https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7567

Shikami v Busaka (Civil Appeal E123 of 2025) [2026] KEHC 7567 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7567 (KLR) Republic of Kenya In the High Court at Kakamega Civil Appeal E123 of 2025 S Mbungi, J June 3, 2026 Between Kizito Libasia Shikami Appellant and Kelvin Asumo Busaka Respondent (Being an Appeal from the Judgment of Hon. M. Michuki (Adjudicator) delivered on 31st July 2025 in Kakamega Small Claims Court Case No. SCCCOMM/E022 of 2025) Judgment 1.This appeal arises from the judgment of the Small Claims Court at Kakamega delivered on 31st July 2025 in SCCCOMM/E022 of 2025 wherein the Court entered judgment in favour of the respondent herein for Kshs. 323,872 together with interest and costs. 2.The dispute arose from a Petroleum Retail Business Sale Agreement dated 10th July 2019 under which the respondent sold a petroleum retail business to the appellant at a consideration of Kshs. 550,000/=. It was not disputed that the appellant paid Kshs. 150,000/= upon execution of the agreement. The dispute concerned the balance of the purchase price. 3.The respondent contended that the appellant failed to pay the balance of Kshs. 400,000/= as agreed. The appellant, on the other hand, maintained that he made subsequent payments towards the debt and that parties had mutually agreed to waive the outstanding balance owing to difficulties encountered in operating the business. 4.Upon hearing the parties, the trial court found in favour of the respondent and entered judgment for Kshs. 323,872/= together with interest and costs. Aggrieved by that decision, the appellant lodged the present appeal. 5.I have carefully considered the record of appeal, the judgment of the trial court, the grounds of appeal and submissions filed by both parties. 6.This being a first appeal, this court is under a duty to re-evaluate and re-analyze the evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 7.In Selle & Another v Associated Motor Boat Co. Ltd, the court stated that a first appellate court is obliged to reconsider the evidence, evaluate it itself and draw its own conclusions, though making allowance for the fact that it did not see or hear the witnesses. Issues for Determination 8.Having considered the memorandum of appeal, the record of appeal and the submissions of the parties, the following issues arise for determination:a.Whether the trial court improperly admitted and relied upon documentary evidence produced by the respondent.b.Whether the trial court properly evaluated the evidence relating to payments allegedly made by the appellant.c.Whether the trial court erred in finding that the respondent had proved his claim on a balance of probabilities.d.Whether the judgment of the trial court ought to be interfered with. Analysis and Determination a. Whether the trial court improperly admitted and relied upon documentary evidence 9.The appellant argues that the trial court improperly relied on documentary evidence whose admissibility was not proved. 10.From the record, the documents relied upon included the Petroleum Retail Business Sale Agreement dated 10th July 2019, M-pesa statements, receipts relating to the sale of a generator and invoices concerning milk supply transactions. 11.Significantly, the existence of the sale agreement was admitted by both parties. The appellant expressly acknowledged execution of the agreement and payment of Kshs. 150,000/= thereunder. 12.The dispute before the trial court was therefore not the existence of the agreement but whether subsequent payments made by the appellant were in settlement of the balance due under the agreement. 13.The trial court evaluated the documentary evidence tendered by both parties and gave reasons for accepting the respondent’s explanation regarding the payments reflected in the M-pesa statements. 14.An appellate court will not lightly interfere with findings based on documentary evidence unless it is demonstrated that the trial court acted on wrong principles, misapprehended the evidence or reached a plainly erroneous conclusion. 15.I find no basis upon which it can be said that the trial court improperly admitted or relied upon inadmissible evidence. b. Whether the trial court properly evaluated the evidence relating to payments made by the appellant 16.The appellant contends that the trial court failed to properly consider all the evidence before it. 17.The record shows that the appellant relied on M-pesa statements indicating payments allegedly made to the respondent. The respondent explained that a substantial portion of those payments related to separate transactions involving the sale of a generator and a milk business. 18.To support that position, the respondent produced receipts and invoices showing the existence of those separate transactions. 19.The trial court analyzed the competing explanations and concluded that the Respondent’s position was more probable. 20.The court found that after accounting for the payments attributable to the other transactions, only Kshs. 76,128 /= could properly be credited towards the outstanding purchase price. 21.I have independently reviewed the evidence on record and find no basis for faulting that conclusion. The trial court considered both parties’ evidence and explained why it preferred the respondent’s account. 22.The appellant’s contention that there existed a gentleman’s agreement waiving the balance of the debt was not supported by any documentary evidence or independent proof. 23.Indeed, the burden of proving such variation of the written contract rested upon the appellant. 24.Sections 107 and 109 of the Evidence Act place the burden of proof upon the party asserting a fact. 25.The appellant did not discharge that burden. c. Whether the respondent proved his claim on a balance of probabilities 26.The standard of proof in civil cases is proof on a balance of probabilities. In Miller v Minister of Pensions, it was observed that a claim is proved on a balance of probabilities if it is more probable than not.The evidence before the trial court established the existence of the agreement, payment of Kshs. 150,000 and non-payment of the balance by the stipulated date. 27.The appellant’s defence rested principally on alleged subsequent payments and an alleged waiver of the debt. The trial court found that only part of the subsequent payments related to the agreement and rejected the assertion that the balance had been waived. 28.Having independently reviewed the evidence, I am satisfied that the respondent established his claim on a balance of probabilities. The appellant has not demonstrated that the findings of the trial court were against the weight of evidence or unsupported by the record. d. Whether the judgment of the trial court ought to be interfered with 33.An appellate court does not interfere with findings of fact merely because it would have reached a different conclusion. In Peters v Sunday Post Ltd, the court held that an appellate court should be slow to interfere with findings of fact unless they are based on no evidence, are based on a misapprehension of the evidence, or the trial court acted on wrong principles. 34.Having re-evaluated the entire record, I am satisfied that the trial court correctly identified the issues for determination, properly evaluated the evidence and reached conclusions supported by the material placed before it. 35.The appellant has failed to demonstrate any error of law or fact warranting interference by this court. Conclusion 37.The appeal lacks merit. 38.Accordingly, the appeal is hereby dismissed in its entirety. 39.The judgment delivered by Hon. M. Michuki in Kakamega Small Claims Court Case No. SCCCOMM/E022 of 2025 on 31st July 2025 is hereby upheld. 40.The respondent shall have the costs of this appeal. 41.It is so ordered. 42.Right of appeal 30 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 3RD DAY OF JUNE, 2026.S. N. MBUNGIJUDGEIn the presence of:-CA: Zilda/Velma.Mr. Lugano for the Respondent - present online.Appellant - absent.