https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10083

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E060 OF 2025** **MARY NJERI WANGAI……………….…………...…………..…………..APPELLANT** **VERSUS** **MERCY WAMBUI KINYUA..………………....…………………………..RESPONDENT** **(Being an Appeal from the Judgment of Honorable Grace Waithira (R.M) delivered on 20/3/2025 at Kerugoya Small Claims Court No. E027 of 2025)** **JUDGMENT** 1. By a statement of claim dated 29/1/2025, the Respondent sued the Appellant seeking Ksh. 80,000 and costs of the claim plus interest. The Respondent pleaded that on 15/8/2024, she lent the Appellant Ksh. 80,000, which was to be repaid by 15/1/2025. The amount was not paid, as a result of which she suffered loss and pain. 2. The Appellant filed her Response to the statement of claim dated 6/2/2025 denying the claim, and prayed for its dismissal. 3. Upon full hearing of the claim, the trial court awarded the Respondent Ksh. 80,000 together with costs of Ksh. 25,600 plus interests. **The appeal** 1. On appeal, the Appellant vide her memorandum of appeal dated 17/5/2025 set out 6 grounds as follows: 1. *The learned Magistrate erred in fact and law in holding that there was a valid agreement between the parties and therefore arriving at a wrong decision.* 2. *The learned Magistrate erred fact and law in holding that the signature and the thumbprint on the alleged agreement belonged to the appellant whereas it was not and therefore arriving at a wrong decision.* 3. *The learned Magistrate erred in fact and law in holding that the Applicant did not assert that she has paid the loan whereas she could not have paid any loan which Appellant did not receive.* 4. *The learned Magistrate erred in fact and law by failing to allow the appellant to call witness to prove the case therefore giving a wrong decision.* 5. *The learned Magistrate erred in fact and law in wrongly analysing the evidence and making an erroneous judgement.* 6. *The learned magistrate erred in fact and law in making her judgement on 20th March 2023 and the same was erroneous judgement.* **Duty of the Court** 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See **Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123**). **Oral Evidence** 1. **CW1 Mercy Wambui Kinyua**, the Respondent herein and the Claimant in the trial court, adopted her statement dated 29/1/2025 as her evidence and produced the documents filed therewith as exhibits. She testified that, *“I also have a demand notice and a Loan agreement. I want the Court to grant my orders.”* 2. On cross examination, she stated that, *“I have her the in cash. She signed that she had gotten the 80,000/=. The agreement does not say she received Ksh 80,000/=. In the agreement it says that she wanted a loan from me. Paragraph 2 says that she agrees to repay Ksh 80,000/=. I do not have an answer to whether there was an offer for me to loan her and that she accepted the loan of 80,000/=.”* 3. In re-examination, she stated that, *“This agreement we recorded with Mary and it has a witness. I have not studied law. In this agreement I am referred to as a lender and Mary is referred to as a borrower.”* 4. **RW1 Mary Njeri Wangai**, the Appellant herein adopted her statement dated 13/3/2025 as her evidence in chief. She testified that, *“I live in Kimandi. I am a farmer. I am the one sued.”* 5. On cross examination, she stated that, *“I have no relationship with Kinyua Karimi. We do not know each other very well. We met on the first meeting. If I met him I would know it is him. I have not seen that agreement. You did not serve me. (Shown the agreement in Court) I have seen the agreement. In my statement I have said I had not signed the agreement. I have not talked about signing in my response. My ID number is 9303868, it is in the agreement and there is a thumbprint. I have not denied it the thumbprint is mine. Kinyua Karimi was a witness in that agreement saying he saw it being signed. I have no dispute with Kinyua Karimi but maybe he will come and tell the Court if he has a grudge with me. I cannot talk on his behalf. In my statement I have talked about 32,000/=, nothing in the agreement says it is mine. She said she was to take it to be stamped. The agreement has no stamp but I gave her 2,000/= for stamping.”* 6. In re-examination, she stated that, *“That ID no. in the agreement is mine as we were negotiating, I gave them a copy of my ID. I have also been asked about the signature, it is not mine but I have not indicated that in my statement. I did not affix my thumbprint on the agreement was done, it was indicated I was to pay 80,000/= but that was not part of the agreement but I removed myself from the agreement.”* **Submissions** 1. The Appellant denies ever signing or putting her thumb print on the purported loan agreement, and prays for the appeal to be allowed with costs. 2. The Respondent cites ***Selle and Another v Associated Motor Boat Company Ltd & Another (1968) EA 123***, on the duty of the first appellate court. She urges that she discharged her responsibility under sections 107, 108 and 109 of the Evidence Act in proving her case before the trial court, and cites ***National bank of Kenya Limited v Pipe plastic Samkalit (K) Ltd (2002) 2 EA*** for the proposition that parties to a contract are bound by the terms and conditions thereof. She lauds the trial court for finding that the Appellant did not adduce sufficient evidence to prove that the agreement was forged, and cites ***Mbogo & Another v Shah (1968) EA and Patel v E.A Cargo Handling Services Limited (1974) E.A 75***. **Analysis and determination** 1. From the grounds of appeal as framed, the sole issue for determination is whether there was a valid agreement between the parties herein. 2. The Respondent testified that the Appellant acknowledged receipt of Ksh.80,000 in the presence of a witness named Kinyua Karimi and this evidence was not meaningfully challenged by the Appellant. 3. At paragraph 2 of the agreement dated 15/8/2024 it is provided that, ***“The Borrower agrees to repay 80000 to the Lender on 15/01/2025.”*** 4. After acknowledging that she knew Kinyua Karimi, the Appellant testified that, **“*My ID number is 9303868, it is in the agreement and there is a thumbprint. I have not denied it the thumbprint is mine. Kinyua Karimi was a witness in that agreement saying he saw it being signed.”*** 5. The Appellant merely denied having executed the agreement, but failed to adduce any evidence to rebut its authenticity or validity. She further alleged that the agreement was a forgery, without laying any evidentiary foundation to substantiate that assertion. Consequently, the allegation remained bare, unsupported by any credible evidence. 6. This court finds that the Respondent proved her case against the Appellant on a balance of probabilities. The court further finds that the trial court properly evaluated the evidence on record in arriving at the impugned decision, and there is therefore no basis to interfere. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds the Appellant’s appeal to be without merit and it is dismissed. 2. The appellant shall pay the costs of the appeal to the Respondent. **DATED AND DELIVERED THIS 9TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mary Njeri Wangai for Appellant in person Mr. Munene for Respondent