https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7321

Owaga v Muchiri (Civil Appeal E1008 of 2024) [2026] KEHC 7321 (KLR) (Civ) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7321 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1008 of 2024 LP Kassan, J May 28, 2026 Between Joseph Odhiambo Owaga Appellant and Paulo Chege Muchiri Respondent Judgment 1.The history of this matter is that the Appellant signed an agreement with the respondent who advanced him a loan of Ksh 640000 to be paid upon the Appellant’s payment of gratuity. The agreement (which was on the Appellant’s own handwriting) stated and I quote “Have today borrowed and received Ksh640,000 from the respondent “. This agreement is not disputed. The major dispute that is for consideration is whether the Ksh640,000 was actually paid on the date of the execution of the agreement or not. The events that followed the execution of this agreement will clearly demonstrate prove of the issue as to whether payments were made or not and I shall analyze them as below; 2.The lower Court’s finding was that the agreement was binding or rather that the full loan of Ksh640,000 was advanced to the Appellant. This prompted the appeal which is now before me. 3.The Respondent testified that on the date of signing the agreement, he actually gave out Ksh464,500 and not Ksh 640,000 as per the agreement. This significantly changes the contents of the signed agreement. There was no further agreement to vary the initial agreement. The Court therefore is left to cast doubts on the initial agreement since what the Appellant wrote or indicated in his oral testimony was not the truth in terms of payments- and this is acknowledged by the Respondent because of the lesser amount of what ought to have been the correct deposit. 5.The Appellant and the Respondent agree that there was a further Ksh175,500 which was paid by the Respondent to the Appellant via an Mpesa. According to the Appellant, this was the only monies advanced to it as a loan instead of the Ksh 640,000 and so if this amount is deducted from repayment of Ksh 80,000, an amount paid in settlement of the loan by the Appellant, the total that the Appellant owed the Respondent would be Ksh 95,000 and not Ksh 560,000 as claimed by the Respondent. The Respondent does not deny that the Appellant paid Ksh 80,000 and so this Court must determine whether Ksh464,500 was paid as Per the oral evidence of the Respondent or not. 6.The facts are clear as I have said above- that the agreement did not reflect the correct position of its actual implementation because not all monies were paid on the date of execution of the agreement as stated by the Appellant but instead, a further Ksh175,500 was paid to fill the balance left after an initial “alleged disputed “physical payment of Ksh464,500. By admitting that he had to pay Ksh175,500 via Mpesa way after signing the agreement in order to comply with a loan offer of Ksh640,000, the Respondent cast doubts on the provisions of the agreement that the said Ksh 640,000 was paid on the date of the signing of the agreement. This is buttressed by the evidence of the Appellant that this amount was not paid at all and so it is correct to say that the agreement did not reflect the true position of what transpired on that date. This being the position, it was incumbent upon the Claimant/Respondent to prove that he indeed defied the payment provisions of the agreement and paid Ksh464,000 instead of the amount captured by the agreement- and this prove I do not see because he did not call the alleged eye witness or money/paper trail evidence. The onus was upon the Claimant/respondent to prove that although the agreement was not fulfilled as signed, there was prove that the entire amount was advanced to the Respondent albeit in default of timelines provided by the agreement 7.Generally, Courts have been consistent in determining cases where written agreements are restructured orally or by conduct of parties. The party that fails to comply in mode of payment must prove that despite the fact that it did not comply with the agreement, all payments were after all made. It is not enough to say that a lesser amount was paid without calling an eye witness or justifying the said lesser amount to surmount a rival assertion that in fact no payments was really made in the first place but a documented one much later which becomes the only Payment for consideration. 8.The onset of the above is that the Respondent did not prove the payment of Ksh464,500 on the date of the execution of the agreement, a burden placed upon him from the moment he disregarded to comply with the provision the agreement. 9.The Conclusion of the above is that the Appeal succeeds and is allowed. Each party shall bear own costs. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 28TH DAY OF MAY 2026.HON L P KASSANJUDGE