https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10643

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E082 OF 2022** **JENARO NAMU NJAMUMO..........................................................................................………..APPELLANT** **VERSUS** **JAMES KINYUA MWOBE.......................................…..……………………..……………….RESPONDENT** **(Being an appeal from the judgment delivered by Hon. Grace W. Kirugumi (PM) on 31/8/2022 at Kerugoya PMCC No. 139 of 2018)** **JUDGMENT** 1. By a plaint dated 18/9/2018, the Respondent sued the Appellant seeking Ksh. 280,000 with interest at court rates calculated from 3.4.2016 until payment in full, general damages for breach of contract, cost of this suit and interest. He pleaded that on 31/3/2016, he advanced a friendly loan to the Appellant to be repaid in one month, failure to which the Appellant would assist him procure a tender to supply water pipes worth Ksh.2,800,000. The Appellant neglected to repay the loan and he was subsequently charged, tried and convicted of obtaining money by false pretences. He suffered loss as a result of the Appellant’s breach of contract, as he was put out of his money and spent lots of time in court instead of attending to his businesses. 2. The Appellant denied the claim by his statement of defence dated 27/9/2018 and prayed for the Respondent’s suit to be dismissed. 3. Upon full hearing of the case, the trial court held that; ***“The plaintiff is entitled to prayer (A) in the plaint with interest at Court rates and I so award. The plaintiff is awarded costs of the suit with interest at Court rates from the time of filing suit until payment.”*** **The Appeal** 1. On appeal, the Appellant filed his memorandum of appeal on 22/9/2022 raising 5 grounds as follows: 1. *The learned trial magistrate erred in law and fact in failing to appreciate the import of sections 107, 108 and 109 of the Evidence Act.* 2. *The learned trial magistrates erred in law and fact in failing to consider the contradictions in the evidence of the plaintiff and his witnesses, and then proceeded to enter judgment for the plaintiff, yet there was no document tendered in support of the plaintiff’s case.* 3. *The learned trial magistrates erred in law and fact in shifting the burden to the appellant to prove his case, which finding has no basis in law.* 4. *The learned trial magistrate erred in law and fact in failing to consider the findings made in Kerugoya HCRA No. 40 of 2018 which was about the same subject matter and the parties herein.* 5. *The judgment was against the pleadings, the evidence and the applicable legal principles.* **Duty of the Court** 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See ***Selle v Associated Motor Boat Co. & others [1968] E.A. 123***). **Evidence** 1. **PW1 James Kinyua Mwobe**, the Respondent herein, adopted his statement recorded on 18/9/2018 as his evidence in chief. He testified that, *“I come from Kerugoya. I am a business person. I sued Jenaro Namu Jamumo. I know him well. He has lived in Kerugoya. I have known him for more than 10 years. He is my friend. We were visiting each other at home and at the workplace. In the year 2016, he was an MCA for I don’t recall the name of the ward. We would lend each other money. We usually never did agreements. We were great friends even at family level. We never wrote agreements. On 31/3/2016 at 10.00 am I was called by Jamumo. He said he was at the office. He asked I get him a sum of Kshs 300,000/-. I did not have it then. I said I had Kshs 280,000/-. He said it was okay. I left my shop. I went to KCB Bank. I withdrew Kshs 500,000/-. I wanted to purchase other items at my shop. He came to my shop. I operate hardware shop. My wife Florence Wanjiku was present. My worker Waweru was present. We got into my office at the shop. Once you get in by the main door my office is next. When you are at the counter you can see a person in the office. The money was in a khaki envelope. I gave him Kshs 280,000/-. I placed in another envelope. He was very grateful. He said he will refund. My wife saw me count the money. Even Waweru. He said he would refund before one month was over. I had loaned him money before like two times before. I had even loaned him Kshs 200,000/-. We never wrote an agreement. He was to pay back cash. When he was leaving he said if he failed to refund he would give a tender to supply pipes using his office as an MCA. He said the tender would be worth 3-5 million. The profit would cover my loan. I believed he was able to do that. After one month he kept telling me lies. I reported the issue to the police. We had a social group of thirty members. It is known as dowry group. I asked one group member Jeremiah Muchira. He knew us well. I sent him to the defendant to ask him to pay. He said he was aware and he would pay. He said he was busy. We kept speaking on phone. He said he would pay. He was charged in court. It is criminal Case 454/16 at Kerugoya Chief Magistrate’s Court. I testified. He was found guilty. He preferred an Appeal. The decision was overturned. High Court Criminal Appeal Number 40 of 2018. I am not a layer. I don’t know why the Appeal was upheld. He still owes me. I produce the documents in my list of exhibits 1-3. I withdrew Kshs 500,000/-. I wrote a demand before I filed suit. I filed a further list of documents. I produce the documents as exhibit 4. I pray for Kshs 280,000/-. I pray for general damages for breach of contract. I have incurred loss. My business suffered. If I invested the Kshs 280,000/- in my business, I would have recovered Kshs 50,000/- profit per month. I therefore seek compensation for the loss. I have no reason to frame him. He is my friend. I wish to recover my money and the other reliefs.”* 2. On cross examination, he stated that, *“We were great friends. I don’t have any evidence of our friendship. We loaned each other money. I don’t have written agreement. On 31/3/16 he called me at 9.00 am – 10.00 am. I withdrew money from the Bank. I got back to the office at 11.00 Am. In March 2016, I had a Company. It was Challin and Jimflo Enterprises. In April 2015 I had a tender to construct a road from Kirinyaga County Government. It did not raise queries. The quality of the work was not questioned. I was given 3.4 Million. The issue was never raised to the Member of Parliament. I have not seen the statement of the Hansard. He never questioned me in the criminal case. The proceedings have been produced. He was to repay within one month. He would also if he failed give me a tender. I don’t know that he was not in the tender committee. The tender was valued at 3.5 Million. He was to use his influence as MCA. In my testimony in the Criminal Case he said he would pay in one week. In the criminal case the tender was for 2.8 million. I withdrew Kshs 500,000/-. The bank withdrawal slip does not indicate time of withdrawal. I gave him the money in my office. My wife was present. She is called Florence Wanjiru. She witnessed as I counted. My office is tiny. Only three people can fit. The door was open. She was standing. She gave a seat to Jamumo and stood at the door. She testified in the criminal case. She saw me counting. She did not count the money. She saw as I counted the money. Mr. Waweru Joseph was present. He is my employee. We are not related. He was at the counter. He testified in the criminal case. He said he will pay back. Jeremiah heard him saying he will pay. I don’t have any document. I with Jeremiah one day at the County Assembly. He went twice. I heard him that day l went. My Advocate told me about the High Court Judgment. The court said there was inconsistencies. I did not Appeal. My Lawyer was to Appeal. This court should find he has my money.”* 3. On re-examination, he stated that, *“I have not availed photographs to evidence on friendship although they exist. I didn’t think they would be required. The statement didn’t show the time. I withdrew the money just once. The 2015 contract was before I loaned him money. It is not relevant to this case. I have not seen the statement tracker. I don’t know if there was a query about the contract in the County Government. I have not seen the Hansard. I have not seen the proceedings in the County Assembly. The contract had its own conditions. The Engineers Inspector was paid in several phases. It was inspected. They were satisfied and paid. In the Criminal case I said within a week. We agreed he would pay after one week and after one month. I will get the tender if he does not pay. The tender was for 2.8 Million. He had earlier said even for 3.5 Million I would get. I sent Jeremiah to Jamumo. It was several times. I went with Jeremiah once to the County Assembly. We never got inside. He said he was going to remember. We spoke at the gate. He said he will pay. I have not read the High Court Judgment.”* 4. **PW2 Florence Wanjiru**, adopted her statement dated 18/9/2018 as her evidence in chief. She testified that, *“I am from Kerugoya. James is my husband. We operate a hardware shop. It is located opposite Cabanas behind Commercial Bank. I know the Defendant. I have known him for a long time. They were great friends with my husband. He would visit our shop. They would speak on phone. I know about today’s suit. On 31/3/2016 Jenaro came to our shop. He came at 11.00 am or around 11.00 am. He had communicated with my husband on phone. He wore a shirt, trouser and jacket. He found my husband had come from the bank. I found as he was confirming the money. It was Kshs 280,000/-. Jenaro confirmed by counting. I heard them. My husband asked if it was Kshs 280,000/-. He agreed. I was at the door of the office. I stood there as they counted the money. He had told me he was to give Jenaro money. The money was in Khaki envelope from the Bank where he came. He confirmed and placed the money in another envelope for Jenaro. Jenaro counted. They were close friends. They have now disagreed. He was visiting our shop not the home. I saw Jenaro receive the money. He now wants to be paid his money. The money was for the family business.”* 5. On cross examination, she stated that, *“I saw the Defendant that day. My husband came first from the bank. He proceeded to the office in the shop. I witnessed what transpired. I was at the door. The office is small Jamumo was seated. I stood near Jamumo. The office was full. I witnessed the money being given. Jamumo was his friend. Jamumo confirmed loudly after he received. My husband counted. He gave Jamumo. I could see him count. Jamumo confirmed it was 280,000/-. There was a criminal case. The accused was Jamumo. I testified. I said I asked my husband how much he gave Jamumo when he left. I saw the money being put in an envelope. It was the same envelope. It was daytime. It was a friendly loan. In the criminal case I recorded my statement at the Police station. The Kshs 280,000/- was for a tender to supply water pipes. Jamumo is to influence the tender. In my statement in this case I said it was a friendly loan. We have a company Challin and Jimflo Enterprises. We had some tender from the County Government. The quality of our service was not questioned. The relationship was not sour. The construction was in 2015. We were to construct a road in 2015 in our company. The company was paid the work we did. You can’t be paid if the work was not satisfactory.”* 6. In re-examination, she stated that, *“He came back from the bank. I saw him. He had money in an envelope. It was a Khaki envelope. I saw him count. Jamumo confirmed it was Kshs 280,000/-. It was Kshs 500,000/-. He removed Kshs 280,000/-. He was given money in another envelope not the one he came from the bank with. My husband told me he gave Jamumo Kshs 280,000/-. It was after Jamumo walked out. I asked him the same day to confirm what I had heard Jamumo say. If Jamumo failed to pay the money he was to ensure James got a tender to supply water pipes. We went to police. There was no contradiction on the purpose of the money. I am a share holder in the company. The 2015 tender was for road construction. It had nothing to do with supply of water pipes. The tender was awarded by Kirinyaga County Government not Jamumo. He never raised the issue of the 2015 tender and its performance in the Criminal Case. His allegations in his defence in the Criminal case were untrue, on 31/3/2016 they were good friends. That day and before he was jovial.”* 7. **PW3 Joseph Waweru**, adopted his statement is dated 18/9/2018 as his evidence in chief. He testified that, *“I come from Kiangothe in Kirinyaga. In 2016 I was working at Dallas Hardware. It was owned by the Plaintiff. On 31/3/2016 I was at work. He asked I wait for a while as he left. When he came back he got into his office. He had an envelope. Jamumo came to his office. He was a good friend to my employer. He had visited before. The office is on the side as you get inside. The office has transparent glass. I was sweeping. They were in the office. I had a customer. He wanted change. I got into the office. They were counting money. It was a lot of money. It was bundles of Kshs 1000/-. I gave the customer change. I don't know about their business. The wife also got there. Jamumo had left. I left them there, I went to fetch water. When I came back I found Jamumo had left and the wife of my employer was there. I heard the Plaintiff said he gave Jamumo Kshs 280,000/-. Later I heard it was a loan of Kshs 280,000/-. It is the Plaintiff I heard saying about it.”* 8. On cross examination, he stated that, *“I got into the office. They were counting money. The Plaintiff's wife was not in the office. Jamumo had left when I came back. I found the Plaintiff talking with his wife. Maybe she got in when I was fetching water. When they were counting the wife was not there. I didn’t see her. When Jamumo and the Plaintiff were there I got inside to pick change.”* 9. **PW4 Jeremiah Nyaga Muchira**, testified that, *“I come from Kangaita. I am a farmer. I know James Kinyua. I have known him about Thirty years. I know Jenaro for many years. They are both my friends. We don’t have any dispute. We were in dowry group for many years. We assist each other especially in payment of dowry. In 2016 they were both members of that group. James was an official as a treasurer. Jamumo and I were members. James sent me as an elder to Jamumo. He asked me to ask him to pay his loan of Kshs 280,000/=. I told Jamumo. He said he was aware and he would pay. It was in June 2016 but I don’t recall the date. He said he will pay. I didn’t ask him when as we were friends. I don’t think he paid because he moved to court. I asked him why they were in court and they were friends. He said since it is in court the court should decide he pays if it does. He is an MCA. I went three times to the Assembly. At one point we went with the Plaintiff. He was leaving. We were the three of us. He did not deny. I don’t know why he refused to pay. We lend each other money as members of dowry group. We don't do agreements as we are friends.”* 10. On cross examination, he stated that, *“In another group ham a Chairman. In this one I am a member. We were in the same group. We have records. I don’t have records in court. I was not present when the money was given. Mwore sent me three times to Jamumo. He agreed he owned money. There was no agreement written down.”* In re-examination, he stated that, *“He said he will not pay.”* 11. **DW1 Jenaro Namu Jamumo**, adopted his statement dated 27/9/2017 as his evidence in chief and produced the list of documents filed therewith as exhibits. He testified that, *“I come from Kirinyaga County. I am a farmer. In 2013-2017 I was a member of County Assembly for Mutithi Ward in Kirinyaga. I had a tender award letter of 16/4/2015 issued to Chalin & Jimflo Enterprises. I produce it as D exhibit 7. Acceptance D exhibit 8. He did not advance me money. I was arrested and charged in Criminal Case in CMCC 454/2016 at Kerugoya. I was convicted. I appealed in High Court Criminal Appeal 40/2018. My conviction and sentence was set aside. We were not lending money to each other. We never met and I never agreed to refund. I never met with any emissary. There was an issue placed in the County Assembly. It was a tender awarded to the Plaintiff’s company and his wife. It was a tender relating construction of a road. I complained after the award and handing over the site by the officials, the work done by the Company was shoddy. There was loud cry from the residents of the area. They did not get the value. James Mwore and his wife own this company. I raised it on Thursday 28/4/2016. I was arrested on 21/7/2016. In Paragraph 42 of the High Court Criminal Judgment. “Trial Magistrate erred in fact and law in failing to consider the business relationship between the complainant and the County Government, and the appellant’s complaints, as an MCA over the manner the said road construction was done, that could possibly have contributed to bad blood between the appellant and the complainant.” In paragraph 35, “There is doubt in the Court’s mind as to whether the appellant received any money in the sum of Kshs 280,000/- or any other amount from the complainant on the material date or at all.” This case should be dismissed. I seek costs. It was meant to publicly tarnish. My name as a public figure and intimidate me.”* 12. On cross examination, he stated that, *“I used to be an MCA Mutithi Ward from 2013-2017. I contested the seat in 2017. I did not succeed. He claimed he sent me money on 31/3/2016. We knew each other before that date. Not for so long. Not for over 27 years. Upon election as MCA and residence of Kerugoya then I was a group member. It was for men. We would attend dowry functions. It was a “chama”. The Plaintiff was also a member. I can’t know the total membership. It was more than 20. Members know each other physically. We would meet. Sometimes we would stay for over three months but later the meetings were frequent. The Plaintiff was the treasurer when I joined. He was removed. He misappropriated money. I don’t have evidence that he misappropriated money. By 31/3/2016 I had left the Chama. We ceased to be friends with the Plaintiff. I left in 2015. I never went to his shop. I knew where his business premises were at the time. I did not have his telephone number. Jeremiah was a Member of the chama. They fabricated a story. I did not go to that shop. I knew his wife physically. She is that one in Court. I did not have a grudge with his wife before 31/3/2016. We don’t have a grudge ever known. I did not have a grudge with Jeremiah. Even now I did not know Joseph Waweru. He testified in the criminal case. I don’t know if he no longer works for them unless you inform me. I don’t know if he did not work for them when he testified in the criminal matter and now I did not know he had stopped working. I don't know him. Joseph referred to me as Senator. My late father was a Senator in 1963. My brother business is Senator funeral services. It is not my business. I am an employee there. It is my brothers company. It is a business name. He said he withdrew money on that date. He fabricated the whole story. He was annoyed I complained about his shoddy work. There was no written agreement or note or memorandum. To me friends don't transact without writing. I did not share trust with him. For me people don’t transact without writing. There was nothing like trust. The Ward was Mutithi Ward. He did a shoddy job. I raised the question on 28/4/2016 in the County Assembly. It was after 31/3/2016. The road was Kandongu-Rukanga road. The Company was the Plaintiff's and his wife. They confirmed it was their company. I have not produced documents to their ownership. It was directed to the witness referred to his question in the proceedings in the County Assembly. It was directed to the Chair of Public works and infrastructure. He was a colleague in the County Assembly. He was Hon. Sammy Maina. There were complaints from the residents. I also confirmed. There were very many complainants. I don’t have a list of complainants. I am asking whether it was paid. The road was in the ward. I had visited the site. The road was done shoddy. Laying of Calvert’s, they were not laid murraming was not done, grading was not done. He did not give a report that time. He did not give a report I can produce. It was not a scheme to retune to pay him. I am not a Civil Engineer. I am a Politician. Construction of road contracts is supervised by Engineers from the County Government. I don’t know if the money is paid in bits. I don’t know if he was paid. It is from the County Assembly this Hansard. It reflects proceedings of Parliament. They are recorded by a gadget called Hansard. I don’t know the official title of the one who records. I don’t know the one who certified the Hansard. I relied on this document in the Appeal and Criminal case. This is a demand dated 9/8/2018 I received it. I did not respond. The letter had lies. It was margination. It was not true. The contents were lies. Despite the conviction being quashed I leave to court. I don’t understand the standard of proof. I am not a Lawyer. I don’t know if the court found some prosecution witnesses were not called. I saw Jeremiah. He testified. He said he called me to beseech me to pay. I don’t know if he had my number. That time we had numbers when we were at the Chama. He never called me in 2016. I can’t recall if we had seminars in 2016 at Mombasa. Jeremiah never came to the County Assembly. They operate as a cartel. They con people of money or other interest. It is called people. I have never reported to the police. They frame other people. That time the members of the County Assembly were 30. They did a shoddy job in my Ward. I don’t know if they did the same in other Wards. On 31/3/206 I can’t recall how spent the day. I can't recall if I went to the County Assembly. I never took any money from him. I was not a member of the tender committee that awarded road tenders. They can tell us why they are pursuing me. I did not write his documents.”* 13. In re-examination, he stated that, *“Plaintiff produced the proceedings of the Criminal trial. The Plaintiff was PWI. He said Florence is my wife and business partner. He said he transacted under Charlin and Jimflo Company. PW2 was Florence. She said she co-owns the company with her husband. Joseph Waweru testified in the Criminal case. He was PW-3. Jeremiah Nyaga Muchira was PW:4-. In the Criminal Appeal Para 35 “The contradictions go to the root of the Case.” I did not sign any document that I received the money. I am not privy to withdraw of money by the Plaintiff. There is no connection of the issue of withdraw and my receipt of any money. It was given on 31/3/2016 allegedly. Prior to the report to the police there was no demand. My duty was representation I was the people’s representative. I could complain over the shoddy work. The Plaintiff has not adduced evidence of payment or that the work was of good quality. At Paragraph 38 of the Criminal Appeal – “No tender documents were produced to demonstrate the existence of any such tenders being given.” The two issues of the tender and lending was addressed. Demand is dated 9/8/2018. It was after the criminal trial in the lower court. No demand was issued after the Appeal. I never received Kshs 280,000/-.”* **Submissions** 1. The Appellant cites ***Selle & another v Associated Motor Boat Co. Ltd & Others (1968) EA***, on the duty of the first appellate court. He faults the Respondent for failing to prove the existence of a debt of Ksh. 280,000, and cites ***Osoro Manvinsa v Lavington Security Limited (Civil Appeal 55 of 2019) [2023] KECA 1376 (KLR)***. 2. The Respondent lauds the trial court for judiciously considering the pleadings and applying the applicable legal principles to reach the correct conclusion. He urges that in law, oral agreements, if proved through evidence are lawful and enforceable, and the acquittal of a person does not absolve him of civil liability, and cites ***Robinson v Oluoch [1971] E.A 376***. **Analysis and Determination** 1. From the grounds of appeal, the issue for determination is whether the Respondent proved his case on a balance of probabilities. 2. It must be appreciated that the burden of proof on the Respondent was at all times on a balance of probabilities, and not higher. The court is minded that the outcome of the criminal case, had no bearing on the civil culpability of the Appellant. 3. The onus of proof of oral agreements was extensively discussed by the Court of Appeal in ***Attorney General v Kabuito Contractors Limited [2023] KECA 230 (KLR***, as follows: ***“In any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff (now the respondent) as in the present case, and where there are two mutually destructive stories, the plaintiff (now the respondent) can only succeed if he satisfies the court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant (now the appellant) is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the court will weigh up and test the plaintiff's (now the respondent’s) allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff (now the respondent) then the court will accept his version as being probably true. If, however, the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case (now the respondent) any more than they do the defendant's, (now the appellant), the plaintiff can only succeed if the court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false... The party seeking to enforce an oral agreement has the difficult task of proving the terms of the agreement as well as the existence of the verbal agreement. A written agreement is itself a proof that there was an agreement, but an oral agreement is merely a verbal communication of proposal and acceptance which is difficult to prove in future if any disputes arises. The burden of proof totally lies on the person who is claiming the right to prove the existence of an oral agreement. The plaintiff in this matter had that burden of proving the existence of the oral contract and the terms of the oral agreement.”*** 1. The Respondent testified that on the material day, at the behest of the Appellant, he went to the bank to withdraw Ksh. 500,000, and while in his office in the company of his employee, PW3 and wife, PW2, the Appellant came to collect Ksh. 280,000. He restated that, ***“I sued Jenaro Namu Jamumo. I know him well.******We would lend each other money. We usually never did agreements. We were great friends even at family level. We never wrote agreements. On 31/3/2016 at 10.00 am I was called by Jamumo. He said he was at the office. He asked I get him a sum of Kshs 300,000/-. I went to KCB Bank. I withdrew Kshs 500,000/-. He came to my shop. My wife Florence Wanjiku was present. My worker Waweru was present. We got into my office at the shop. The money was in a khaki envelope. I gave him Kshs 280,000/-. My wife saw me count the money. Even Waweru. He said he would refund before one month was over. I had loaned him money before like two times before. When he was leaving he said if he failed to refund he would give a tender to supply pipes using his office as an MCA. The profit would cover my loan. I believed he was able to do that. After one month he kept telling me lies. I reported the issue to the police. We had a social group of thirty members. I asked one group member Jeremiah Muchira. He knew us well. I sent him to the defendant to ask him to pay. He said he was aware and he would pay. He said he was busy. We kept speaking on phone. He said he would pay. He was charged in court. He was found guilty. He preferred an Appeal. The decision was overturned.”*** 2. His testimony was corroborated by PW2 whotestified that, ***“On 31/3/2016 Jenaro came to our shop. He found my husband had come from the bank. I found as he was confirming the money. It was Kshs 280,000/-. Jenaro confirmed by counting. I heard them. My husband asked if it was Kshs 280,000/-. He agreed. I was at the door of the office. I stood there as they counted the money. The money was in Khaki envelope from the Bank where he came. They were close friends. I saw Jenaro receive the money.”*** Even on thorough cross examination, she remained resolute that she witnessed the exchange of funds at PW1’s office. 3. PW3testified that, ***“On 31/3/2016 I was at work. He asked I wait for a while as he left. When he came back he got into his office. He had an envelope. Jamumo came to his office. He was a good friend to my employer. I got into the office. They were counting money. It was a lot of money. Later I heard it was a loan of Kshs 280,000/-. It is the Plaintiff I heard saying about it.”*** 4. PW4 asserted on cross examination, that, ***“Mwore sent me three times to Jamumo. He agreed he owned money. There was no agreement written down.”*** 5. Whilst the Appellant vehemently denied being advanced money by the Respondent, he acknowledged that they were well known to each other and members of a dowry group. He accused the Respondent and Jeremiah of operating a cartel to con people, which accusations he failed to substantiate, as he did not make any report to the police. 6. He testified that, ***“I had a tender award letter of 16/4/2015 issued to Chalin & Jimflo Enterprises. He did not advance me money. We were not lending money to each other. We never met and I never agreed to refund. I never met with any emissary. There was an issue placed in the County Assembly. It was a tender awarded to the Plaintiff's company and his wife. It was a tender relating construction of a road. I complained after the award and handing over the site by the officials, the work done by the Company was shoddy.”*** 7. On the evidence before this court, it is clear that the Respondent proved on a balance of probabilities that he not only entered into a valid oral agreement with the Appellant for Ksh.280,000, but also that the appellant had breached the said agreement. 8. This court finds that there was no misapprehension of the facts and the evidence on record by the trial court, to warrant this court’s interference. **ORDERS** 1. Accordingly, for the reasons set out above, this court finds the appeal is without merit and it is dismissed. 2. There shall be no orders as to costs. *Orders accordingly.* **DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Maina Kagio for Appellant Mr. I. W. Muchiri for the Respondents.