https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8370

Weya v Ogolah (Civil Appeal E177 of 2024) [2026] KEHC 8370 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8370 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E177 of 2024 A Mabeya, J June 12, 2026 Between Judith Akinyi Weya Appellant and Collince Ogolah Respondent Judgment 1.The appellant filed a statement of claim dated 26/6/2024 against the respondent seeking judgment in the sum of Kshs. 180,000/-. The claim arose out of an alleged oral agreement in which the appellant averred that the respondent was to open an online writing account on behalf of the appellant. 2.The respondent entered appearance vide a response dated 23/7/2024 wherein he denied the claim and sought the same to be dismissed with costs. 3.The matter proceeded to trial and in its judgment, the trial court found that the appellant failed to prove her case on a balance of probabilities and as such dismissed the same. 4.Being dissatisfied with the said judgment/decree, the appellant lodged this appeal vide the Memorandum of Appeal dated 12/9/2024 and raised six (6) grounds of appeal as follows: -a.The learned magistrate misunderstood the evidence before her, wrongly analysed the evidence and therefore came to wrong conclusions of facts and law.b.The learned magistrate erred in law and in fact by dismissing the suit herein on ground that the claimant did not call her brother as a witness without taking into consideration that it is the respondent who alleged that he opened the account which was later run down by the claimant’s brother therefore it’s the respondent who ought to have proven the same by calling the claimant’s brother as his witness.c.The learned magistrate erred in fact and in law by finding that the respondent opened the account yet no proof was brought before the court to show that indeed the said account was opened.d.the learned magistrate erred in fact and in law relying on the respondent’s testimony that the business was a partnership and disregarded the testimony of the claimant that she only engaged the respondent to open for her the account which she paid fully as was agreed.e.The learned magistrate erred in fact and in law by relying on unreliable evidence from one Duke that the money which was sent to ESCROW account was sent to him and the same was for the purpose of opening an account in issue herein.f.The learned magistrate totally misunderstood and wrongly evaluated the evidence before her and therefore arrived at a wrong conclusion. 5.The parties agreed to dispose the appeal by way of written submissions which I have duly considered in determination of this appeal. This being a first appeal, the Court is duty bound to evaluate the evidence before the trial court afresh and come to its own independent findings and conclusions. See Selles & Anor vs. Associated Motor Boat Co Ltd & Others [1968] EA 123. 6.Before the trial court, the appellant testified as CW1. She adopted her statement dated 26/6/2024 as her evidence in chief and produced her documents of the same day as C Exh 1 – 2. Her case was that she entered into an oral agreement with the respondent for the opening of an online writing account for Kshs. 180,000/-, an amount paid through Mpesa number 0113xxxxxx but the respondent failed to open the said account. 7.In cross-examination, she stated that the respondent was her brother-in-law and that she was not familiar with anyone known as Duke though she had communicated with him and he confirmed selling online accounts. She further admitted that she had not adduced all the communication between herself and both the respondent and Duke. That she was in business with the respondent and not Kevin though she used a number, 0745xxxxxx, belonging to her daughter to communicate with the respondent. 8.Further, that she was aware that her friend Diana Manyara received Kshs. 15,000/- on the 7/11/2023 and 3/11/2023 for a different purpose and not for purchase of any account. That the respondent informed her that he was saving money to purchase another account and further that she was not aware that the initial account was closed. 9.In re-examination, she stated that the amount was Kshs. 180,000/- and that she told Diana to send the same directly to the respondent to avoid transaction costs though Diana was not in the business of opening account. 10.The respondent testified as RW1 and adopted his witness statement dated 24/7/2024 as his evidence in chief. In cross-examination, he admitted that he had an oral agreement with the appellant for purchase of an online account at Kshs. 180,000/- through one Diana though he did not know who Diana was. That he was to buy the account from one Duke but not hand it over to the appellant but rather together with the appellant and Kevin, they were to jointly open a company for online writing. That the appellant’s brother, Kevin, was the account manager. 11.That he had purchased the account as evidenced in the Mpesa message adduced through a safe escrow which was Duke’s company for online writing. That the appellant had opportunity to work on the account as she logged in however the account was terminated due to mismanagement. That consequently, through an order of the OCS Ruiru, Duke Edwin was ordered to compensate Kshs. 95,000/- for writers of the said account. 12.In re-examination, the respondent reiterated that they purchased the account as a group. That out of the Kshs. 95,000/-, Kshs. 27,800/- was for money worked for and the rest as a fine imposed by the OCS for failure to produce the pioneer account. 13.RW2, Edwin Duke Mogaka testified that he was a director in safe escrow and brokerage. That the respondent contacted him seeking an online writing account which he paid for in installments totaling to Kshs. 195,000/- in August 2023. That the respondent started using the account but the said account was terminated after some time for quality checks which information the respondent communicated to him. That the termination was due to the respondent and other writers using it. 14.That he only met the respondent when summoned to the police station where they agreed on compensation of Kshs. 95,000/-. 15.In cross-examination, he testified that he did not know the appellant in the purchase of the account but rather dealt with the respondent and the appellant’s brother. 16.RW3, Akinyi Millicent Ouma adopted her statement dated 24/7/2024 as evidence in chief. Her testimony was that there was an agreement between the appellant and respondent for purchase of the online writing account. That the account was for a group and that the appellant agreed that if her brother Kevin was present she would be comfortable with him managing the account. That the appellant was given evidence of purchase of the account. 17.This was the evidence presented before the trial court upon which the trial adjudicator made her decision. 18.I have considered the evidence tendered before the trial court. This being an appeal from the Small Claims Court, it is important to point out that Section 38 of the Small Claims Court Act provides for the jurisdiction of this Court in determining appeals from the Small Claims Court. It provides thus; -“ 1.A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. 2.An appeal from any decision or order referred to in subsection (1) shall be final.” 19.It is clear from the foregoing that, jurisdiction of this Court from the Small Claims Court is only on matters of law and not factual issues. It is not enough for a party to plead in its grounds of appeal that the trial magistrate “erred in law” then proceed to set out issues of facts that they are aggrieved with. 20.A perusal of the Grounds of Appeal elucidated by the appellant reveals that they are all matters of fact. They invite this Court to consider the issues of facts which were proven or not proven before the trial court. These are matters that this court has no jurisdiction to entertain. This Court cannot re-look or second guess the trial court’s findings on evidence. 21.Further, this Court has similarly gone through the proceedings by the adjudicator and has not come upon any instance of whimsical exercise of discretion and the same has not been demonstrated by the appellant. It is only where this is shown to have occurred that the matter would amount to an issue of law. 22.The upshot of the above is that the Court finds the appeal to be without merit and dismisses the same with costs.It is so decreed. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.A. MABEYA, FCI ArbJUDGE