https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9881

Kiruga v Kigeche (Civil Appeal E175 of 2025) [2026] KEHC 9881 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] KEHC 9881 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E175 of 2025 PK Rotich, J July 1, 2026 Between Gerald Mbwiria Kiruga Appellant and Erastus Maina Kigeche Respondent (Being an appeal from the Judgement of Honourable J. W. Mwangi (RM) delivered on 10th May, 2025 in Mombasa SCCCOMM No. E153 of 2025) Judgment 1.The appellant vide a statement of claim dated 11th February, 2025 made a claim for the sum of Ksh. 900,000 plus costs of the suit being monies allegedly paid to the respondent in 2017 for the purchase of a vehicle but which vehicle was not delivered and refund not made. The appellant, further, averred that the respondent committed himself to refund the aforesaid amount by way of an agreement but which agreement he never honoured. He explained that the amount of Ksh. 900,000 he claims is composed of Ksh. 800,000 the refund for the vehicle purchased and Ksh. 100,000 for interest for the time delayed. 2.In his response to the claim dated 10th March, 2025, the respondent admitted owing the claimant Ksh.120,000 which he prayed to defray in monthly instalments of Ksh. 20,000. The respondent further denied owing the appellant anything above the amount admitted and stated the deed of acknowledgement of Ksh. 900,000/= that he signed was signed at a police station under duress. 3.In its judgement dated 10th May 2025 found that the respondent averments that he signed acknowledgement of debt under duress was credible and trustworthy and entered judgement in favour of the respondent for the sum of Ksh. 120,000 admitted by the respondent with interests from the date of filing this suit. 4.Being aggrieved with the judgement of trial court, the appellant preferred this appeal. The appeal is based on the following grounds of appeal: -a.That the Honourable Learned Magistrate erred in law and fact by finding that the claimant had not proved their case on a balance of probabilities against the respondent for the sum of Ksh. 800,000.b.That the Honourable Learned Magistrate erred in law and fact in finding that the debt acknowledgement entered into between the claimant and the respondent was as a result of duress.c.That the Honourable Learned Magistrate erred in law and fact in finding that the respondent had proven payment of Ksh.130,000 made to appellant in cash at the date of signing of the debt acknowledgment agreement. The respondent did not defend the matter.d.That the Honourable Learned Magistrate erred in law and fact in finding that the respondent was only liable to pay Ksh. 120,000 instead of Ksh. 800,000 as indicated in the debt acknowledgment agreement. 5.Having carefully analysed the evidence on record, the pleadings and submission by the appellant, this court has identified two issues for determination: -a.Whether the respondent owed the appellant the sum of Ksh. 900,000.b.Whether the respondent paid the appellant the sum of ksh. 130,000. 6.The appellant herein purchased a motor vehicle from the respondent in 2017 and paid Ksh. 800,000. The respondent, however, failed to deliver the vehicle but promised to refund said sum vide deed of acknowledgment produced in court. The deed of agreement was drawn by Laura Muriithi and Company, Advocates and was signed by both parties in the presence of Laura Muriithi Advocate. 7.The respondent acknowledges signing the said deed of acknowledgment but claims he signed the same under duress in a police station. The name of the police station is, however, not given. It is the Court’s finding that the claim of duress by the respondent unfounded and therefore, the Court declines to interfere with the deed of acknowledgment signed by the parties. 8.In taking position the court is guided by the decision in the case of National Bank of Kenya Limited -vs- Pipeplastic Samkolit Ltd & Another (2001) KLR at Page 118 in which the court stated: -“A court of Law cannot re-write a contract between the parties. The parties are bound by their terms of their contract unless coercion, fraud or undue influence are proved. There was not the remotest suggestion of coercion, fraud or undue influence.”As stated in the case of Fine Limited -v- Spares & findstones (Civil Appeal No. 51 of 2000) (unreported).“ It is clear beyond Peradventure that save for the special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily not part of equity’s function to allow a party escape from a bad bargain”. 9.In the deed of acknowledgement signed by the parties the respondent acknowledged he was indebted to the appellant to tune of Ksh. 800,000 and which he paid Ksh. 130,000. at the signing of deed. It also conceded by the Appellant that the respondent paid another Ksh.50,000. The outstanding balance not paid is therefore Ksh. 620,000. 10.This court therefore sets aside the judgement of the trial court and awards the Appellant ksh. 620,000 with interest from the date of filing the claim before the Small Claims court. The Appellant is also awarded costs of this appeal and costs of the Small Claims court as costs follow the event. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS THIS 1ST DAY OF JULY, 2026.HON. P. K. ROTICHJUDGEIn the presence of:Ms. Amina for the Appellant – presentN/A for Respondent