https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7813

Mutinda v Ngemi (Civil Appeal E804 of 2024) [2026] KEHC 7813 (KLR) (Civ) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7813 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E804 of 2024 BW Murunga, J June 4, 2026 Between Gabriel Nzioki Mutinda Appellant and James Kalovia Ngemi Respondent (Being an appeal of the judgment and orders of the Honourable E. N. Mutie, Senior Resident Magistrate, delivered on 28th June 2024 at the Chief Magistrate’s Court, Nairobi Milimani Commercial Courts in Civil Suit No. MCCOMMSU/E1577/2021) Judgment 1.This appeal lies against the judgment and orders of the Honourable E. N. Mutie, Senior Resident Magistrate, delivered on 28th June 2024 at the Chief Magistrate’s Court, Nairobi Milimani Commercial Courts in Civil Suit No. MCCOMMSU/E1577/2021. The learned Magistrate entered judgment in favour of the Respondent for the sum of Kshs. 1,900,000/= together with costs and interest from 20th March 2017 until payment in full and final satisfaction of the decree. 2.The Appellant, Gabriel Nzioki Mutinda, being aggrieved by the said decision, filed a Memorandum of Appeal dated 10th July 2024 raising three grounds of appeal, which in substance challenge the Magistrate’s failure to properly consider and evaluate the evidence tendered by the Appellant in proof of repayment of the loan. Background Facts 3.The background to this matter is somewhat undisputed. The Respondent, James Kalovia Ngemi, filed a suit against the Appellant in the Magistrate's Court through a plaint dated 25th November 2021, claiming repayment of a soft loan amounting to Kshs. 1,900,000/= advanced to the Appellant between 18th November 2016 and 20th March 2017 at the Appellant’s own request. The Respondent averred that despite repeated demands and notice of intention to sue, the Appellant failed and refused to repay the said sum. The Appellant filed a defence dated 11th February 2022. 4.Crucially, the Appellant did not deny receiving the loan. Rather, his defence was that he had fully repaid the loan, and indeed overpaid by Kshs. 96,000/=, in the following manner:a.Kshs. 900,000/= paid in cash on 10th April 2019;b.3,500 Euros (equivalent to Kshs. 399,000/= at the prevailing exchange rate of Kshs. 114 to the Euro) paid on 8th May 2018; andc.7,000 US Dollars (equivalent to Kshs. 707,000/= at the prevailing exchange rate of Kshs. 101 to the dollar) paid on 2nd February 2018. 5.The Appellant contended that the aggregate sum paid amounted to Kshs. 1,996,000/=, surpassing the principal loan by Kshs. 96,000/=, which overpayment he acknowledged as a token of appreciation for having delayed in repaying the loan. All payments were allegedly made in cash at the Respondent's express request, the two parties being close friends at the time. 6.In support of his case, the Appellant tendered his KCB Bank statements from three accounts — a Kenya Shillings account, a Euro account, and a USD account — as documentary evidence of the withdrawals made to effect the said repayments. The Appellant did not call any additional witnesses. Similarly, the Respondent relied on his witness statement and list of documents without calling viva voce evidence. Issues for Determination 7.The issues falling for determination in this appeal are as follows:i.Whether the learned Magistrate erred in law and in fact in failing to properly consider the Appellant's evidence of repayment;ii.Whether the Appellant discharged the burden of proving repayment on a balance of probabilities; andiii.What orders are appropriate in the circumstances. Analysis 8.This court, as a first appellate court, is required to re-evaluate the evidence that was before the lower court and reach its own independent conclusions, bearing in mind that it did not have the advantage of observing the demeanour of witnesses. The duty of this court was enunciated in the celebrated case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123, where the court held that a first appellate court is bound to reconsider the evidence, evaluate it and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. 9.The court also takes note of the principle affirmed in Peters v Sunday Post [1958] EA 424, that an appellate court should not disturb concurrent findings of fact by a lower court unless they are based on no evidence or are so perverse as to be unreasonable. 10.Sections 107 and 108 of the Evidence Act (Cap. 80, Laws of Kenya) govern the burden of proof. Section 107(1) provides that 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. Section 108 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 11.In the present case, the Respondent’s burden was to prove that he advanced the loan to the Appellant. That burden was discharged indeed, the Appellant expressly admitted receiving the loan. Thereupon, the Appellant assumed the burden of proving repayment, since it was he who asserted that the debt had been settled. This is consistent with the rule that he who asserts must prove. See: National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd & Another [2001] KLR 112. 12.The standard applicable is proof on a balance of probabilities. As the court held in Miller v Minister of Pensions [1947] 2 ALL ER 372, a civil standard of proof does not demand certainty; it demands that the tribunal is satisfied that the fact in issue is more probable than not. 13.The central controversy in this appeal is whether the Appellant’s bank statements, tendered as Exhibits at the lower court, constituted sufficient proof of repayment of the loan to the Respondent. The Appellant submitted that his bank statements from KCB clearly showed withdrawals corresponding to the three payment tranches claimed. The learned Magistrate, however, found that the evidence was insufficient. 14.At the outset, it is important to appreciate a critical evidential distinction: the Appellant’s bank statements demonstrate, at most, that funds were withdrawn from his accounts on the material dates. They do not, on their own, establish that the withdrawn funds were actually delivered to the Respondent. This is the evidentiary gap that lies at the heart of this appeal. 15.The nature of the payments alleged by the Appellant introduces an additional layer of difficulty. The Appellant concedes and indeed emphasises that all payments were made in cash, purportedly at the Respondent’s insistence. 16.In doing so, the Appellant created a situation where there is no documentary trail connecting the withdrawn funds to the Respondent. There is no receipt, no signed acknowledgment, no witness to the alleged cash handovers, and no contemporaneous written communication between the parties acknowledging receipt. The Appellant explains this by reference to the close friendship between the parties and the Respondent’s preference for cash, but this explanation, however plausible in social terms, does not alleviate the legal burden the Appellant carries. 17.The Appellant argues strenuously that his witness statement and supporting documents were not controverted by the Respondent. It is true that the Respondent did not call viva voce evidence and that his witness statement was not tested under cross-examination in a material sense. However, this court must heed the principle established in Gichinga Kibutha v Caroline Nduku [2018] eKLR, cited by the Appellant himself, where the court held that:“It is not automatic that in instances where the evidence is not controverted, the claimant's claim shall have his way in court. He must discharge the burden of proof. He must prove his case however much the opponent has not made a presence in the contest.” 18.The mere fact that the Respondent did not formally rebut the bank statements does not transform those statements into proof of payment to the Respondent. The statements are proof of withdrawal; they are not proof of delivery. The nexus between the withdrawal and the Respondent is entirely missing. 19.This court notes that, as a gemstone dealer, the Appellant clearly had experience in financial transactions of significant value, and it is difficult to accept that a person of such commercial sophistication would effect payments totalling nearly two million shillings, spread across three separate transactions in three different currencies, without securing any form of acknowledgment of receipt. 20.The Appellant also argues that the fact of overpayment that he voluntarily paid Kshs. 96,000/= in excess is corroborative of his case. This argument is not without some intuitive appeal: it is arguable that a person fabricating a story of repayment would not complicate it by adding a voluntary excess payment. However, the logical force of this argument is undercut by the absence of any direct evidence that the excess or indeed the principal ever reached the Respondent. 21.The court has reflected on the overall probative value of the Appellant’s evidence. While the bank statements are credible documents, and while the Appellant’s account of the repayment is not inherently implausible, the applicable legal standard does not permit a court to speculate on probabilities unsupported by evidence. The evidence, as adduced, falls short of the minimum required to discharge the Appellant’s burden of proving repayment on a balance of probabilities. 22.The learned Magistrate, in finding for the Respondent, therefore reached a conclusion that is supportable on the record. It cannot be said that the trial court ignored the Appellant’s evidence, on the contrary, the court considered it and found it wanting in the essential evidentiary link. 23.This court therefore finds no basis to interfere with that evaluation. The trial court’s findings on the facts are neither perverse nor against the weight of evidence; they are a proper application of the law of evidence to the facts as presented. 24.Accordingly, the three grounds of appeal fail. The Appellant has not demonstrated that the learned Magistrate erred in law or in fact. The judgment of thetrialr court was properly reasoned and the conclusion was open to the Magistrate on the evidence adduced. 25.In view of the foregoing, the court makes the following orders:a.The Appeal is hereby dismissed.b.The judgment and orders of the Chief Magistrate's Court in Civil Suit No. MCCOMMSU/E1577/2021 delivered on 28th June 2024 are hereby upheld.c.There are no orders as to costs. DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026.BENARD WAFULA MURUNGAJUDGEDelivered on virtual platform in the presence ofMs Waweru instructed by Kamau Kinga & Co. for the AppellantN/A for the RespondentKevin Babu - Court Assistant