https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11656

**IN THE HIGH COURT OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISON** **CIVIL APPEAL NO E628 OF 2024** **LEMIZ INTER TRADERS LIMITED……………………..APPELLANT** **VERSUS** **JANE WANJIRU NYAMU……………………………………RESPONDENT** **JUDGMENT** **Introduction** 1. This is an appeal against the judgment of the Small Claims Court delivered on 26th April 2024 by Hon. C.A Okumu in Milimani SCCCOM No. E4633 OF 2023 whereby the appellant's claim for recovery of Kshs.400,000/= together with costs and interests was dismissed for want of proof. 2. The appellant contends that the learned Adjudicator failed to properly evaluate the documentary evidence placed before the court and consequently reached a conclusion unsupported by the evidence. 3. The respondent opposes the appeal and maintains that she never received the disputed funds. **Appellant’s case** 1. The appellant filed a memorandum of Appeal dated 23rd May 2024 in which it raised several grounds of Appeal principally faulting the learned adjudicator for failing to consider the evidence presented at trial. 2. The Appellant filed submissions dated 5th November 2025 in which it pointed the court to the various documents filed in proof of their case. It relied on the cases of ***Kenya ports Authority vs Kuston (Kenya) limited (2009) 2EA 212*** and **Morgan Air Cargo Limited vs Everest Enterprises Ltd.** 3. It urged the court to re-look at the evidence, set aside the lower court judgment and find in its favor. **Respondent’s case** 1. The respondent filed her submissions dated 17th November 2025 in which she supported the lower court decision and urged the court to uphold the same as the appellant had failed to proof that a contract existed between the parties and that due to that contract there had been fraud leading to breach thereby causing damage to the appellant in the terms claimed. She urged the court to ignore the ongoing criminal case against her emanating from this transaction as it has no probative value in this case. 2. Reliance was placed upon the cases of ***Mursal & Anor vs Manese (suing as the administrator of the estate of Dalphine Kanini Masese (2022) e KLR*, *Moniks Agencies ltd v Kenya Airports authority (2025) e KLR, Sasil Investments k Limited & 3 others vs Cooperative Bank of Kenya (2025) e KLR*** and finally on ***Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others (2014) e KLR.*** 3. She urged the court to dismiss the appeal for lack of evidence. **Duty of this Court** 1. This being a first appeal, this Court is under a duty to reconsider the evidence, evaluate it afresh and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 2. That duty was authoritatively stated in ***Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123***, where the former Court of Appeal for East Africa held that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, though making due allowance for the fact that it did not hear or see the witnesses. The same principle was reiterated in ***Peters v Sunday Post Ltd [1958] EA 424.*** 3. Likewise, in ***Kiruga v Kiruga & Another [1988] KLR 348***, the Court of Appeal held that an appellate court may interfere where the findings of the trial court are based on no evidence, on a misapprehension of the evidence or on wrong principles. **Issues for Determination** 13. The appeal raises three issues: 1. ***Whether the appellant proved that Kshs.400,000 was transmitted to the respondent.*** 2. ***Whether the trial court properly evaluated the documentary evidence.*** 3. ***Whether the appellant proved its claim on a balance of probabilities.*** **Analysis** 1. The evidence before the trial court was largely documentary and substantially disputed. 2. The parties entered into an agreement. The appellant produced a Super-Agent Agreement dated 1 March 2021 signed by both parties. Pursuant to that arrangement, the appellant operated M-Pesa agency business and had issued the Respondent with an M-Pesa line under the name Strategic Realities Super Gods Favor with Short Code No. 2035842. 3. The appellant's evidence was that on 7 February 2023 its director instructed an employee to transfer Kshs.400,000 to another M-Pesa agent. The employee mistakenly transferred the amount to the respondent because another intended recipient bore the same first name, "Jane." 4. The respondent acknowledged having entered into a contract with the Appellant’s other company Strategic Realities Limited but not as a super-agent. She also denied ever receiving or withdrawing the funds. She produced a sample of a merchant contract but not what she signed with the Appellant. She denied signing the contract dated 1/3/21. 5. A look at the documentary evidence tells a different story. The appellant produced its official M-Pesa statements between it and Respondent. That statements specifically identify: * ***The receiving agent;*** * ***The receiving account;*** * ***The amount;*** * ***The transaction details;*** * ***The exact time of transfer.*** 1. Ordinarily, that evidence would already constitute strong proof that the transfer occurred. More significantly, the respondent herself in her list of documents dated 8/11/2023 produced a **float account** statement relating to the appellant with short code 092409. It showed that on the 7/2/23 the appellant sent to the respondent Kshs. 100,000/= at 13:17pm (which she acknowledged), Kshs 200,000/= at 14:05pm and Kshs 200,000/= at 16:52pm. These transactions are reflected at page 202-203 of the record of Appeal. That document is not an appellant-generated document. It originates from the respondent. 2. Remarkably, it reflects receipt of the identical amount at the same time into the Respondent’s **working account** short code 2035842 reflected at page 65-66 of the record of Appeal. This document was generated by the Appellant. 3. Consequently, both parties produced independent documents which corroborate the same transaction. The respondent did not deny at any given time that she was trading with the M-pesa short code 2035842.The only inconsistency lies in the respondent's oral denial. **Documentary Evidence Prevails** 1. Where documentary evidence generated contemporaneously with electronic transactions is consistent and mutually corroborative, a mere denial cannot outweigh it. 2. Section 107 of the Evidence Act places the burden upon the party asserting a fact. 3. The appellant discharged that burden by producing electronic transaction records demonstrating the transfer. 4. Thereafter, an evidential burden shifted to the respondent to explain why her own working account statement reflected receipt of Kshs.400,000 paid in 2 tranches if indeed no money had been received. She only acknowledged receiving Kshs 100,000/= sent earlier that day at 13:17pm. Further evidence shows that on the 7/2/23 she at 14:06pm, a minute after receiving the money from the appellant a transfer of the said amount was done to her float account and another one was carried out at 13:18pm. This is clear evidence that she transferred the monies received from the appellant.Her bare denial was insufficient to rebut the documentary evidence. 5. The Court of Appeal in ***Mbuthia Macharia v Annah Mutua Ndwiga & Another [2017] eKLR*** **(Civil Appeal 297 of 2015)** explained that while the legal burden remains constant, the evidential burden shifts depending upon the evidence adduced by either side. Once credible evidence is tendered establishing a fact, the opposing party bears the evidential burden of rebutting it. 6. In the present appeal, once the appellant produced its transaction records and the respondent's own records independently confirmed receipt, the evidential burden plainly shifted to the respondent. She offered no technical explanation. She did not demonstrate that: * ***The statement was erroneous;*** * ***The transaction had reversed;*** * ***The funds had failed to settle;*** * ***Safaricom's system malfunctioned;*** * ***The float statement*** was inaccurate. 1. Instead, she merely denied receipt whereas there is documentary evidence showing receipt and transfer of the funds between her working account and float account. Such denial cannot prevail against objective electronic records. **Failure to Evaluate Material Evidence** 1. A court is obliged to analyze all material evidence before reaching its findings. The learned Adjudicator appears to have focused almost exclusively on the respondent's denial while overlooking the remarkable fact that both parties produced documents confirming the same transaction. That omission amounted to a misapprehension of the evidence. 2. Where a trial court ignores material documentary evidence, an appellate court is entitled to interfere. 3. The Court of Appeal stated in ***Kiruga v Kiruga & Another [1988] KLR 348*** that appellate intervention is justified where findings are based upon a misapprehension of evidence or where the trial court demonstrably acted on wrong principles. 4. This Court is satisfied that the learned Adjudicator fell into precisely that error. **Standard of Proof** 1. Civil liability is established upon a balance of probabilities. The House of Lords decision in ***Miller v Minister of Pensions [1947] 2 All ER 372****,* which has consistently been applied by Kenyan courts, explains that proof on a balance of probabilities means that a fact is more probable than not. Here, the probabilities overwhelmingly favour the appellant because: * ***Both parties' electronic records record the same transaction;*** * ***The amount is identical;*** * ***The transaction time is identical;*** * ***The receiving agent number is identical;*** * ***There is no evidence of reversal;*** * ***There is no evidence of system failure.*** * ***There is evidence of transfer by the respondent*** 1. The respondent's oral denial is therefore inconsistent with the objective documentary evidence. **Conclusion** 1. Upon independently evaluating the entire record, this Court finds that the appellant proved, on a balance of probabilities, that Kshs.400,000 was transferred into the respondent's M-Pesa Super Agent account number 2035842. 2. The learned Adjudicator erred by failing to accord proper weight to the contemporaneous electronic transaction records and by preferring an unsupported denial over mutually corroborative documentary evidence. 3. The dismissal of the claim cannot therefore stand. **Disposition** 1. Accordingly, the appeal succeeds. 2. The judgment of the Small Claims Court dismissing the appellant's claim is hereby set aside. 3. It is substituted with judgment for the appellant against the respondent for: 1. ***Kshs.400,000/=;*** 2. ***Interest thereon at court rates from the date of filing suit until payment in full;*** 3. ***Each party to bear their own costs.*** 4. It is so ordered. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF JULY 2026.** **HON. L. P. KASSAN** **JUDGE**