https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9322

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **CIVIL APPEAL NO. E010 OF 2024** **DENNIS MBUNGU KIVONGI......................... APPELLANT** **-VERSUS-** **JACINTA NAIROSIAE MBORAIKO............ RESPONDENT** *(Being and Appeal against the Judgement delivered by Hon. T.W. Wachira (adjudicator) in Chuka SCCC.No. E014 OF 2023 delivered on 30th April 2024.)* **J U D G E M E N T** 1. The Respondent in the present Appeal was the claimant in Chuka Small Claims Court No. E014 of 2024, where she was awarded Kshs. 900,000/- and costs of Kshs.30,000/- against the Appellant. 2. The background to the claim was that the Appellant and the Respondent were persons well known to each other and their relationship witnessed financial assistance which allegedly flowed from the claimant to the Respondent. According to the claimant they had an understanding that the Respondent would return all the money that she advanced to him. 3. According to the Respondent (now Appellant) they were in a social relationship in which they supported one another and also did business together. That the money that the claimant (now Respondent) gave him was meant for the charcoal and other businesses which they conducted together. 4. After hearing the parties, the adjudicator Hon. T. Wachira rendered judgement on 30th April 2024 as aforestated. 5. Dissatisfied with the judgement the Appellant filed his Memorandum of Appeal on the grounds that: - 6. The learned magistrate erred in law and in fact by imposing the burden of proof to disprove the claim upon the Appellant. 7. The learned magistrate erred in law and fact in finding that money gifted in the context of a romantic relationship amounts to a civil debt contrary to the principles of contract law and the applicable judicial precedents, therefore the same is unreasonable, erroneous and has occasioned a miscarriage of justice. 8. The learned magistrate erred in law and fact by equating M-pesa money transfer from one person to another with a contractual obligation to refund. 9. The learned magistrate erred in law and fact in finding the Respondent had proved their case on a balance of probabilities, thereby arriving at an erroneous decision. 10. The learned trial magistrate erred in law and fact in failing to give appropriate consideration to the submissions made by the Appellant and the legal authorities provided thereof. 11. The learned magistrate’s judgement as a whole is not supported by the evidence that was tendered in court. **Submissions:** 1. The Appeal was canvassed through written submissions. The Appellant’s submissions were dated 12th February, 2025. The Appellant submitted that the main issue for determination by this court was whether the Respondent proved her case on a balance of probabilities that she lend Kshs.900,000/- to the Appellant. It was also their submission that this court’s jurisdiction was limited to matters of law only. 2. The Appellant submitted that there was no contention that the Respondent sent Kshs.814,000/- to the Appellant as shown by the M-pesa statement. That however the Respondent did not prove that the amount was a friendly soft loan or a contribution to the charcoal business as stated by the Appellant. 3. The Appellant submitted that the claimant did not discharge the burden of proof under sections 107, 108 and 109 of the Evidence Act and therefore did not prove the existence of a contract as she did not prove offer, acceptance and consideration. 4. The Appellant further submitted that there was no written agreement between the parties and the M-pesa transfer alone could not prove the basis of the transaction. They relied on **Patrick Peter Kithini -vs-Justus Mwongela [2020] eKLR.** **Respondent’s Submissions** 1. The Respondent filed submissions dated 4th March 2025. The Respondent submitted that the standard of proof in civil cases was on a balance of probabilities which was based on preponderance of evidence. That a trial court only needed to be satisfied on the likelihood of the events having occurred. 2. It was the Respondent’s submission that the Appellant did not tender any evidence to show that they were supporting each other because they were lovers. They submitted that the Respondent tendered evidence which on a balance of probabilities proved that the Appellant made a request for the advance, the advance was given and accepted and the Appellant defaulted in repayment. That there was no legal requirement for such an agreement to be in writing. 3. The Respondent further submitted that once she proved that she gave money the Appellant, the burden shifted to the Appellant to prove that he was not required to pay it back, and that he failed to discharge such burden. 4. My mandate as an Appellate court in this case is delimited by section 38(i) of the Small Claims Court Act which provides: - **“A person aggrieved by the decision or an order of the court may appeal against that decision or order to the High Court on matters of law.”** 1. I have considered the Grounds of Appeal and the respective submissions of the parties. The only issue for my determination is whether the Respondent proved her case on a balance of probability. 2. The standard of proof is a matter of law. Section 107, 109 of the Evidence Act provides for this standard. **“107. (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.”** **“109. 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 provided by any law that the proof of that fact shall lie on any particular person.”** 1. In the case of **William Kabogo Gitau-vs- George Thuo & 2 Others [2010]1 KLR 526**, where the question of what amounts to proof on a balance probabilities was discussed, Kimaru J. (as then was) had this to say: - “***In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place.*** ***In percentage terms, a party who is able to establish his case to a percentage of 51% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is more probable than not that the allegations that he made occurred.”*** 1. In the present case, the claimant (Respondent) testified that the Appellant owed her money (Kshs.900,000/-) which she gave him through M-pesa (Kshs.814,000) and Kshs.86,000 in cash. She stated that she lends him the money as a good friend. She produced her M-pesa statements (Exhibit 1 and 2.) 2. Cross-examined, she stated that she became acquainted with the Respondent in 2017 at Marimanti where she owned a bar business. That she sent him various amounts including Kshs.40,000/- on 10th December 2019 and that between 10th to 13th she had sent him Ksh.200,000 for his ruracio. That he had promised to repay in January 2010, but he did not. She continued to send him money through to 2022 and in 2024. That she also gave him Kshs.86,000 in cash and in the presence her witness (PW2) one Paul Gichuki Kamwara Mwambo. She stated that the money was a loan. 3. The Claimant called one witness Paul Gichuki Kamwara who testified that he witnessed the Claimant giving Kshs. 86,000 to the Respondent. That he had counted the money before it was handed to the Respondent. 4. On his part, the Respondent testified that the Claimant was known to him as their friendship had progressed until they moved in together. He admitted to receiving Kshs. 814,030/= which he stated was not a loan but money meant for charcoal business. That they had no contract. 5. On cross examination he maintained that he had received money from the Claimant for various needs because they were lovers. He admitted that he did not have any receipts for the charcoal business nor any documents to show that he transacted on her behalf. 6. The trial court in its decision, noted that in as much as there was no written agreement for the entire transaction, the court ought to look into the intention of the parties. Further, that disbursement was proved and admitted to the amount of Kshs. 814,000 the only issue being the purpose for which the money was sent. 7. I have reviewed the trial record and the grounds of appeal herein. The Respondent’s evidence showed that she transferred **Kshs. 814,000** via M-Pesa to the Appellant and handed over **Kshs. 86,000** in cash witnessed by PW2. The total of **Kshs. 814,000** was undisputed as having been received. Indeed it was proven by the exhibited M-Pesa record. 8. The receipt of Kshs.86,000 in cash is disputed. Though the claimant’s witness (PW2) testified that he witnessed the money changing hands the Appellant denied the same. It therefore remained PW25…………. Against the Respondent’s. With no further evidence I find such amount not proved on a balance of probability. 9. The Appellant admitted receipt of the money but asserted that it was for a joint business and social support. However, he failed to provide **any documentary evidence** of the alleged business venture, such as records, receipts, or agreements. The trial court correctly found that once receipt was admitted, the burden shifted to him to explain why repayment was not due. 10. Once it is established that money passed from the Claimant to the Defendant and the Defendant admitted receipt, the issue becomes the nature of that transfer whether it was a loan, a payment for a specific purpose, or a gift. Where the Claimant proves disbursement and receipt is admitted, the evidential onus shifts to the recipient to show that the transfer was a gift or otherwise not repayable; absent satisfactory evidence to that effect the transfer will be treated as repayable. This burden in my view has not been discharged by the Appellant. 11. The Appellant also contends that there was no written agreement and the m-pesa transfer alone could not prove the reason for the transaction. The general principle is that the absence of a written agreement **does not invalidate** a contract or transaction, **if the essential elements of a contract** (offer, acceptance, consideration, and intention to create legal relations) can be established through other evidence. 12. **Section 3(1) of the Law of Contract Act (Cap 23, Laws of Kenya) provides that** Contracts for disposition of an interest in land must be in writing, but **other types of contracts,** including loans or monetary transactions, **can be oral or implied** from conduct or correspondence. 13. **Further, Section 83A of the Evidence Act (Cap 80)** further provides that: - **“In any legal proceedings, electronic messages and digital evidence shall be admissible as evidence.”** 1. Flowing from the foregoing, I find that that the Appellant failed to discharge his *onus* that the money he admitted to have received from the Respondent was intended for a joint venture and not due for repayment. His reliance on the existence of a romantic relationship did not, in law, negate the enforceability of a debt. 2. In the end, the appeal succeeds only to the limited extent that this court finds the amount of Kshs.814,000 owing and payable instead of Kshs.900,000/-. The said amount shall attract interest from the date of this judgement until payment in full. 3. Having partially succeeded, each party shall bear their own costs in this appeal while costs in the suit shall remain as awarded by the adjudicator. Orders accordingly. **Judgement delivered, dated and signed at Chuka this 30th day of June, 2026.** **..........................** **R. LAGAT-KORIR** **JUDGE** **Judgement delivered in the presence of Mr. Muthomi Gitari for the Appellant, and Mr. Murango Mwenda for the Respondent; Muriuki (Court Assistant).**