https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11405

Maya v Ole Santa & another (Civil Case E017 of 2023) [2026] KEHC 11405 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11405 (KLR) Republic of Kenya In the High Court at Kajiado Civil Case E017 of 2023 JL Tamar, J July 23, 2026 Between Gedion Kaitekei Maya Plaintiff and Kapiranya Ole Santa 1st Defendant Silantoi Ene Santa Nkopia 2nd Defendant Judgment 1.In the plaint dated 14th September 2023 and filed in court on the same date, the plaintiff sought judgement against the defendants jointly and severally for of Ksh 43,200,000 being amount lent to the defendants over a period of time between 2020 and 15th may 2023. In the agreement dated on 15th may 2023, it is stated that pending the repayment of the loan advanced, the defendant’s deposit with the firm of Kibet Korir & Co Advocates three title deeds in respect of land reference No Kajiado/Dalalekutuk/14528, Kajiado/Dalalekutuk and Kajiado/Dalalekutuk/14536 all Measuring 6.9 Ha to be held as collateral and security for the total amount advanced. 2.The defendants filed statement of defence on 24th October 2023 denying the plaintiff assertion that they were advance / and or lent the monies as alleged by the plaintiff. Further, the defendants contend that they are complete strangers to the alleged loan of Ksh 43,200,000 and had never discussed any such amount either orally or in writing. The case of plaintiff 3.The plaintiff testified and adopted his witness statement dated 14th September 2023 as his evidence in chief. 4.He told the court that he is business man involved in buying and selling livestock as well as land. That the 1st defendant who was introduced to him by another friend came to his home and informed him that he was expecting some payments of approximately Ksh.490, 000,000 as compensation from government for the use of his land to put a sewage facility and therefore asked him to lend him some money. He testified that on 15th May 2023, he gave the 1st defendant at his request ksh 870,000 and a further 290,000 at the Advocate office. That the total amount advanced to defendants is ksh 43,200,000 which amount still remain unpaid to date. He also established through his own investigations that there were no plans for the construction of a sewage plant in the defendants’ land contrary to earlier assertions and therefore no compensation is inticipated. 5.In cross examination by counsel for the defendants, the witness told the court that he had known the 1st defendant for 6 years prior to doing business with him and that he (defendant) understood Kiswahili language. The plaintiff told the court that he operates a bank account and that there was a time he withdrew ksh 1,200,000 and paid the 1st defendant in cash. 6.PW2 Koipitat Nguruna Serpepi testified and told the court that he was present when ksh. 290,000 was paid to the 1st and 2nd defendant and heard them say that they had been paid 870,000 and 82 sheep in 2020. He confirmed that he was not present when the other amounts said to have been advanced to the defendants were made. In cross examination, the witness informed the court that he was just told to sign and witness what the parties had agreed upon. He admits that he is not conversant with the English language and did not see the plaintiff give the defendants 870,000 but was sure of the 290,000 that was paid in his presence. Case of the defendants 7.The 1st defendant Kapiranya Ole Santa the 2nd defendant son testified and told the court that he received 82 goats in kind from the plaintiff and various sums of money on different occasions in presence of Koipitat Serepepi Nkuruna as follows; 8.On 23rd November 2020, he received ksh 280,000 from the plaintiff in presence of two witnesses one of whom was an advocate. 9.In 2022, he received 200,000 from the plaintiff in the presence of Koipitat Serepepi Nkuruna 10.In 2023, ksh 100,000 and in 2023 ksh 300,000 at the office of an advocate where seven witness were present including Koipitat Serepepi Nkuruna. 11.The defendant aver that the total amount lent to him by the plaintiff amounts to Ksh1,150,000 in cash and 82 goats each valued at ksh 7,000 making a grand total of 1,724,00. He also told the court that the plaintiff witness Koipitat Serepepi Nkuruna who was summoned by the DCI Kajiado Central stated in his statement to the police that the plaintiff advanced to the defendant Ksh 1,760,000 only and not Ksh 43 million as claimed by the plaintiff. The defendant believe that the plaintiff is taking advantage of his illiteracy to defraud him, as the agreement was drafted in English language which he could not read or write in it. 12.DW2 Silantoi Enen Santa Nkopia told the court she was a stranger to the plaintiff’s allegations that she received 1,160,000 and 43,200,000 and that she has never discussed any such loan amount either orally or in writing. She only recalled receiving Ksh 300,000 which the plaintiff handed over to the 1st defendant in September 2023 at the Advocates office. 13.DW3 Kibet Korir Kennedy an Advocate of the High court of Kenya told the court that he prepared the agreement dated 15th May 2023 as instructed by the parties in English language which was understood by both the plaintiff and the defendants. That the titles documents in respect of the properties are in his possession as securities for the due performance of the amount advanced by the plaintiff to the defendants. Further, that he never witnessed the payments of Ksh 42 million. 14.Both the plaintiff and the defendants filed submissions in support of their respective stand points. 15.The plaintiff contend that vide various agreements executed by the parties, the defendants were advanced friendly loans totalling Ksh 43,200,000 and its payment secured by depositing of three title deeds with Kibet & co Advocates. It is the plaintiff submission that the agreement between the plaintiff and the defendants has all the hallmarks of a valid contract as there was an offer, acceptance and considerations and therefore fully enforceable. It is submitted that all the parties endorsed the contract by appending their signature on it a fact said to have not been controverted. That vide the agreement dated 15th may 2023 prepared by Kibet Korir Advocate the plaintiff did lend the defendants a further sum of 1,160,000 and that the latter agreement amended all the previous agreements bringing the total cumulative amount allegedly owed to the plaintiff to ksh.43,200,000. The plaintiff in his submissions set out the various agreements allegedly entered into by the parties and the amount involved. 16.The defendant on the other hand submit that all the agreements allegedly entered into by the plaintiff and the defendants were in English language not understood by the defendants and there is no indication that the contents of the agreements were explained to the defendants in the language they understood. That although a party is bound by the agreement, and the signature appended to it, where however a party is misled into executing a document which is different from that which he meant to execute, then the position in law is that he never consented to the such agreement. The case of Gallie vs Lee &another (1969) 1All Er1062 was referenced. The court in the above case stated as follows;“if the deed was not his deed at all, (non est factum) he is not bound by his signature any more than he is bound by a forgery. The document is a nullity just as if a rogue had forged his signature. No one can claim title under it, not even an innocent purchaser who bought on the faith of it, nor an innocent lender who lent his money on the faith of it. No matter that this innocent person acted in the utmost good faith, without notice of anything wrong, yet he takes nothing by the document.” 17.The defendants further referred to the case of Sood vs Sood & others (2002) All ER (D)07 (jan) where the court stated that “a simple lack of understanding is sufficient to establish a claim of non est factum; what must be proven is an understanding of the documents effect that is fundamentally different from its true effect.” 18.Counsel thus submits that defendants being illiterate, a fact not controverted by the plaintiff were not in a position to understand the content of the agreements which were in the English language a situation which the plaintiff took advantage of to unjustly enrich himself. 19.The defendants further submits that there is no evidence that the plaintiff had access to any of the amount advanced to the defendants nor was the source of such a huge sum of money lent disclosed. In addition, the defendants contend that the 6th sale agreement dated 10th January 2022 to the 12th agreement dated 15th December 2022 are couched in futuristic language and it is not possible to tell whether the amounts were advanced at all. As regard the agreement dated 15th may 2023, the defendants agree receiving 300,000 at the offices of an Advocate who prepared the agreement but there is however no evidence that ksh,1,160,000 was ever advanced to the defendants. 20.The defendant also submits that the original titles in the custody of the firm of Kibet Korir & company advocate be released to its rightful owners to facilitate engagement with the National Land Commission for registration of easement on the said parcel of land. That holding of the title by the firm of advocate was not properly explained to the defendants as they thought in their views that retention of the said documents was to merely show that they had properties. That the suit by the plaintiff being one of money decree, and there being no formal charge registered on the suit, the title documents should be released to the defendants for there are execution processes available for enforcement of a decree in the events the plaintiff claims succeed. Analysis and Determination 21.I have carefully considered on one hand, the plaintiff pleadings, the testimonies by the witnesses as well as the exhibits produced in support of his claim and on the other hand, the defendants defence, the witnesses’ evidence and the documents produced as exhibits. I have also given due considerations to the submissions made and the authorities supplied which I have found useful in determining the issues in controversy. 22.The plaintiff’s claim is based on money lending contract entered into with the defendants on diverse dates between 1st September 2020 to 15th May 2023 in which the plaintiff contend that he did variously advance to the defendants a total of Ksh. 43,200,000 that had not been honoured leading to the filing of the present claim. The plaintiff relies on the agreements produced and exhibited as well as the evidence of witnesses. 23.In the realm of contracts, understanding contractual intent and clarity of its terms is of paramount importance so as to ensure that all the parties involved share a common comprehension of the obligations and the rights within the contract. Without the clarity in its terms and the language, intent of any one of the parties may be misunderstood. And therefore, it is essential that both parties have a clear and shared understanding of the the terms and conditions of the agreement. There must be a consensus ad idem. 24.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving that fact is upon him. The legal obligation is thus placed on that party in this case the plaintiff to prove the existence of facts necessary for a claim to validly succeed. 25.Section 107 of the Evidence Act describes the burden of proof as follows: -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.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 26.The standard of proof in civil cases is on the balance of probabilities. In James Muniu Mucheru vs National Bank of Kenya Ltd (2019) eKLR, the Court of Appeal stated as follows: -“Indeed, it is settled law that in civil cases the standard of proof is on a balance of probability. This is in effect to say that the Courts will make a finding based on which party’s version of the story is more believable.” 27.In terms of production of evidence during the trial, the Court of Appeal in Mbuthia Macharia vs Annah Mutua Ndwiga & Another (2017) eKLR held: -“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.” 28.The plaintiff as earlier stated relied on various agreement to prove the fact that the defendants were variously advanced friendly loan all adding up to 43,200,000. The first three loan agreements dated 1st September 2020, 23rd November 2020 and 24th February 2021 are all phrased in a language that suggest that the events happened in the past. The agreements are drawn in the following terms;“I Gidion Kaitikei Maya of ID No 130xxx30 and of PO Box xxx, Kajiado admit that I gave Kapiranya Ole Santa of ID No 920xx98 a sum of ksh 1,320,000. The money borrowed is to be refunded to me by 2nd November 2020, failure to which we shall come and renegotiate on the payment’s terms. 29.The other two agreements are in similar language except that the amount of loan given is ksh 3,680,000 and 9,000,000 respectively. The agreements dated 28th April 2021 and 28th June 2021 are again couched in different terms. This time it is the defendant who acknowledges receipt of the amount of ksh 14,780,000 and 22,100,000 respectively which shall be refunded at different times and in default, the parties shall renegotiate the repayment. Another set of agreements was entered into whose language this time is in the future. The agreements dated 10th January 2022, 11th April 2022, 11th may 2022, 6th July 2022,9th September 2022,26th October 2022 and 15th December 2022 are all phrased in future. The language used is; “the lender will give the borrower ksh 26,100,000, ksh.27,200,000, ksh.30,400,000, ksh.34,460,000, ksh.35,860,000, ksh.37,920,000, ksh42,040,000.” 30.It is my view that the agreements as drafted do not communicate in clear, definite and unambiguous terms the intention of the parties to the agreement especially whether the amounts mentioned in the three sets of agreements were actually given before the execution of the agreements or were to be lent in future as represented by the last three sets of agreements mentioned above. It is the responsibility of the plaintiff to tender evidence to prove that the various agreements executed were clear and well understood and voluntarily signed by the defendants. 31.The defendants strongly contend that the English language used in the agreements were not understood by them because of their illiteracy. This assertion is confirmed by the defendants’ statements dated 18th September 2023 which is accompanied by a certificate of Advocate certifying that the contents therein had been explained to them in a language that they understood. It is therefore clear that the defendants assert that they were misled into signing agreements whose terms and contents are different from that which they had intended to sign effectively raising a defence of non est factum. The learned authors of Halsurys Laws of England Vol.22 (2012) stated as follows;“Where, however, the plea of non-est factum is available, the promises contained in the document are completely void as against the signatory entitled to plead the defence, no matter in whose hands that document may come. The reason is said to be that the mind of the signatory did not accompany his signature, so that the mistake renders his consent, as represented by his signature, a complete nullity.” 32.A party relying on the defence of non est factum must show that the nature and contents of the agreements signed is materially different from what he intended to sign. The defendants in their evidence do not dispute that they owe the plaintiff money lent to them but not the colossal amount alleged by the plaintiff ad evidenced in the sale agreements. 33.In Saunders vs Anglia Building society (1970) 3 All ER 961 the court stated as follows;“How, then, ought the principle, on which a plea of non est factum is admissible, to be stated? In my opinion, a document should be held to be void only when the elements of consent to it is totally lacking, i.e more concretely, when the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended…” 34.The defendants’ testimonies in chief were given in maasai language and interpreted in english language by a court interpreter Irene Lepatei. They were crossed examined by counsel for the plaintiff in English and interpreted again in the maasai language. It is therefore clear to the court and as borne by their testimonies that the language used in the sale agreement was not understood by the all the parties to the agreement. There was also no evidence that the contents of those agreements, save for the one dated 15th May 2023 were explained to the parties by the advocate who drafted them. The defendants were under special disadvantage occasioned by illiteracy and it was the responsibility of the plaintiff to ensure that the terms of the contract were understood by all. 35.I agree with the defendants that owing to the language barrier, there was no meeting of mind between the parties and the terms of the agreements may not have communicated their true intention. For instance, the agreements provided that if the borrower defaults in payment, then, “we shall come and renegotiate on the repayments”. It is not explained why instead of renegotiating on the repayments as clearly stated in almost all the agreements, the plaintiff continued to advance additional sums of money while it was apparent that the defendants’ ability to pay was in doubt. 36.The plaintiff in his evidence told the court that he operates a Bank Account from which an amount of Ksh 1,200,000 was withdrawn and paid to the defendants in cash and yet no account or Bank statements was provided as evidence of such withdrawal. The amount of money the plaintiff claimed to have advanced to the defendants are so huge that the banks would mandatorily require supporting documents of the source of those funds and the purpose of transactions. None was provided by the plaintiff in this case. 37.It is my view that the plaintiff took advantage of the defendants’ illiteracy and entered into unconscionable agreements whose main focus was the anticipated compensation of Ksh.490,000,000 expected from the use of the defendant land for a government project on which he trailed his eyes on. How else would one explain the huge advances made in quick succession sometimes a month between the agreements as if in a hurry to beat a deadline. The plaintiff was certainly motivated by the anticipated compensation which unfortunately or fortunately never materialized to the chagrin of one of the parties. 38.I find that the plaintiff has not proved the case on a balance of probability. The defendant admits in their statements and evidence in court receiving from the plaintiff a sum of Ksh 1,760,000. I do enter judgment for the said amount with interest at court rates from 1st September 2023 until payment in full. 39.The title deed in the possession of Kibet Korir Advocate shall be released to the defendants 7 days upon payment in full of the judgement amount. 40.Each party to bear own cost. DATED, SIGNED AND DELIVERED AT GARISSA VIRTUALLY THIS 23RD DAY OF JULY 2026JOHN T LOLWATANJUDGE