John v Mwaura (Small Claims Appeal E028 of 2025) [2026] KEHC 5870 (KLR) (30 April 2026) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS HCCSCA NO. E028 OF 2025 GIOCHE GITAARA JOHN......................................... APPELLANT VERSUS PAUL MWAURA................................................... RESPONDENT (Being and appeal against the Decree of the Small Claims Court at Milimani, Nairobi before Hon Simatwo delivered on 20th September 2024 in Nairobi Milimani SCCCOMM NO E9828 of 2023) JUDGMENT 1. This is an appeal arising out of the decision of the lower Court in which the Appellant lost the case. The brief facts of this case are that the Appellant entered into an agreement with the Respondent in which the respondent sold his motor vehicle to the Appellant for Ksh 500,000. The Appellant contented that the entire amount was paid but the Respondent claimed that only Ksh 250,000 was paid. The issue of the first payment of Ksh 250,000 is not in question as both parties agree that this amount was paid. The terms of the agreement dictated that upon the payment of Ksh 250,000, the motor vehicle would be released to the respondent but the log book would be retained by an advocate called Mr Richard Matara who would release it upon 1 | P a g e full payment. Mr Matara released the logbook upon being paid the balance by the Appellant- and this is the substratum of the Appeal; whether this amount was paid or not. The following are notes I wish to make in order to determine this appeal. 2. The agreement did not specify who was to be paid the balance but it was clear on who was the seller and who was the buyer and this being the case, it would be expected that the buyer would pay the balance to the seller directly and if the buyer decided to pay the seller’s advocate (in this case Mr Matara) who released the Motor vehicle, the buyer would carry the burden of proving that he made the said payment. I do not see why the buyer would send money to an advocate who signed the sell agreement yet he knew the seller’s mobile number. Would it be that the seller’s mobile number was faulty or had maximum holding deposit? If this were to be the case, the Appellant would have testified so, that he tried to send money to the buyer in vain. Such evidence is not there and besides the advocate was not the one selling the car. Why would the Appellant send money to the advocate who drafted the agreement so that he can transfer it to the Respondent yet he knew or ought to have known that that there would be more transactional charges? 3. The agreement spelt out the role of their advocate clearly and that is to keep the logbook until payment in full and by 2 | P a g e making payments to the said advocate, the buyer significantly changed the role of the advocate from a mere agreement drafter to a “seller” which essentially requires written prove showing that the seller consented. 4. On who was to enjoin the advocate who received the balance, the answer is very clear- the Appellant who allegedly paid him the balance because with that, he would prove that indeed the balance was received through the said advocate and not the seller who expected payments. The law of evidence is clear on the burden placed upon a person who alleges payment and not the person who is supposed to have received payment from such a person since the Respondent disputes being paid. 5. There are some Mpesa payments in the names of the said advocate by the Appellant. An advocate is in the business of representing clients and without the advocate coming to testify on the reason for such payments, the Court cannot ascertain the purpose of the money and besides the amount received by the advocate in the statement are not synonymous to the balance of Ksh 250,000. 6. The conclusion of the above is that the Appeal is not merited and is dismissed with costs. DATED DELIVERED VIRTUALLY AND SIGNED ON THIS 30TH DAY OF APRIL 2026. 3 | P a g e L. P. KASSAN JUDGE 4 | P a g e