https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11468

***REPUBLIC OF KENYA*** ***IN THE HIGH COURT OF KENYA AT KISUMU*** ***CIVIL APPEAL NO. E002 OF 2025*** ***HEZRON OMOLLO…………………………………...…………APPELLANT*** ***-VERSUS-*** ***ELLY ABUOR……………………………….………………..RESPONDENT*** ***(Being an Appeal from the Ruling of Hon. J. P Mkala delivered on 9th December 2024 in Kisumu SCCCOMM/E1069/2024)*** ***JUDGMENT*** **Introduction** 1. The Respondent filed a claim against the Appellant in ***SCCCOMM/E1069/2024*** seeking a refund of Kshs.477,000/- on the basis that he paid the said sum to the Appellant for the supply of Cyber Cafe equipment which were not delivered to him. 2. The Respondent produced evidence in the form of a bank statement and an MPESA message indicating that the phone number to which the money was sent belonged to the Appellant. 3. The Appellant on his part testified in court and denied entering into any contractual agreement with the Respondent and stated that he did not receive any money from him. 4. Having considered the evidence before him, the Honourable Adjudicator found that the Respondent had proved his case on a balance of probability and entered judgement in his favour for Kshs.477,000/-. The Respondent was further awarded costs of Kshs.60,000/- and interest at court rates from the date of judgement until payment in full. 5. The Appellant herein being dissatisfied with the said judgment appealed against it and set out the following grounds:- “1*. The Learned Magistrate erred in law by concluding, without sufficient evidence, that the Appellant owned the cellphone number 0724585727 at the relevant time the transactions occurred, and subsequently, misdirected himself on matters of fact regarding the ownership of the phone number.* *2. The Learned Magistrate failed to properly apply the principles of contract law regarding offer, acceptance, consideration, and intention to create legal relations, leading to an erroneous finding of a valid contract between the parties.* *3. The Learned Magistrate proceeded to deliver judgment without considering the Appellant's submissions, infringing on the Appellant's right to a fair hearing as prescribed by Article 50 of the Constitution of Kenya,2010.* *4. The Learned Magistrate misapplied the standard of proof on a balance of probabilities as required under civil law, leading to an erroneous decision favoring the Respondent*.” 1. Based on the foregoing grounds, the Appellant prayed to have the appeal allowed and the impugned judgement set aside. The Appellant prayed further that the costs of this appeal and that of the proceedings in the lower court be awarded to him. **Appellant’s Submissions** 1. The Appellant filed submissions dated 24/3/2026, and submitted that the trial court erred in law and fact by imposing liability despite the Respondent's failure to prove his case on a balance of probabilities. 2. It was argued that the Respondent failed to establish ownership of the phone number allegedly used in the transactions, failed to prove that the Appellant received the alleged payments, failed to establish the existence of a valid contract, and relied on inadmissible electronic evidence that did not comply with Section 106B of the Evidence Act. 3. The Appellant further contended that the trial court misapplied the burden of proof, failed to consider his submissions on the key issues, and reached a decision unsupported by the evidence. He therefore urged the Court to allow the appeal, set aside the impugned judgment, dismiss the Respondent's suit with costs, and award the costs of the appeal. **Respondent’s Submissions** 1. The Respondent opposed the appeal through submissions dated 24/3/2025. He submitted that the trial court properly evaluated the evidence and correctly entered judgment in his favour after finding that the Appellant had agreed to supply appliances worth Kshs.477,000/-, which sum the Respondent paid through the phone number provided by the Appellant. It was argued that the evidence adduced, including the Respondent's testimony and documentary evidence, sufficiently established the Appellant's involvement in the transaction. 2. The Respondent contended that the trial court did not err in finding that the Appellant was associated with the impugned phone number. It was submitted that, during cross-examination, the Appellant admitted that a person could own multiple phone numbers and acknowledged that there were numbers he had not disclosed to the court. The Respondent further argued that the KCB bank statements and M-Pesa records linked the Appellant to the phone number in question and that the Appellant failed to challenge or rebut that evidence. 3. It was further submitted that the Appellant's complaint that the trial court failed to consider his submissions was unfounded, as both parties had filed written submissions which the trial court duly considered before delivering its judgment. The Respondent argued that the trial court properly took into account the fact that the parties knew each other, that the Respondent specifically identified the Appellant as the recipient of the funds, and that the Appellant failed to adduce any evidence to rebut the Respondent's case. 4. The Respondent maintained that the judgment was well reasoned and that the Appellant had not demonstrated any basis for appellate interference. He therefore urged the Court to dismiss the appeal with costs and uphold the judgment of the trial court. **Analysis and Determination** 1. I have analysed and considered the Record of Appeal dated 8/8/2025 together with the submissions filed by the parties and the grounds of appeal raise the following issues for determination: ***whether the learned trial magistrate erred in law by concluding that the Appellant owned the cellphone number 0724585727 at the relevant time the transactions occurred therefore arriving at an erroneous decision.*** 2. The Respondent asserted that he paid the sum of Kshs.477,000/- to the Appellant through his phone number 0724585727 for the supply of computers and appliances for his cyber business, but the goods were not supplied. 1. On the other hand, the Appellant is adamant that the phone number to which the said amount was sent was not his and that ownership had not been proved by the Respondent. Section **107, 108 and 109** of the Evidence Act provides for the burden of proof and states that whoever alleges must prove. The threshold of proof in civil cases is on a balance of probabilities. 1. The Court of Appeal in the case of ***Palace Investments Limited*** ***v Geoffrey Kariuki Mwenda & Another [2015] KECA 616 (KLR); Civil Appeal No. 127 of 2005; [2015] eKLR*** stated as follows:- “*The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs– Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say: - That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: "We think it more probable than not", the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties' explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained*.” 1. Going back to the evidence at hand, page 28 of the record of appeal is an MPESA statement dated 13/5/2021 indicating that the phone number 0724585727 belonged to the Appellant. Further on page 11-13 of the record are bank statements from KCB Bank indicating that sums of money were sent on several occasions from the Respondent’s account to the said phone number. Having produced the Mpesa records and the bank statement, the Respondent had established that he paid the said amounts to the Appellant. The Respondent had discharged the legal burden placed upon him under Section 107 of the Evidence Act. 2. The evidential burden had thus shifted to the Appellant to produce evidence to rebut the evidence adduced by the Respondent. The Appellant did not produce any evidence to rebut the Respondent’s evidence. In ***Evans Nyakwana vs. Cleophas Bwana Ongaro (2015) eKLR*** it was held that:- ***“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Sections 109 and 112 thereof…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”*** 1. My finding is that from the aforementioned evidence, it is without a doubt that the phone number in question belonged to the Appellant during the time that the Respondent sent the sums of money to him. It is plausible as noted by the trial court that the said phone number was allocated to someone else later on. What is of importance, however, is that at the time the money was sent it belonged to the Appellant as indicated by the bank statement and confirmed by the Mpesa transaction receipt. 2. In conclusion, my finding is that the trial magistrate did not err but came to a justifiable conclusion having considered the evidence before him and as such I find no reason to set aside the impugned judgement. 3. The upshot of the matter is that the Appeal herein lacks merit and it is dismissed with costs to the Respondent. **DELIVERED** Dated and signed Electronically at Nairobi On this **24th** day of **July, 2026.** **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the presence of:** Leadys – Court Assistant Mr. Odhiambo for Mr. Obiero for the Appellant. Mr. Obado for the Respondent.