https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12053

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **HCC COMM. APPEAL E006 OF 2025** **MICHAEL KINYUA GITHAIGA ------------------------------ APPELLANT** **VERSUS** **PAULINE NYAKINYWA MURAYA ---------------------- RESPONDENT** ***(Being an Appeal from the Decree of the Small Claims Court of Kenya at Nakuru (Hon. Dominic Macharia) arising from Judgment dated the 9th day of June 2025 in SCCOMM EO33 of 2025, Pauline Nyakinyua Muraya vs Michael Kinyua Githaiga).*** **JUDGMENT** **Grounds of Appeal and Reliefs sought** **1.** This Appeal challenges the lower court's Judgment by which the Appellant was ordered to pay the Respondent Kshs. 908,567.35 being the balance of a debt owed to the latter, together with the costs of the claim and interest. Aggrieved by the decision, the Appellant lodged this appeal *vide* a Memorandum of Appeal dated 17/6/2025 predicated upon these grounds;- 1. **THAT the learned Adjudicator erred in law by misapprehending Section 23 (5) and (6) of the Small Claims Court Act.** 2. **THAT the learned Adjudicator erred in law by formulating exemptions to the requirements of Section 23 (5) and (6) of the Small Claims Court Act, which exemptions are not founded on any law.** 3. **THAT the learned Adjudicator erred in law by shifting the burden of proof on the Appellant to prove his defence rather than determining whether the Respondent had proved her case on a balance of probabilities.** 4. **THAT the learned Adjudicator erred in law by finding fraud on the part of the Appellant yet the Respondent had neither specifically pleaded nor proved fraud on the part of the Appellant.** 5. **THAT the learned Adjudicator erred in law by misconstruing the requirements needed to prove duress as a factor vitiating the agreement dated 11.01.2023.** 6. **THAT the learned Adjudicator erred in law by failing to consider and evaluate the evidence and arrive at a correct determination that is supported by law and evidence.** **3.** The Appellant seeks reliefs as hereunder; 1. **THAT the appeal be allowed.** 2. **THAT the judgment and decree of the court be set aside.** 3. **THAT the Respondent's claim be struck out/dismissed/deemed to be abandoned.** 4. **THAT the Respondent to pay costs for the appeal and claim.** **Background to the Appeal.** **4.** The Respondent filed a Statement of Claim dated 15/1/2025 in the lower court praying for refund of a sum of Kshs. 908,567.35 the Appellant owed her. The Respondent averred *inter alia* that being illiterate and based in Italy and thus unable to operate her bank account No. 1106887654 she held with the Kenya Commercial Bank (Nakuru), she invited the Appellant to be a co-signatory to the account. She knew and trusted the Appellant as the spouse of her niece. The Appellant's mandate was only to check the account balances upon deposits into the account and further confirm any interest earned on the deposits. He was not authorized to make withdrawals from the account without the Respondent's permission. **5.** In breach of the trust bestowed upon him, the Appellant allegedly made various withdrawals from the account without the Respondent's consent. On her visit to Kenya in December 2022, the Respondent states that she discovered that unauthorized withdrawals totaling Kshs. 1,040,000/= had been made from the subject account. She complained to the police leading to arrest of the Appellant. The Appellant is said to have then admitted the debt in the sum of Kshs. 1,008,567.35 which he pleaded to be allowed to refund *in lieu* of prosecution. Despite executing an agreement in this regard, the Appellant failed to make good the debt, hence the claim before the lower court. **6.** The Appellant filed a response dated 25/2/2025 traversing all the material particulars of the claim. He contends *inter alia* that he had the full mandate to operate the account and make withdrawals therefrom with the Respondent's consent for the benefit of her relatives. The Appellant further denied entering into any lawful agreement with the Respondent to repay the money in question after his arrest. He therefore urged the court to dismiss the claim with costs. **8.** The claim was set down for hearing on 20/5/2025. The Respondent testified maintaining her averments in the Statement of Claim. She also tendered a bundle of documents that include the purported refund agreement dated 11/1/2023 and copies of bank records showing the withdrawals complained of, in support of the claim. The court was told that the Appellant was never allowed to withdraw any funds to give to anyone. When she came back to Kenya and found out about the irregular withdrawals, she rang up the Appellant who failed to receive her calls. The Appellant is said to have repaid only Kshs. 100,000/= under the agreement of 11/1/2023. According to the Respondent, the Appellant voluntarily appended his signature to the agreement. Her intention was to get her money, not to detain the Appellant. **9.** The Appellant also offered evidence and reiterated the averments in his statement of claim. While confirming that he executed the agreement dated 11/1/2023 alluded to earlier and paid the sum of Kshs. 100,000/= under the agreement, the Appellant complained that he feared being incarcerated at the instigation of the Respondent. He had spent a night in police custody, only getting released the following day at noon on cash bail. The Police later informed the Appellant that he would after all not be prosecuted over the debt. **10.** The Appellant claimed that the Respondent gave her consent to make the questioned withdrawals from the account *vide “*WhatsApp" messaging service. He could not produce the evidence saying he lost his phone in use then together with the relevant records. **11.** The parties filed written submissions which were considered by the lower court together with the oral evidence. In his judgment dated 9/6/2025, the learned trial magistrate first rejected an objection raised in the Appellant's submissions that the Statement of Claim was invalid on account of it not being signed by the Respondent as the Claimant. The omission was contended to run afoul of **Section 23 of the Small Claims Court Act.** In dismissing the preliminary point, the court noted that the objection had not been raised in the Respondent's reply to the Claim or during hearing thereof. Further opining that the Respondent's duly signed Affidavit verifying the Claim, Witness Statement together with the Respondent's evidence on oath at trial are sufficient “authorship and responsibility for the pleadings” as per cited case law, the court found no merit in the Appellant's objection. **12.** With respect to a framed issue as to whether the Appellant had full or limited mandate to operate the Respondent's account in question, the trial court noted that the bank's records in this regard were not exhibited for the court's perusal. The learned trial Magistrate nevertheless observed thus: **"... it is not disputed that both parties visited the bank together and that the Respondent was registered as a signatory with transaction authority. However, the absence of any documented restriction does not automatically absolve the Respondent from the requirement to act in good faith and only within the bounds of actual authority".** **13.** Based on the purported admission of the debt by virtue of the parties' agreement of 11/1/2023, and there being no evidence by the Appellant corroborating his claim that he was instructed to make withdrawals from the account for the benefit of the Respondent's relatives, the court found that the withdrawals were unlawful and/or fraudulent. **14.** The trial court also considered the Appellant's contention that he signed the agreement dated 11/1/2023 under duress because of the involvement of the Police. The court drew guidance from the judicial decision in **Paola Da Fano vs Salim Abdalla Bakshwein [2013] eKLR** among other cited decisions and found the agreement to be "valid and enforceable". The lower court reasoned that the Appellant needed to show that “events leading to execution of the agreement had been orchestrated to corner him to sign the agreement.” It was opined that the Appellant's arrest by the Police was a normal process in criminal prosecutions and there was no proof that there was "violence, coercion or force" that compelled the Appellant to sign the agreement admitting the debt. **15.** Furthermore, the trial court faulted the Appellant for failing to produce any complaint he made to the Independent Police Oversight Authority (IPOA) or the Director of Public Prosecutions, or any evidence of disciplinary action against the culpable police officers. **16.** The learned Trial Magistrate was in the end satisfied that the Respondent proved her claim on a balance of probability and entered Judgment in her favour. **The Appellant's Submissions on the Appeal.** 1. Learned Counsel for the Appellant rightly submit that this court’s jurisdiction is restricted to any point(s) of law only by dint of **Section 38 (1) of the Small Claims Court A**ct. In **Kariuki vs Makonge Civil Appeal E169/2024 [2025] KEHC 14231 (KLR) 13 October 2025 (Judgment)** cited by Counsel the court’s jurisdiction on a point or points of law in such appeals is explained thus**:** "**point of law" might be pure points of law or mixed points of law. An appeal on points of law is like a second appeal to the Court of Appeal where it must be shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse".** 1. The court is impressed upon to find that exercise of judicial discretion is a point of law as observed in **Wanjugu vs Wainaina Civil Appeal E067 of 2024 [2025] KEHC (KLR) (9 June 2025) (Judgment)** the court is referred to**.** Whether or not the trial court properly evaluated evidence and arrived at its correct determination is also a point or issue of law, according to the Appellant. 2. The Appellant raised objection in the lower court that contrary to **Section 23 of the Small Claims Court Act,** the Respondent did not sign her Statement of Claim, and that the same is only signed by her Advocate. 3. **Section 23 (5) and (6) of the Act** is reproduced below: **"(5) Any person in whose name a claim is lodged without his signature or mark authenticating the claim shall be required to sign or authenticate the Statement of Claim before the commencement of the hearing and determination of the claim.** **(6) A person who fails to comply with subsection (5) shall have his or her name struck out of the proceedings and whereupon his or her claim shall be deemed to be abandoned".** 1. The Appellant’s Advocates bring to the court’s attention that the same Trial Magistrate affirmed this legal position in his decision in **Nakuru SCCC No. E379/2020** (**Stonehouse Ministry International Trust Registered Trustees and Another vs Francis Karanja).** This case is said to have been brought to the court's attention but the learned Trial Magistrate did not comment thereon. 2. According to the Appellant, a Verifying Affidavit or oral evidence does not cure the defect in the Statement of Claim and that the law does not require a Verifying Affidavit in Small Claims. 3. The Appellant further rightly state that rules of procedure are important as procedure is the handmaiden of justice and does not befit the attribute of mere technicality, [(**See the Supreme Court’s decision in Mwicigi & 14 Others vs IEBC & 5 Others (2016) KSC 2 (KLR) alluded to by the Appellant.]** 4. The Appellant therefore contends that the court should in the circumstances strike out the Respondent's name from the Claim and deem the Claim as abandoned. 5. It is further argued that the trial court shifted the burden of proof to the Appellantcontrary to the provisions of **Sections 107 & 109 of Evidence Act** that place the burden on the Claimant. 6. Despite non-production of bank records showing the subject account’s mandate, the trial court is faulted for finding that the withdrawals in issue were fraudulent. It is the word of the Respondent against that of the Appellant and the balance of probability was not achieved in the opinion of the Appellant. 7. It is further contended that the bank did not flag any withdrawals made against the account mandate. The Trial Magistrate is further said to have erred by determining fraud against the Appellant yet fraud was not pleaded. 8. The Appellant attacks the parties’ agreement dated 11/1/2023 for purporting to show admission of the debt in issue when the document was signed under duress as the Appellant was in police custody, (see the decision of *Mativo J* (as he then was) in **Hellen Wangari Wangeci vs Carumera Muthoni Gathua (2015) KEHC 1758 (KLR)** referred to by Counsel**.** In this decision, the court observed; **“Duress is unlawful pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform. Duress also exists where a person is coerced by the wrongful conduct or threat of another to enter into a contract under circumstances that the individual of his/her volition. If duress is used to get someone to sign a document, then the court may find such a document to be null and void.”** 1. The court opined that signing of a relevant document at the Police Station purporting to evidence an admission of a debt may not safely be assumed to have been freely done. **Respondent’s Submissions.** 1. On their part, the Respondent’s Advocates submit that the Appellant failed to comply with the court orders of 21/1/2026 granting conditional stay of execution pending Appeal. He never paid out Kshs. ½ of the decretal sum and/or deposit the other ½ into court contrary to the court’s directions, argues the Respondent. According to the Appellant the non-compliance rendered the Appeal automatically dismissed as directed. 2. Counsel continue to submit that the Appeal is also defective for the reason that it is not based on point(s) of law contrary to **Section 38(1) of the Small Claims Act.** I am referred to the judicial determination in **Peter Gichuki Kingara vs IEBC & 2 Others (2014) eKLR**, where it was held that exercise of judicial discretion is a point of law and so is the question of whether evidence was properly analyzed and correct determination arrived at. 3. On the merits, the court is told that the Respondent proved her case on a balance of probability. Reliance is placed on **Section 32(2) of the Small Claims Act** that provides; **“….the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the court considers credible or trustworthy….”** 1. By dint of **Section 107 of the Evidence Act** , the burden shifted to the Appellant to disprove the claim of unlawful withdrawals, argues the Respondent. 2. Regarding the agreement of 11/1/2023 the Respondent insists that the same amounts to admission of the debt as it indicates the Appellant’s pledge to; **“pay Kshs. 1,008,567.35 being money owed to Pauline Nyakinyua Muraya. Down payment of Kshs. 100,000/= done balance to be paid in 24 months.”** 1. The Respondent’s Advocates restate the legal position that the court cannot re-write a contract for parties, [**( see Hussa Mandin Gulam Hussein Pothiwala Administrator & Trustee & Executor of the Estate of Gulam Hussein Ibrahim Pothiwalla vs. Kidogobasi Housing Co-operative Society Limited & 31 Others (2009) eKLR) referred to.]** 2. It is further pointed out that the Appellant did not challenge the agreement by legal action if he thought it was tainted by duress as noted by the Trial Magistrate. 3. Concerning the Appellant’s objection as to non-compliance with **Section 23 of the Small Claims Court Act**, the Respondent opines that a Statement of Claim can be signed or authenticated by the Claimant or a representative. The court is told that the Claim is signed by the Respondent’s Advocates. **Guiding Principles** 1. This being a first appeal the court is generally required to reconsider the material placed before the lower court, evaluate it and draw my own conclusions regarding both matters of fact and law{ (see **Selle & Another Vs Associated Motor Boat Company Ltd & Others [1968] EA 123** }. The Court of Appeal for East Africa in **Peters vs Sunday Post Limited [1958] EA 424** underscored the same principle delivering itself thus: ***“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;*** 1. ***In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and*** 2. ***It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”*** 3. Being an appeal from a decision of the Small Claims Court, however, this court is only required to consider arising matters of law only, (see **section 38 (1) of the Small Claims Court Act**). I shall consider the Grounds of Appeal together. 4. The following issue arise for determination in this Appeal; **(a) Whether the Appeal stands dismissed for non-compliance with the conditions stated in the court's Ruling of 21/1/2026.** **(b) Whether the trial court ought to have struck out the Respondent's claim for her failure to personally sign it.** **(c) Whether the Respondent proved her claim in the lower court on a balance of probability.** **(d) The orders commending themselves to the court in this Appeal.** 1. I have perused the orders issued on 21/1/2026 regarding the Appellant's Application for stay of execution pending hearing and determination of the Appeal. The Appellant was ordered to pay to the Respondent half of the decretal and deposit the other half into court within a stated period, failure to which the Respondent would be allowed to levy execution. It was not directed that default would render the appeal dismissed. The appeal is therefore properly before the court. 2. **Section 23 (1) of the Small Claims Court Act provides;** "**Every claim filed with the Court shall commence with filing of a statement of claim in the prescribed form signed or authenticated by the claimant or authorized representative."** 1. I have perused the Respondent's Statement of Claim dated 15/1/2025 filed in the lower court. Although the Respondent did not sign it personally, the same is authenticated by signature and stamp of her Legal Counsel. The provision of **Section 23 (1) of the Small Claims Court** *supra* was therefore complied with. The Statement of Claim was validly before the lower court. 2. On the merits of the Appeal, it is not in dispute that the Appellant was made a signatory to the account in issue and that the amount in question was withdrawn by the Appellant from the account. It appears to be common ground as well that the mandate to operate the account was agreed between the parties orally. 3. I have perused the agreement dated 11/1/2023 claimed to evidence the Appellant's admission of the debt. The Appellant appears to commit to pay a sum of **Kshs. 1,008,567.35** he purportedly owed the Respondent. 4. It is not in dispute that the agreement was executed while the Appellant was in police custody and that he was thereafter released. I concur with the Appellant's submission that in the circumstances he did not freely sign the agreement. Undue influence of the police was brought to bear on the Appellant to make the commitment. This was improper as this appears to be a purely civil matter. The court accordingly finds that the Appellant did not freely admit the debt within the meaning of the law. 5. Is the Appellant otherwise liable? While the Respondent states that she did not authorize the Appellant to make withdrawals from the account, the latter claims that he was so authorized by text messages and that he gave the sums withdrawn to the Respondent's relatives as directed. As the Appellant concedes having made withdrawals from the account, I concur with the Respondent that the burden shifted to show how the funds were expended as provided for in **Section 107 of the Evidence Act**. A satisfactory explanation has not been given and neither did the Appellant exhibit the text messages allowing him to make the withdrawals. The Appellant has not also rebutted the Respondent's evidence that he failed to receive her calls when she returned to Kenya and discovered the withdrawals. This further shows that his defence is not credible. 6. I find on the evidence and in the circumstances that the Claim was proved on a balance of probability. The Appeal is dismissed with costs to the Respondent. **J. M. NANG’EA, JUDGE.** **Judgment dated, signed and delivered virtually this 28th day of July, 2026.** **In the presence of:** Ms Mwashi Advocate for Mr. Githiru Advocate for the Respondent. Appellant’s Advocate, Absent. Court Assistant (Jeniffer). **J. M. NANG’EA, JUDGE.**