and in fact in allowing insufficient evidence by the respondent as the respondent failed to tender crucial documents like the bank statements to support the 3.This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See **Selle vs Associated Motor boat Co. Ltd [1968] EA 123.** 4. In the trial court, the Respondent’s case was that members expected a total share-out of roughly Kshs. 1.2 million from their collective contributions, welfare banking and loan interest dividends accumulated over the financial year 2024. On the appointed share-out date, the 1st and 2nd Appellants allegedly absented themselves. An intervention by the Sub County Social Development Officer led to a temporary freeze and an initial assessment showing a remaining bank balance of only Kshs. 587,799/= leaving an unaccounted deficit of Kshs. 853,174/= 5. The Respondent relied on an Interim Committee Financial Report signed by the group's interim executive and a General Auditor alongside regulatory letters from the Siaya Sub County Social Development Officer requesting police intervention for alleged financial mismanagement. 6. Conversely, the Appellants filed separate responses to the Statement of Claim. While they did not deny their status as former officials and trustees of the group's accounts, they vigorously contested the validity of the financial report produced. They contended that following their suspension, a joint audit was ordered by the Social Development Office involving both the old and incoming committees. Instead, the incoming committee proceeded to generate a standard report internally or unilaterally through their own choice of public auditor, failing to give the Appellants an opportunity to access group registers or explain how the capital funds were appropriated or lent out as active member loans. 7. **Richard Ouma Jamba (CW1)** was the Claimant and who testified that he lived at Rangala and was employed by the County Government as an administrative Secretary for Siaya County. He stated that his case concerned Chama money belonging to the Kobare Boda Boda Self-Help Group. He stated that on 19th December 2024, the group members were scheduled to receive their annual share-out which was generated from savings, development contributions and interest earned from loans given to members. On that day, members gathered at Kobare but while the Chairperson (Eric Osur) and the Secretary (Austine Achola) were present, the Treasurer (George Owino Ogutu) was absent. He testified that the money was unavailable and the members who were expecting a total of Kshs. 1,200,000/= did not receive their share-out. When members questioned the Chairperson and Secretary regarding the whereabouts of the Treasurer and the money, Mr. Eric Osur went to the department of social services to request intervention. Mr. Osur informed the members that the bank balance was Kshs. 587,799/=. The witness stated that after hearing the members' grievances, the officer in charge of the social department suspended the group officials and interim officials were appointed under which arrangement he became the interim Chairperson. The social department directed that the suspended officials be involved in the ongoing financial calculations giving them two weeks to present a report. He stated that Mr. Eric Osur and Austine Achola were present at the sub-county social office when they checked their signatures and discovered that Kshs. 853,174/= was missing. The Treasurer, George Ogutu was subsequently summoned to the social office to explain how the group would recover its money. Mr. Ogutu requested for 30 days to provide an answer but disappeared after that period and failed to respond to several phone calls. Consequently, the sub-county social department wrote a letter to the police for assistance. The OCS referred the matter to the DCI who instructed the group to provide an audit report. The group complied but the suspended officials refused to visit the DCI office when invited leading the DCI to advise that the matter be brought to court. The Claimant then produced his documents as exhibits CEX-1 to 5. On cross examination, the Claimant stated that the police told him that the 1st Respondent did not attend the meetings. He asserted that because the Appellants were the signatories to the group's accounts, money could not be withdrawn without their signatures. He noted that while some monies were not deposited, other monies were withdrawn. He confirmed that the audit covered the period from January 4th to December 2024 and that the 1st Respondent signed at the social development office. He added that as the Chairperson, the 1st Respondent would receive alerts on his phone and was present at the close of the financial year. He stated that the Chairperson had no authority to remove any member and noted that they tried calling the Treasurer but he could not be reached. The Claimant stated that internal and external audits were conducted with the internal audit being done in the 2nd Appellant's presence. He re-emphasized that three signatories had to sign for money to be withdrawn and stated that some money was not deposited while other funds were withdrawn without authority. The Claimant testified that at the social development office, the 3rd Appellant requested for 30 days. He stated that the 3rd Appellant was called for the audit on 18th March 2025 but failed to attend, did not go to the DCI office and failed to attend the initial internal audit meeting by the social development office. **8. Eric Osur Apiyo (RW1)** is the 1st Appellant herein and who testified that he lived in Kobare and worked as a boda boda rider. He stated that when the old officials and the interim officials parted ways at the social office, the social officer instructed them to conduct the audit together and advised them to find a qualified auditor. He stated that the interim chairperson later informed the members at a meeting that they had been referred for an audit and that each member would contribute Kshs. 400 for it. The members agreed to have the Kshs. 400 deducted. He was later served with a letter instructing him not to go to the office because investigations were ongoing. He claimed that he was never called or informed about anything during the conduct of the audit and only heard that it was completed. Upon receiving a phone call, he went to the DCI and met Ruth Azala who informed him that there was no evidence and advised them to return and talk. He was subsequently summoned to court. On cross examination, the witness admitted that members did not receive their share-out on 19th December 2024 and confirmed that the other signatory was present. He stated that he heard rumors that the interim team withdrew money when they removed the old officials and stated that he did not know the exact amount members were supposed to receive. 9. **Austine Oduor Achola (RW2 )** is the 2nd Appellant herein and who testified that he resided at Kobare and was a boda boda rider. He stated that he was in court because he was told that money was lost, confirming he was one of the officials and that members did not get their money. He stated that the social officers directed them to undergo an audit for which they each paid Kshs. 400. That they were suspended from office to allow investigations to proceed. He explained that the Chama’s money was managed through physical cash handovers and a Paybill account covering both table banking and loans. He clarified that the group was divided into smaller sub-groups of ten people each with leaders who collected money and brought it to the Treasurer. He stated that he did not receive any letter during the audit process but was later informed by letters from the DCI that the audit revealed a loss of Kshs. 850,000/=. That when he went to the DCI office, the officer was absent and the matter was eventually brought to court. That as the Secretary, his role was strictly to record minutes. He noted that the share-out failed because when the Chairperson went to the bank, he discovered the available money was less than what the members had contributed. On cross examination, the witness testified that the members were expected to share out Kshs. 1,000,000/= on 19th December 2024. He confirmed that he was a signatory to the Chama account and stated that the bank balance at that time was Kshs. 570,000/=. 10. **George Owino Ogutu** (RW3) is the 3rd Appellant herein and who testified that he was from Kobare and worked as a boda boda rider. He stated that he received a phone call from the social office while he was attending to a patient in Sabatia. He subsequently came to the social office accompanied by two people to establish how much money was missing. He was informed that about Kshs. 853,000/= was missing while the account balance stood at about Kshs. 500,000/= When questioned about the missing Kshs. 850,000/=, he told them that he did not know anything about it. He was later brought to court. He stated that they were told the account would be closed until the whereabouts of the money was established and that they would be called by the auditor to clarify any ambiguities but he was never called until the assistant chief contacted him regarding a case before the DCI. The chief advised him to resolve the issue and they proceeded to the DCI. On cross examination, the witness admitted that he did not attend the Chama meeting on the scheduled share-out date because he had a patient. He stated that money could not be distributed because the account had already been closed and he could not tell how the money was to be shared out or how much each individual member was entitled to receive. He confirmed that he kept the books where he recorded the members' financial contributions. 11. The Appeal was canvassed by way of written submissions. Both parties filed their respective submissions. 12. The Appellants submitted that the lower court erred fundamentally in law and fact by failing to see that the Respondent's suit was built on an arbitrary financial figure. They stated that the Respondent, who lacks any expert qualifications in financial auditing moved to court claiming a specific liquidated sum of Kshs. 853,174/=. They argued that this figure was computed through guesswork arrived at by simply subtracting the remaining bank balance from what the Respondent personally expected to find in the accounts. 13. The Appellants pointed out that the very audit report relied upon by the trial court did not establish a definitive civil debt or prove personal embezzlement against them. They highlighted that while the internal records and written entries spoke of Kshs. 1,492,773/= being "unaccounted for," the auditor explicitly attributed this to structural vulnerabilities stating there was a "serious weakness of internal control systems" within the group. They argued that the report itself recommended the employment of qualified account clerks due to the poor layout of the group's financial structures and further noted that the analysis was crippled by missing bank statements. They maintained that an audit finding of "poor bookkeeping" or "unaccounted for" entries cannot be equated to absolute proof of a liquidated debt or cash theft by the officials. 14. The Appellants submitted that the trial court completely ignored the operational realities of the Kobare Boda Boda Self Help Group. They stated that the group operated on a fractured matrix where members were divided into smaller cells of 10 people, each overseen by cell leaders who collected money before passing it to the executive. They emphasized that the total money out with members in the form of outstanding personal loans stood at Kshs. 2,672,162/=. They argued that if table banking returns failed or members defaulted on these loans, those defaults constituted debts owed *by individual members to the group* not money stolen *by the officials*. They further noted that the Respondent failed to call even a single common member to testify that they had deposited money which was subsequently misappropriated. 15. The Appellants argued that they were common boda boda riders with only basic education who had been thrust into managing a complex fund without any formal accounting or professional training. They submitted that it was a severe miscarriage of justice for the trial Adjudicator to hold them strictly liable for over Kshs. 850,000/= based on systemic institutional chaos, poor tracking and member loan defaults, rather than clear proof of individual theft. 16. The Respondent submitted that the genesis of the appeal emanated from an application filed by the Appellants (Erick Osur Apiyo and two others) alongside the main appeal. According to the Respondent, the court had previously directed both parties to compromise the application with a specific order requiring the Appellants to deposit the decretal amount into a joint account as security for costs. The Respondent asserted that this directive was never fulfilled. Instead, he argued that the Appellants misdirected the court by filing the record of appeal and subsequent submissions without serving them upon him. Furthermore, he pointed out that the record of appeal had not been uploaded to the court's Electronic Case Tracking System (CTS) thereby denying him an opportunity to peruse it. The Respondent condemned this as a bad practice and contended that because court orders are sacrosanct and must always be obeyed, the appeal was ripe for dismissal on the ground of selective compliance alone. 17. On the question of standing, the Respondent relied on Article 22 of the Constitution of Kenya, which guarantees every person the right to institute court proceedings regarding violations or threats to the Bill of Rights. He noted that under Article 22(2), actions could be brought by individuals acting in their own interest, on behalf of others as members of a class or in the public interest. He further cited Article 260 which defines a "person" to include both incorporated and unincorporated bodies. 18. However, the Respondent clarified that while the Constitution allows unincorporated entities to initiate actions, it does not automatically vest them with independent legal capacity to sue or be sued in their own standing. To support this, he cited **Kituo Cha Sheria v. John Ndirangu Kariuki & Another** where Kimondo J. held that an unincorporated entity must maintain an action through its officials or nominated board members. He also referenced Dennis Ololoigero & 2 Others v. The Art of Ventures Limited & 2 Others, where Aluoch J. struck out pleadings after finding that a registered Community Based Organization (CBO) lacked the legal capacity to maintain a suit and ran the risk of being viewed as an unlawful society under Section 9 of the Societies Act due to the lack of a proper legal framework for self-help groups. 19. Consequently, the Respondent argued that because self-help groups have no independent legal personality, they must sue through a recognized legal agent. He submitted that he possessed the necessary *locus standi* to institute the suit on behalf of the group having demonstrated that he was the chairperson and that the group had passed a formal resolution authorizing him to initiate legal action during a meeting on November 28 2025 supported by minutes signed by 68 members. 20. The Respondent acknowledged that under Section 107 of the Evidence Act, the plaintiff bears the legal burden to prove their case on a balance of probabilities, citing the Supreme Court decision in **Gatirau Peter Munya v. Dickson Mwenda Kithinji and 3 Others (2014).** 21. He contended that the Appellants did not dispute the loss of funds in their response but merely challenged the final amount. To discharge his burden of proof regarding the claim of Ksh 853,174/-, the Respondent stated that he produced several pieces of evidence, including; An auditor's report for 2024, A letter dated March 18 2025 from the Ministry of Labor and Social Protection to the OCS Siaya Police Station, The financial statements of the Kobare Boda Boda Self Help Group, Police summons issued to all the Appellants, Group minutes dated 5th June 2025, and 28th November 2025 and the group's certificate of registration and formal authorization documents. 22. The Respondent explained that while the auditor's report initially calculated the total lost funds at Ksh 1,492,773.00/-, the final claim was brought down to Ksh 853,174/- after the interim office deducted the savings and shares of the former officials (the Appellants) and recovered a parcel of land (SIAYA/KOMOLO/3743) which the Appellants had allegedly purchased secretly using group funds. He maintained that the Appellants, as signatories had illegally withdrawn the money without consent. Before moving to court, the group had also exhausted internal dispute resolution mechanisms by reporting the matter to the police and the Ministry of Social Services. 23. The Respondent further noted that Section 38 of the Small Claims Court Act limits appeals to the High Court strictly to matters of law. He argued that the Appellants were improperly attacking factual findings rather than legal errors contrary to the spirit of the Act. Therefore, he submitted that the factual account from the auditor's report sufficiently proved his case on a balance of probabilities. 24. In his final remarks, the Respondent reiterated that the substantive appeal should be dismissed because it impermissibly attacked the facts of the case, violated court directions regarding the stay of execution application and involved selective obedience to court orders by the Appellants. He emphasized that the Appellants' failure to serve him with the record of appeal or submissions or to file them in the CTS, amounted to "stealing a match" and constituted bad practice. Asserting that he had established both his *locus standi* and his case on a balance of probabilities, the Respondent prayed for the dismissal of the appeal. 25. Having carefully considered the Memorandum of Appeal, the lower court record and the rival written submissions, I find that the singular overarching issue for determination is whether this appeal has merit. 26. The Respondent has strongly contended that this Appeal is fundamentally incompetent and ripe for dismissal on account of selective compliance with court orders, failure by the Appellants to deposit security for costs and the non-service of the Record of Appeal and Appellants' submissions upon him. He points out that the documents were neither served nor uploaded onto the Electronic Case Tracking System (CTS) leaving him unaware of the appeal's progression until its listing for judgment. 27. This Court takes an extremely dim view of parties who treat court directions as suggestions or engage in the practice of "stealing a match" by conducting litigation in secrecy. Court orders are indeed sacrosanct and must be obeyed. However, the Court must balance these severe procedural oversights against the constitutional dictate of Article 159(2)(d) of the Constitution which demands that substantive justice shall be administered without undue regard to procedural technicalities. 28. Furthermore, Section 38 of the Small Claims Court Act limits appeals to the High Court strictly to matters of law. Where an appeal raises fundamental questions regarding legal capacity (*locus standi*) and the wrongful shifting of the legal burden of proof under the Evidence Act, dismissing it strictly on the basis of service defaults would constitute a failure of this Court's appellate duties. Given that the Respondent has nonetheless managed to file his detailed written submissions and fully articulate his position on the law, the prejudice has been largely mitigated. The Court proceeds to determine the appeal on its legal merits. 29. The Respondent argued that Articles 22 and 260 of the Constitution clothe him with standing and that his representation was fully regularized through group minutes dated 28th November 2025 signed by 68 members. This Court has considered the Respondent's cited authorities including **Kituo Cha Sheria v. John Ndirangu Kariuki** and **Dennis Ololoigero**. 30. While Article 22 provides a broad gateway for individuals to approach courts on behalf of groups or class interests, that constitutional relaxation of standing primarily governs public interest litigation and actions alleging violations of fundamental freedoms in the Bill of Rights. It does not automatically displace standard statutory rules of procedure when an individual approaches a civil court seeking a commercial decree for a liquidated specific sum of money. 31. The Kobare Boda Boda Self Help Group is an unincorporated association registered under the Ministry of Labour and Social Protection. As correctly noted by Aluoch J. in **Dennis Ololoigero & 2 Others v. The Art of Ventures Limited & 2 Others** (supra), such bodies lack separate legal personality. They are not corporate monoliths; they can neither sue nor be sued in their own name nor can a self-declared representative simply file a claim for general club funds under his individual name without strict compliance with representative procedures. 32. Under Order 1 Rule 8 of the Civil Procedure Rules, where numerous persons share an identical interest, representative actions require the formal permission of the court and formal notice to all interested parties. While Section 30 of the Small Claims Court Act permits informal representation, it does not dispense with the requirement of a verifiable unambiguous legal mandate. The Record shows that on 18th November 2025, the lower court granted the Claimant four days to present an authority allowing him to represent the group. The minutes of 28th November 2025 produced by the Respondent bear 68 signatures but there was no corresponding verifying affidavit, formal group resolution or public notice served to the rest of the membership confirming that any money recovered would be legally protected and paid back into the common fund rather than pocketed individually. 33. A suit brought by or on behalf of an unincorporated body without fully regularizing the capacity of the parties remains structurally incompetent. The Respondent sued as "Richard Ouma Jamba" as an individual. He lacked the *locus standi* to seek a personal decree for global club monies. 34. In civil proceedings, the legal burden rests squarely on the claimant to prove their case on a balance of probabilities as codified under Sections 107 and 108 of the Evidence Act (Cap 80). The Respondent properly cited the Supreme Court decision in **Gatirau Peter Munya v. Dickson Mwenda Kithinji and 3 others (2014) eKLR**, which affirms that he who alleges must lead evidence to prove the fact. 35. However, the Respondent argues that because the Appellants did not "dispute the loss of money but only challenged the amount," the burden shifted. The trial Adjudicator accepted this reasoning holding that since the Appellants were the bank signatories, they were strictly liable to explain where the money went. This shift of the burden of proof was a profound error in law. A claimant must win on the strength of their own case not on the perceived weakness or admissions of the defense. The fact that the Appellants acknowledged that the group's finances were in disarray is not an admission that they embezzled a specific sum of Kshs. 853,174/-. 36. A forensic analysis of the evidence shows that the trial court conflated "unaccounted for" book entries with an absolute civil debt. The audit report relied upon by the Respondent put the gross deficit at Kshs. 1,492,773/-. The auditor explicitly attributed this deficit to "serious weaknesses of internal control systems" and "poor book-keeping," recommending that the group hire professional account clerks. The Respondent explained that he arrived at the final claim figure of Kshs. 853,174/- by taking the auditor's figure and deducting the Appellants' personal shares alongside the value of a recovered parcel of land (SIAYA/KOMOLO/3743). 37. This calculation is highly flawed. An audit conclusion stating that funds are "unaccounted for" due to systemic tracking failures and missing bank statements is not synonymous with establishing a definitive, liquidated civil debt or actionable theft against specific individuals. The record shows that the group operated on a highly decentralized matrix, where members were split into smaller cells of 10 people with individual cell leaders. Crucially, the total money out with members in the form of outstanding personal loans stood at Kshs. 2,672,162/-. 38. As established by the Court of Appeal in **Kirugi & Another v. Kabiya & 3 Others [1987] KLR 347**, where individual members' property or dues are at stake, generalized group statistics cannot substitute for specific proof of loss. If members defaulted on their table banking loans, those defaults constitute debts owed *by individual members to the group* not money stolen *by the officials*. No single common member was called to testify to prove that they deposited a specific amount that was subsequently pocketed by the Appellants. 39. The Appellants were riders with basic education thrust into managing a complex fund with zero professional accounting training. To hold them strictly liable for a liquidated sum of over Kshs. 850,000/- based on an audit that admits it faced missing statements and structural internal weakness constitutes a severe miscarriage of justice. The Respondent failed to meet the threshold of proof required to establish a liquidated claim against the Appellants. 40. This Court finds that the Respondent failed to demonstrate proper representative capacity to sue and fundamentally failed to meet the threshold of proof required to establish a liquidated claim against the Appellants. The trial court's judgment was anchored on a misapprehension of the legal burden of proof. 41. Consequently, based on the foregoing reasons, the Appeal is allowed and that the Judgment and decree of the Small Claims Court at Siaya in Case No. SCCCOMM/E328/2025 delivered on 23rd December 2025 is hereby set aside in its entirety. Due to the circumstances of the parties herein, I order the parties to bear their own costs of this appeal and in the lower court. It is so ordered. **Dated and delivered at Siaya, this 17TH day of JULY 2026** **D.KEMEI** **JUDGE** **In the presence of:** **N/A OORO E…………………………………. ………for the Appellants** **RICHARD OUMA JUMA…………………………………….... Respondent** **MAUREEN………………………………………..Court Assistant**