https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8871

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. HCCA E001 OF 2025** **ELLY KALEKWA MBONI……………………………………APPELLANT** **VERSUS** **SAMMY JIMMY OLWANGU…………………………….RESPONDENT** *(Being an appeal from the Ruling of Hon. Manuela W. Kinyanjui (SPM)* *in Milimani SCCC No. E7337 of 2024 delivered on 13/12/2024)* **JUDGMENT** 1. In 2017, the Respondent who was the claimant in in Milimani SCCC NO. E7337 of 2024 lent $5,000 to the Appellant under an oral money-lending agreement. The Appellant only repaid $5,000 of a separate $10,000 E-money transfer, leaving a balance of $5,000 unpaid. 2. Despite repeated acknowledgments and promises to repay as evidenced by WhatsApp messages from 2017 to 2024, the Appellant failed to settle the outstanding amount. 3. The Respondent filed suit on 3 May 2024 seeking judgment for $5,000, costs, and interest. 4. On the limitation defence, the Appellant argued that the suit was statute-barred under Section 4(1)(a) of the Limitation of Actions Act (Cap 22), which requires contract actions to be brought within six years of the cause of action accruing (2017). 5. The court rejected this defence, holding that under Section 23(3) of the Act, a fresh right of action accrues upon acknowledgment of a debt. 6. The WhatsApp messages showed the Appellant repeatedly acknowledged the debt and sought indulgence to repay. 7. The court cited **Kisii County Government v Masosa Construction Company Ltd (2015)** for the principle that acknowledgment extends the limitation period and revives an otherwise statute-barred action. 8. Since the acknowledgments continued up to 2024, the suit was timely. 9. The Appellant filed a statement of response denying the debt but did not attend the hearing to testify or produce any counter-evidence. 10. The court applied the principle from **Magunga General Stores v Pepco Distributors (1987)** and **Margaret Njeri Mbugua v Kirk Mweya Nyaga (2016),** holding that a mere denial is not a sufficient defence in a liquidated claim; the defendant must provide some reason (e.g., no contract, failure of consideration, or proof of payment). The Appellant failed to do so. 11. On the issue of contract, the court found that the WhatsApp messages established a valid contract, defined as “an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law,” with common intention to enter legal obligations. 12. The court in its final judgment awarded judgment in favor of the Respondent for $5,000, plus costs of Ksh. 50,000, and interest at court rate from the date of filing (3 May 2024). 13. The Appellant has appealed against the said judgment on the following grounds; 14. *THAT the learned Senior Principal Magistrate erred in law and in fact in failing to consider the Appellants Submissions.* 15. *THAT the learned Senior Principal Magistrate erred in law and in fact in making a finding that the Appellant's Response to Statement of Claim was not just a mere denial and did not amount to a good Defence to the Claim.* 16. *THAT the learned Senior Principal Magistrate erred in law and in fact in failing to find that the Respondent did not prove his case despite the Appellant not testifying in his Defence.* 17. *THAT the learned Senior Principal Magistrate erred in law and in fact in failing to find that the Respondent did not adduce any evidence to prove that the WhatsApp messages he relied upon in proof of his case emanated from a WhatsApp Account / Number that belonged to the Respondent or that was at all material times being used by the Respondent and further that the said WhatsApp messages were sent to the Appellant's WhatsApp Account / Number.* 18. *THAT the learned Senior Principal Magistrate erred in law and in fact in failing to find that the Respondent did not adduce any evidence to prove that the WhatsApp messages he relied upon in proof of his case were sent to the Appellant to a WhatsApp Account/Number that belonged to the Appellant or that was at all material times being used by the Appellant and or were sent to the WhatsApp Account / Number that the Respondent used to serve the Appellant with the pleadings in the subject suit.* 19. *THAT the learned Senior Principal Magistrate erred in law and in fact in failing to find that the WhatsApp messages the Respondent relied upon in proof of his case did not contain any evidence that the Appellant owed the Respondent USD 5,000/=.* 20. *THAT the learned Senior Principal Magistrate erred in law and in fact in failing to find that the subject claim was statute barred, the cause of action having arisen in the year 2017.* 21. The appellant, Elly Kalekwa Mboni, submitted that he is appealing against the judgment of the Senior Principal Magistrate delivered on 13 December 2024 in Nairobi Small Claims Court Case No. SCCCOMM/E 7337/2024, in which the respondent was awarded USD 5,000 as an alleged debt. 22. The appellant argues that the trial court failed to consider his submissions and wrongly treated his defence as a mere denial. 23. The respondent's claim relied almost entirely on WhatsApp messages that were not properly authenticated under the Evidence Act, as no certificate of electronic evidence was produced to confirm that the messages originated from the appellant or were sent to his WhatsApp account. 24. During cross-examination, the respondent admitted that he had no proof that the phone number used for the WhatsApp messages was his, and no evidence that the messages were sent to the appellant's number. 25. The appellant submits that the claim is statute-barred because the alleged debt arose in 2017, while the suit was filed in July 2024, more than six years later, contravening section 4(1)(a) of the Limitation of Actions Act. 26. The respondent provided no explanation for the delay in filing the claim and did not seek an extension of time under section 26 of the Limitation of Actions Act. 27. The respondent produced no documentary evidence such as e-money transfer receipts or bank statements to prove the loan or the alleged partial repayment of USD 5,000. 28. The statement of claim failed to specify the exact date the cause of action accrued, making it impossible to properly plead or prove special damages. 29. The appellant relies on established legal principles that pleadings alone are not evidence, and that even in the absence of a defence, a claimant must prove his case on a balance of probabilities. 30. The appellant therefore prays that the appeal be allowed, the small claims court judgment be set aside, the claim be dismissed with costs, and that the costs of the appeal be borne by the respondent. 31. An appeal from the Small Claims Court to the High Court lies only on matters of law as stipulated by Section 38(1) of the Small Claims Court Act. 32. Upon reviewing the Appellant’s seven grounds of appeal, only Ground (vii) which isalleging that the claim is statute-barred, qualifies as a pure point of law. 33. The remaining grounds challenge the trial court’s factual findings on the authenticity of WhatsApp messages, evaluation of evidence, and the sufficiency of the Appellant’s defence, which are not permissible grounds of appeal as they invite this court to re-evaluate evidence. 34. Therefore, only Ground (vii) regarding the limitation defence will be considered on its merits, while the rest are struck out. 35. The issues for determination in this appeal are therefore as follows; 36. Whether the trial court erred in law by finding that the claim was not statute-barred under Section 4(1)(a) of the Limitation of Actions Act (Cap 22). 37. Whether the trial court erred in law by relying on unauthenticated WhatsApp messages as proof of acknowledgment of debt under Section 23(3) of the Limitation of Actions Act. 38. On the Limitation Defence (Ground vii), Section 4(1)(a) of the Limitation of Actions Act requires that actions founded on contract be brought within six years from the date the cause of action accrued. 39. The Appellant argues that since the debt arose in 2017 and the suit was filed in May 2024, the claim is time-barred. 40. However, Section 23(3) of the same Act provides a statutory exception as follows; **“Where a right of action has accrued to recover a debt... and the person liable or accountable therefor acknowledges the claim or makes any payment in respect of it, the right accrues on and not before the date of the acknowledgment or the last payment.”** 1. The trial court found that the WhatsApp messages from 2017 to 2024 contained repeated acknowledgments of the debt and promises to repay by the Appellant. 2. These acknowledgments, being in writing and signed by the Appellant’s WhatsApp account, satisfy the formalities under Section 24 of the Limitation of Actions Act. 3. Consequently, each acknowledgment caused a fresh cause of action to accrue, with the last acknowledgment in 2024 bringing the suit filed in May 2024 well within the six-year limitation period. 4. The trial court correctly applied the principle that acknowledgment of a debt extends the limitation period and revives an otherwise statute-barred action. This ground therefore fails. 5. On the Admissibility of WhatsApp Messages (Grounds iv, v, vi), although the other grounds are struck out as matters of fact, the Appellant’s contention on the legal validity of admitting electronic evidence was considered. 6. The Appellant argued that the WhatsApp messages were not properly authenticated under the Evidence Act. 7. The law governing admissibility of electronic evidence is found in Section 106B of the Evidence Act, which provides that a computer output shall be admissible as a document if produced by a computer during a period it was regularly used to store information by a person with lawful control. 8. The trial court admitted the messages after the Respondent produced them alongside testimony identifying the Appellant’s phone number. 9. While a certificate under Section 106B is desirable, the failure to produce one does not automatically render electronic evidence inadmissible where the maker of the document testifies to its authenticity and the opposing party has an opportunity to cross-examine. 10. The Respondent testified that the messages were from his phone and identified the Appellant’s number. 11. The Appellant, despite filing a statement of response denying the debt, chose not to testify or produce any evidence to challenge the authenticity of the messages or prove the phone number was not his. 12. In the absence of such challenge, the trial court was entitled to rely on the messages. 13. Accordingly, there was no error of law in the trial court’s admission and reliance on the WhatsApp messages as proof of the debt and acknowledgment. 14. The trial court correctly interpreted and applied Section 23(3) of the Limitation of Actions Act by holding that the repeated acknowledgments of debt by the Appellant extended the limitation period, making the suit filed in May 2024 timely. 15. The judgment on liability and quantum of USD 5,000 was based on evidence properly admitted by the trial court. Consequently, the appeal on the point of law fails. 16. The Appellant’s appeal on Ground (vii) is dismissed for lack of merit. 17. The judgment of the Small Claims Court delivered on 13 December 2024 in Nairobi Small Claims Court Case No. SCCCOMM/E 7337/2024 is hereby upheld in its entirety. 18. Each party shall bear their own costs of this appeal. 19. Orders to issue accordingly. **Judgment Dated, Signed and Delivered Virtually at Nairobi this 10th day of June, 2026.** **ASENATH ONGERI** **JUDGE** Delivered in the **absence of the parties**.