https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7665

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E335 OF 2024** **JERUSHA MICHUI ………………..………………………..……… APPELLANT** **VERSUS** **MARY MWANGILI IKWINGA ….………………..RESPONDENT/APPLICANT** *(An appeal from the judgment and decree of the small claims court of Kenya at Meru (Hon. Nyamweya, Adjudicator) dated and delivered on 30th October 2024 in SCCCOMM No. E544 of 2024)* **JUDGMENT** **Background** 1. The respondent herein filed suit in the Small Claims Court at Meru seeking judgment for Kshs.200,000/= arising out of a friendly loan advanced to the appellant which the appellant had failed to repay. 2. The appellant denied the claim and filed a counter-claim for Ksh.369,920/- also claiming to have advanced to the respondent. 3. In its judgment, the trial court allowed the respondent’s claim together with costs. It dismissed the appellant’s counter-claim. **The appeal** 1. Aggrieved by the said judgment, the appellant filed a Memorandum of Appeal dated 23rd November, 2024 which set out the following grounds: 2. The trial court erred in failing to consider the evidence by appellant that she had lent the respondent Kshs.369,920. 3. The trial court erred in refusing to rely on the Mpesa statement extract statement that proved a total of Kshs.89, 920 as direct payments from the appellant to the respondent. 4. The trial court errored by adopting the Mpesa payment by the respondent to the appellant was a friendly loan when there was no evidence to that effect. 5. The trial court erred in law and fact by holding that the appellant should pay the respondent Kshs.200,000/= as commission when there was no evidence on record for the same. 6. The trial court erred in ignoring and /or failing to consider both the appellant’s evidence and the 1st respondent’s admission in cross examination that she received the Mpesa payments in her registered mobile phone. 7. The trial court erred by not taking into consideration the Mpesa statements yet the respondent did not deny any of the transaction in the summary of Mpesa extract. 8. The trial court erred in law and fact by failing to notify the appellant that the documents submitted could not be relied upon yet the appellant had informed the court in that she can provide the detailed Mpesa statements if the courts deemed it fit. 9. The trial court erred in law and fact by failing to appreciate and/or consider the respondent’s admission that the Kshs.89,920 was received in her Mpesa statement. 10. The appellant sought the following orders: 11. That the appeal be allowed. 12. That the judgment and decree of the Small Claims Court delivered on 31st October 2024 be set aside; and 13. Costs of this appeal be provided for. **Appellant’s Submissions** 1. It was submitted that the respondent’s allegation of the friendly loan was not supported by any acknowledgement agreement, communication or corroborative evidence. That the trial court erred in failing to consider the appellant’s counter-claim that she had lent the respondent Kshs.369,920/= and that the Kshs.200,000/= received was an offset against the lodged debt. That the trial court erred by failing to appreciate the respondent’s admission that kshs.89,920/= was received in her Mpesa account. **Respondent’s Submissions** 1. It was submitted that the respondent had proved that she advanced the appellant the sum in question in two tranches. That he appellant had failed to prove her counter claim. **Analysis and Determination** 1. The Small Claims Court Act at Section 38 provides; 2. **A person aggrieved by the decision or an order Appeals. of the Court may appeal against that decision or order to the High Court on matters of law.** 3. **An appeal from any decision or order referred to in subsection (1) shall be final.”** 4. A matter of law or issue of law is a question of law as defined in Black’s Law Dictionary, 9th Edition, as follows: **“An issue to be decided by the judge, concerning the application or interpretation of the law; or A question that the law itself has authoritatively answered, so that the court may not answer it as a matter of discretion; or** **An issue about what the law is on a particular point; an issue in which parties argue about, and the court must decide, what the true rule of law is.”** 1. In the case of **J N & 5 Others -vs- Board of Management, St. G School Nairobi & Another [2017] eKLR**, in addressing a point of law and a point of fact, Justice Mativo stated thus: **“In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. In law, a question of fact, also known as a point of fact, is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.”** 1. It is trite law that failure to consider evidence adduced is an error in law and this court has the jurisdiction to hear the appeal. 2. It is trite law that the burden of proof lies on the party who alleges a particular fact. 3. I have looked at the judgment by the trial court, despite appreciating that fact, the trial magistrate went ahead to find that the appellant did not prove that she gave the respondent Kshs.369,920/=. 4. What the trial magistrate should have done was to examine the respondent’s evidence in support of the claim and the appellant’s evidence in support of the counter claim. In failing to do so the court erred in law. 5. I have looked at the trial court record. There is no doubt that the appellant received Kshs.200,000/= from the respondent as follows: 6. Kshs.150,000/= on 24/12/2020 7. Kshs.50,000/= on 4/2/2021 8. From the respondent’s evidence, she did acknowledge receipt of Kshs.89,200/= but stated that this was for her mother. No further explanation was given. 9. I also note that from the respondent’s own Mpesa statement she received various sums from the appellant, as follows: 10. Kshs.2,200/= on 12/12/2020 11. Kshs. 1,500/= on 2/1/2021 12. Kshs.1,100/= on 9/1/2021 13. Kshs.1,600/= on 15/2/2021 14. The respondent did not explain what these payments were for. 15. It is thus clear that the respondent while proving that she sent some money to the appellant did not prove that this was a friendly loan as alleged. If it was then why did she not deduct the sums paid to her by the appellant. 16. Having considered the matter, I find that the claim by the respondent was not proven. The mere receipt of money is not proof of debt. It could have been a transfer of funds for anything. 17. I am therefore inclined to set aside the judgment of the trial court and substitute it with an order dismissing the respondent’s claim. 18. As for the counter claim by the appellant, I also find that she failed to prove that she had advanced any money to the respondent. 19. I therefore also dismiss the counter claim. 20. Each party shall bear their own costs of this appeal and the lower court. Orders accordingly. **Dated, signed & delivered at Meru this 2nd day of June, 2026.** **H.M. NYAGA** **JUDGE**