[2023] KEHC 23653 (KLR)

Ntaama v Kilenchune Kuendelea Women Group (Suing through its officials Harriet Nagea – Chairperson, Mary Nyoroka – Secretary & Mary Kagendo – Treasurer) (Civil Appeal E009 of 2021) [2023] KEHC 23653 (KLR) (17 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23653 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E009 of 2021

LW Gitari, J

October 17, 2023

Between

Ann Ntaama

Appellant

and

Kilenchune Kuendelea Women Group (Suing through its officials Harriet Nagea – Chairperson, Mary Nyoroka – Secretary & Mary Kagendo – Treasurer)

Respondent

(An Appeal against the Judgment and decree in Meru CMCC No. 152 of 2019 delivered on 14th December, 2020)

Judgment

1. This is an appeal against the judgment and decree in Meru CMCC No. 152 of 2019 delivered on 14th December, 2020. The Appellant raises the following grounds of appeal:a.That the learned magistrate erred in law and fact by failing to find that the Respondent did not prove or tender any evidence of loan advancement to the Respondent and to prove that New Hope and Vision Investment was its agent as there was no evidence to prove its activities of those of the Respondent.b.That the learned magistrate erred in law and fact in that she relied on the alleged loan repayment agreement when the same was not authentic as it was not signed by the Appellant as she always been thumb printing documents.c.That the learned trial magistrate erred in law and in fact in that she failed to find that there was no evidence of the actual loan agreement between the Appellant and the Respondent hence the Respondent’s case was not proved before court.d.That the learned trial magistrate erred in law and fact by failing to find that the Respondent attached and sold the Appellant’s properties and did not account for the same and therefore the Respondent’s suit to recover further money from the Appellant amounted to unjust enrichment.e.That the learned trial magistrate further erred in law and fact in that she disregarded the Appellant’s evidence which was clear that the Appellant did not owe the Respondent the alleged debt.f.That the learned trial magistrate’s judgment is against the weight of evidence and the same is bad in law.

2. The Appellant thus prayed that:a.The appeal herein be allowed.b.The judgment of the lower court dated 14/12/2020 be set aside and this Honourable Court do find that the Respondent did not prove its case against the Appellant.c.The judgment delivered on 14/12/2020 by the lower court and resultant decree be vacated and the Honourable Court do dismiss the Respondent’s case.d.The Respondent do pay the costs of this appeal.

3. The respondent opposed the appeal and prayed this court to find that based on the evidence before the trial court and their submissions in this appeal, the court to find that the respondent proved its case on a balance of probabilities and dismiss the appeal.

Brief Facts: 4. The brief facts of the case are that the respondent is a resource mobilization and Investment Self-help Group aimed at creating wealth investment projects and transforming the lives through economic empowerment schemes for its members. The respondent is involved in various investment activities which include table banking scheme among other activities. The respondent in its table banking activities engaged an Association by name New Hope and Vision to manage the activities.

5. The appellant is a member of the respondent who has participated and enjoyed the fruits of the Investment Scheme and activities offered by the respondent. Under the table banking scheme, members pool their financial resources through monetary contributions on monthly basis during the members meeting which is recorded in an account which is maintained by the New Hope and Vision. The money so contributed by members is loaned to the members who are interested at 10% interest on the principal amount which is compounded monthly and until the amount is paid in full.

6. The appellant being an eligible member borrowed a loan of Kshs.24,000/- from the respondent’s table banking scheme which she was supposed to repay as per the Respondent’s Rules and Regulations. The respondent defaulted in repayment and the loan accumulated to Ksh.89,700 as at 30/9/2018. The appellant entered into a loan repayment agreement in which she accepted that she owed the respondent Ksh.89,700/- and further that she was unable to raise Ksh.20,000/-.

7. The respondent wrote to the appellant demanding that she repays Ksh.89,700/-. The appellant defaulted in repaying the loan and was subsequently sued to recover the debt. The appellant had advanced a defence that she did not owe the respondent any money as alleged and put the plaintiff to strict proof thereof.

8. The learned trial magistrate heard the dispute in full and in a Judgment delivered on 14/12/2020 allowed the respondent’s case with costs.

9. The appeal was canvassed by way of written submissions.

The Appellant’s Submissions 10. It is the Appellant’s submission that nowhere in the “copy of the minutes for table banking meeting” or the “letter from the office of the chief Nkomo Location” that the Respondent filed before the lower court did they indicate that the Appellant herein was a debtor of the Respondent. Further, that the said copy of the minutes for table banking was dated 05/04/2019 whereas the chairperson, secretary and treasurer of the group all signed and dated 03/04/2019. According to the Appellant, the handwriting on the said dates is similar implying that the same had been done by individual.

11. In addition, the Appellant contends that the Respondent alleges that it has by-laws that provide that New Hope and Vision was the organization that gave out loans to its members, there was however no evidence to prove the said allegation. That the copy of loan statement filed in the Respondent’s list of documents provides scanty information and is not supported by any loan agreement to that effect. Further, that in both loan repayment agreements, the names of the officer in charge or the witness are not indicated. That only name of the Appellant is indicated and the Appellant terms this a too convenient for the Respondent’s case.

12. The Appellant contends that the two loan agreements relied by the Respondent and dated 18/09/2018 and 31/10/2018 are both forgeries since they indicate that the Appellant signed the said agreement yet the Appellant appends her signature on documents through thumb print.

13. The Appellant further contends that the Respondent filed a copy of inventory from Clear Traders dated 17th August, 2020 but the Respondent prayed for the court to disregard the copy of the said inventory which the Appellant deems to be a clear sign that the Respondent was playing cat and mouse games before the trial court while at the same time confusing and conflating issues in order to help their case.

14. Finally, it is the Appellant’s submission that the Respondents failed to discharge their burden of proof and as such, the findings of fact and legal reasoning in the impugned judgment was substantially bad in law. The Appellant thus prayed for the vacation and setting aside of the said judgment and the dismissal of the Respondent’s case.

The Respondent’s Submissions 15. On its part, the Respondent introduced New Hope and Vision as a resource mobilization and investment self-help group that is involved in various investment activities which include but not limited to Table Banking Scheme. The Respondent’s claim against the Appellant at the trial court was that the Appellant is a member of the Respondent and that under the Table Banking scheme, members pool their financial resources together during a table banking meeting that is conducted once every month. That the Appellant borrowed a short term loan of Kshs. 24,000/= on 10th April, 2017 but defaulted and/or refused to repay the said loan as per the Respondent’s Rules and Regulations. That due to default by the Appellant, the loan accumulated to Kshs as at 30/09/2018 when the Respondent suspended charging interest and penalties on the amount that was then in arrears.

16. The Respondent further contends that on 18/09/2018, the Appellant entered into a loan repayment agreement with New Hope and Vision whereby she acknowledges that she owed a debt worth Kshs. 89,700/= and committed herself to repaying Kshs. 20,000/= by the end of October 2018. That on 31/10/2018, the Appellant entered into another loan payment agreement with New Hope and Vision whereby she acknowledged that she was unable to raise the Kshs. 20,000/= as she had promised but indicated that she could only manage to raise KShs. 2,000/=. Subsequently on 11/12/2018, the Respondent through New Hope and Vision wrote to the Appellant demanding her to repay back the Kshs. 89,700/=. The Respondent contends that despite notices and requests by the Respondent, the Appellant has defaulted, refused, and/or neglected to repay back the loan. It was thus the Respondent’s submission there existed a relationship between the Appellant and the Respondent. That the Appellant borrowed a loan of Kshs. 24,000/= on 10/04/2017 but defaulted in paying it causing the loan amount to accrue to Kshs. 89,700/= as at 30/09/2018.

17. On whether the Respondent attached and sold the Appellant’s property to recover the loan arrears, it was the Respondent’s submission that the water tank and goat that were recovered from the Appellant were in respect to a different scheme that did not relate to the facts of this case. The Respondent thus invited this Court to find that the trial court rightly held that the Appellant owed the sum of Kshs. 89,700/= and proceed to uphold the same by dismissing this appeal.

Issues for Determination 18. I have considered the grounds of appeal, the record of appeal, and the submissions by the parties. The main issues that arise for determination by this Court are:a.Whether the Appellant is indebted to the Respondent in the sum of 89,700/=.b.Whether the Respondent proved its case against the Appellant on a balance of probabilities.

Analysis 19. This is a first appeal. The law is well settled that the first appellate court has a duty to re-evaluate the evidence adduced before the trial court, analyse it, and come up with its own independent finding. The court is however supposed to make allowance for the fact that the trial court had the benefit of seeing and hearing the witnesses to assess their demeanour. In Kiilu & Another vs. Republic [2005] 1KLR 174 the Court of Appeal stated that:“1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”Thus, a first appellate court is mandated to re-evaluate the evidence which was tendered before the trial court as come up with its own independent finding. The Court of Appeal in the case of Abok James Odera trading as A.J. Odera & Associates –v- John Patrick Machira t/a Machira & Company Advocates (2013) eKLR had this say with regard to the duty of the first Appellate Court.“This being a 1st appeal, we are reminded of our primary role as a 1st appellate court, namely;to re-evaluate, re-assess and re-analyze the extracts on the record and then determined whether the conclusions reached by the learned trial Judge are to stand or not aid give reasons either way.”See also Gitobu Imanyara & 2 Others –v- Attorney General (2016) eKLR.

20. I shall proceed to re-evaluate the evidence tendered by the respective parties before the trial magistrate.

21. PW1 was Harriet Nagea. She adopted her statement as her evidence in chief and produced the documents contained in the list documents dated 06/062019 as exhibits. It was her evidence that New Hope and Vision is a group with by-laws. That the group gives loans to its members and charge interests on loan given. That the Appellant herein took a loan which was accrued until Kshs. 89,700/=.

22. PW2 was Doninah Kawira, the officer in charge in Kilenchune Women Group through New Open Vision Investment Limited. She adopted her statement as her evidence in chief. It was her testimony that the tank and goat that were reposed was not part of the table banking money but was for a different project. On cross examination, she stated that the Appellant was loaned money but those minutes were not included in the Plaintiff’s list of documents. That they employed auctioneers to recover tanks and goats money but not table baking money.

23. When called upon to give her defence, the Appellant testified as DW1. She also adopted her statement as her evidence in chief. She confirmed that she was a member of Kilenchune Kuendelea Women Group for over 20 years but she denied getting a loan of Kshs. 24,000/= from the group. It was her testimony that the manager of the group wrote a letter and told her to sign it. That she does not know how to read and that Kinoti wrote the name and signed the letter. According to her she paid the Respondent Kshs. 20,000/= to acquire tank and goats. She however did not produce any receipts to substantiate her claim. According to her, auctioneers went and took the tank goats and her money.

24. DW2 was Rael Mutiri. She adopted her statement as her examination in chief. It was her testimony that the Appellant belonged to the Kilenchune Group and stated that she did not know the members of this group or how it worked. According to her, she did not know if the Appellant had taken group loans. She however knew that auctioneers went and took the Appellant’s tank and several goats. She did not know who sent the auctioneers or whether they followed the law.

25. DW3 was Mwamkwa. He adopted her statement as her examination in chief. It was his testimony that he was a member of the Respondent’s Group but is no longer a member of the group. That he does not know how the group operates presently but also did not know if the Appellant took a loan. He stated that he saw the Appellant’s tank and goat being taken and was told that the Appellant owed the group money.

Analysis and Determination: 26. It is trite law that he who alleges must proof. The law imposes a legal as well as evidential burden. Sections 107,108 and 109 of the Evidence provides as follows:“107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

27. The burden of proof in a suit or proceedings, lies on that person who would fail if no evidence at all were given on either side (Section 107) supra. It is the legal burden of proof which is the test applied to determine whether a party’s case is merited or not. Thus, the court’s decision will mainly depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him. The principle is that whoever desires any court to give Judgment as to any legal right or liability dependent on the existent of a fact which he asserts, must prove that those facts exists. In the Halsbury’s Law of England 4th Edition, Vol. 17 at paragraph 13, 14 and 16 which the appellant has cited, it is stated that-“The legal burden is the burden of proof which remains constant throughout a trial, it is the burden of establishing facts and contentious which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action, thus a claimant must satisfy the court or tribunal the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation, is an essential of his case…… the legal burden is discharged by way of evidence with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes the evidential burden.”

28. The standard of proof in civil cases is that of balance of probabilities. The plaintiff bears the burden of proving their case by a preponderance of the evidence which the plaintiff merely to show that the fact in dispute is more likely than not.

29. The appellant has claimed that the respondent did not avail minutes for the table banking meeting or the letter from the Chief.

30. I however note that the respondent relied on the loan statement on the appellant’s account Exhibit -7 and the loan payment agreement, exhibit 6.

31. The appellant denied that she signed the loan agreement and alleged that it was forged. The appellant however admitted that he never reported the alleged forgery to the police nor did she avail any evidence to show that he thumbprints on documents.

32. I find that the allegation of forgery is false which did not rebut the evidence by the respondent that she is the one who signed it. I find that the crux of the appellant’s loan payment agreement of 18/9/2018 is clear and obvious that the appellant owes the debt to the respondent. The appellant failed to repay the debt despite demand. The loan repayment agreement amounted to an admission. Section 17 of the Evidence Act provides as follows:-“17. An admission is a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant fact, and which is made by any of the persons and in the circumstances hereinafter mentioned.”

33. The trial magistrate found that the respondent was entitled to Ksh.89, 700/- which the defendant admitted she owed the plaintiff. I find that in view of the express words in the loan payment agreement the trial magistrate cannot be faulted. The defence of the appellant was a mere denial. The respondent adduced substantial evidence in the documents produced as exhibit 1-7 which proved its case.

34. From the evidence before the trial court, it is undisputed that there existed a relationship between the Appellant and the Respondent where the Appellant is a member of the Respondent. The Appellant herself confirmed this much. PW1 and PW2 confirmed that one of the activities undertaken by the Respondent is the Table Banking Scheme which was being held once every month. That the Table Banking Scheme involved members pooling funds together by making contributions. That the funds collected would then be loaned to members and repaid with a compounding interest of 10% per month until the amount is paid in full. That the Appellant benefited from the activities of the Table Banking Scheme and specifically, borrowed a loan of Kshs. 24,000/= on 10th April, 2017. The Appellant subsequently defaulted and the loaned amount accrued to Kshs. 89,700/= as at 30/09/2018.

35. In support of its case against the Appellant, the Respondent adduced several documents in evidence. I have carefully perused the said documents. The same provide substantial evidence in support of the Respondent’s claim against the Appellant. The Respondent has clearly explained that the tank and goat that were auctioned were for a different scheme. DW2 and DW3 did not give much insight into the matter as their only evidence is that they saw the Appellant’s tank and goat being taken away. Their evidence did not add any value as it was contradictory on a material particulars, this is a fact which cast doubt on their credibility. On a balance of probabilities, I am of the considered view that the Respondent proved its case against the Appellant. The Respondent did prove that it granted the Appellant a loan and that the Appellant failed to repay the loan. That the trial court was therefore not wrong to find that the Respondent was entitled to the Kshs. 89,700/= that the Appellant owed it.

Conclusion 36. For the reasons stated, I find that the appeal lacks merits. The decision by the learned trial magistrate is sound.

37. I therefore order that:1. The appeal is dismissed.2. Costs to the respondent for this appeal and in the lower court.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 17TH DAY OF OCTOBER 2023. L.W. GITARIJUDGE