https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9629

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CIVIL APPEAL CASE NO E073 OF 2025** **MOSES RICHARD OWUOR....................................................APPELANT** **-VERSUS-** **OREKA GODWEINCE OMOLO.........................................RESPONDENT** **(Being an appeal against the Judgement and Decree of the Honourable Edward Tsimonjero, SRM in Ukwala MCCC E031 OF 2024 delivered on 18th September, 2025)** **BETWEEN** **MOSES RICHARD OWUOR …………..……………..…………PLAINTIFF** **-VERSUS-** **OREKA GODWEINCE OMOLO …………………………….. DEFENDANT** **JUDGMENT** 1. The appeal herein arises from the Judgment/decree of Honourable Edward Tsimonjero, (SRM) in Ukwala MCCC E031 OF 2024 wherein he dismissed the Appellant’s suit and ordered each party to bear their own costs. 2. The Appellant was aggrieved by the entire Judgment and decree and thus duly filed a Memorandum of Appeal dated 23rd September 2025, wherein he raised the following grounds of appeal namely;- 3. That the learned trial Magistrate erred in law and in fact by finding that Kshs. 126,500 allegedly paid by the Respondent in installment was way past the agreed ‘’I owe you agreement’’ dated 4/07/2023 and whose due date was 4th March, 2024 and way far after filing Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo on 8th April, 2024 was in satisfaction of Kshs. 140,000, excluding the balance of Kshs. 14,000 and thereby the Appellant waived his rights to claim under ‘’I Owe You Agreement’’ in exclusion of the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and ‘’I owe you agreement’’ dated 4/07/2023 thereby arriving at wrong findings, analysis, conclusion, judgment and casualization of a judicial process to the detriment of the Appellant. 4. That the learned trial Magistrate erred in law and in fact by finding that Kshs. 126,500 allegedly paid by the Respondent in installment was in satisfaction of Kshs. 140,000, yet the Respondent’s M-Pesa Evidence did not directly prove that the alleged payments were Kshs. 126,500 was by the Respondent but by different parties not party to the dispute , namely Daniel Oloo , Fredrick Owuor, Emmaculate Ochieng , Vintage Distributors, Fredrick Otieno Owour , Rodgers Ahura , Joyce Ogutu, Dalton Otieno , Meshack Onyango , Stephen Onyango and Manna Lifestyle Ugunja) and thereby necessitating the Appellant’s to waive his rights to claim under ‘’I owe you agreement’’ ,the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023. 5. That the learned trial Magistrate erred in law and in fact by computing Kshs. 126,500 as having being paid by 4th March, 2024, which computation was wrong both in fact and in law contrary to the Appellant’s pleadings and evidence that as of 8th April, 2024, the Respondent had not paid any single cent out of the I owe you agreement dated 4/07/2023. 6. That the learned trial Magistrate erred in law and in fact by proceeding to find that the amount of money due and owing to the Appellant was Kshs. 14,000 and in fact that the Respondent had overpaid an excess of Kshs. 4,500 which proceeding and findings were contradictory findings and conclusion in one judgment to the detriment of the Appellant. 7. That the learned trial Magistrate erred in law and in fact by depriving the Appellant constitutional right to institute a suit on the ground that the Appellant was to demand Kshs.14, 000 and not to insist on a suit upon receipt of Kshs. 70,000, yet the suit was filed on 8th April, 2024 and the Kshs. 70,000 paid on or about 13th May, 2024 more than one month after the suit was filed. This was a clear misapprehension of the claim, the fact and issues of the case in dispute thereby leading to contradictory findings and conclusion in one judgment to the detriment of the Appellant. 8. That the learned trial Magistrate erred in law and in fact by ignoring the law and facts on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof were drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent therefrom were done at the Respondent’s own convenient into a debtor-creditor relationship to the detriment of the Appellant, thereby necessitating fling of Ukwala Case Number: MCCC/E031/2024, against the Respondent in his individual capacity as opposed to one Mary Otieno Obai for the purchase of land number Uholo/Ugunja/3535 (0.282 Ha). 9. That the learned trial Magistrate erred in law and in fact by ignoring and delinking Appellant’s prayer (a) from the rest of prayers (b to e) on a dispute and series of pleadings and evidence on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent to the detriment of the Appellant. 10. That the learned trial Magistrate erred in law and in fact by misconstruing the Appellant’s case as against the Respondent and not one Mary Otieno Obai in the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, ‘’I owe you’’ agreement dated 4/07/2023 and unilateral variation of payments modes thereof drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent to the detriment of the Appellant. The schemes and methods to frustrate the appellant were designed and executed by the Respondent as opposed to one Mary Otieno Obai relative of the Respondent, thus the suit against the Respondent. 11. That the learned trial Magistrate erred in law and in fact by misconstruing the Appellant’s case as against the Respondent in the context of masquerading as an advocate and punishment thereof viz-a-viz Camilita Akinyi Odebero v Wilfred Barasa Opondo [2017] KEHC 3903 (KLR) in role the Respondent payed in drafting the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent to the detriment of the Appellant. The schemes and methods in the whole dispute were designed, executed and attributed to the Respondent. 12. That the learned trial Magistrate erred in law and in fact by applying both the ratio decidendi and obiter dicta in High Court of Kenya at Nairobi Civil Suit No. 287 of 2013, Taj Mall Limited-V-Hellen Njambi Mbugua, to a claim of interests only @ 29 & per annum on a completed sale agreement, which was not the case in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo thereby arriving at wrong judicial findings, reasoning, analysis, conclusions and judgement to the detriment of the Appellant. 13. That the learned magistrate erred in law and in fact in disregarding evidence that the relationship between the Appellant and the Respondent was that of client-advocate inside M/S Odhiambo Onyango Advocates law firm when in fact the Appellant saw the Respondent first hand evidence and experience in drawing the agreements as an advocate, signed differently and witnessed and all circumstantial evidence attest to that including receipt and refund of part of purchase price culminating to I owe you agreement dated 4/07/2023. 14. That the learned magistrate erred in law and in fact in disregarding stare decisis in the dispute and when the Respondent’s drew and signed Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023, the debtor-creditor relationship and receipt of the purchase price. 15. That the learned magistrate erred in law and in fact in identifying and determining the issues in dispute and claim between the parties as discerned from the pleadings, evidence, hearing and submissions on record. 16. That the learned trial Magistrate erred in law and in fact by applying both the law and principles applicable in a sale & purchase of a maisionnette agreement to charge interests @ 29 & per annum on a completed sale agreement as opposed to creditor-debtor law principles on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 arising from a sale and cancellation of land transaction agreement that was initiated, drawn , acknowledged , signed , cancelled and turned into a debtor-creditor relationship at the sole behest of the Respondent as the advocate for both the Appellant and the Respondent-his vendor relative. 17. That the learned trial Magistrate erred in law and in fact by applying in error the legal principles of waiver that were never pleaded and proved by the Respondent defense into a debtor-creditor relationship under unfulfilled Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 that was turned into debtor-creditor relationship by the Respondent to the detriment of the Appellant. 18. That the learned trial Magistrate erred in law and in fact by applying both the ratio decidendi and obiter dicta in High Court of Kenya at Nairobi Civil Suit No. 287 of 2013, **Taj Mall Limited-V-Hellen Njambi Mbugua** into the law, facts and issues in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo thereby arriving at wrong judicial findings, reasoning, analysis, conclusions and judgement to the detriment of the Appellant. 19. That the learned trial Magistrate erred in law and in fact by applying both the ratio decidendi and obiter dicta in a distinguishable case of High Court of Kenya at Nairobi Civil Suit No. 287 of 2013, **Taj Mall Limited-V-Hellen Njambi Mbugua**, a case on charging interests only into the law, facts and issues in Ukwala Case Number: MCCC/E031/2024, **Moses Richard Owuor-Versus-Oreka Godweince Omolo** a case for claim of Kshs. 122,000 plus interests, lost opportunities, compensation, general & punitive damages, punishment and fine thereby arriving at wrong judicial findings, reasoning, analysis, conclusions and judgement to the detriment of the Appellant. 20. That the learned trial Magistrate erred in law and in fact by selectively and impartially focusing on the “I owe you agreement dated 4/07/2023” to apply the standard of proof on a balance of probabilities in the dispute to the exclusion of primary Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023 and a deed of acknowledgment dated 18/05/2018 all drawn and signed by the Respondent , thereby requiring a higher standard of proof in a civil claim beyond balance of probabilities to the detriment of the Appellant. 21. That the learned trial Magistrate erred in law and in fact by selectively and impartially focusing on the M-Pesa Statements paid by strangers into the Appellant’s Cellphone Number to apply the standard of proof in the dispute to dismiss with no costs the Appellant’s claim in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo and proceed to find he was owed a balance of the Claim to the detriment of the Appellant. 22. That the learned trial Magistrate erred in law and in fact by applying in error the principles of a fully performed sale & purchase agreement of a marionette into unperformed and unfulfilled Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 solely turned by the Respondent at his convenient into a debtor-creditor relationship to the detriment of the Appellant. 23. That the learned trial Magistrate erred in law and in fact by failing and ignoring to consider the Appellant’s submissions on the law, facts and evidence on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 as to the Respondent’s statement of defense, witness statement and evidence to the detriment of the Appellant. 24. That the learned trial Magistrate erred in law and in fact by applying selectively and unfairly in an unjudicial manner the stipulation of eight (8) months’ time frame in the “ I owe you agreement dated 4/07/2023 “ of repayment of a debt and interest thereof to the detriment of the Appellant , yet it is the Respondent who defaulted in not meeting his part of the debt on his part to pay the entire amount and interest within the of eight (8) months’ time frame , thereby necessitating the filing of Ukwala Case Number: MCCC/E031/2024, **Moses Richard Owuor-Versus-Oreka Godweince Omolo** on 8th April, 2024. 25. That the learned trial Magistrate erred in law and in fact by applying the principles of waiver in retrospective and selectively against the Appellant in favor of the Respondent in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo when in fact the case was already filed on or about 8th April, 2024 and the Respondent’s Kshs. 70,000 was paid on 13th May, 2024 @ 13:04:48 vide M-PESA SED44C345Q by unknown person without justification long after the eight (8) months’ time frame in the I owe you agreement dated 4/07/2023 had long lapsed and more than one (1) month after the claim suit was filed against the Respondent. Before and after filing of the claim, parties herein never entered into further negotiations and agreed on mode of payments, waiver of the claim and interests thereon after the date in the I owe you agreement and completion thereof. But instead the Respondent unilaterally and without any consensual negations and approval unilaterally re-wrote I owe you agreement and paid at his leisure & pleasure in installments, which variations and installments were never a subject of party’s consensual agreement. 26. That the learned trial Magistrate erred in law and in fact by applying in error ,law, facts and evidence that time of payment and waiver of claim under debtor-creditor relationship was of the essence on the part of the Appellant only and not on the part of the Respondent in the I owe you agreement dated 4/07/2023 in relation to time of payment , receipt and filing of Ukwala Case Number: MCCC/E031/2024, **Moses Richard Owuor-Versus-Oreka Godweince Omolo** thereby arriving at wrong findings, analysis , conclusion and judgment to the detriment of the Appellant. 27. That the learned trial Magistrate erred in law and in fact and deselected his duty to act judiciously under Article 159 of the Constitution based on evidence and circumstances under which the Respondent acted for his relative or person known to the Respondent in the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 and debtor-creditor relationship to the detriment of the Appellant. 28. That by disregarding the Appellant’s pleadings and submissions in the dispute, the learned trial Magistrate grossly erred in law and in fact and misdirected himself by failing to appreciate sufficiently or at all that the Respondent was the architecture and schemer in the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and debtor-creditor relationship in law and or in fact to the detriment of the Appellant. 29. That the learned trial Magistrate misdirected himself, mishandled and misconstrued the legal principle in the case before the Learned Trial Magistrate by reasons therefore came to a wrong conclusion on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and debtor-creditor relationship. 30. That the learned trial Magistrate grossly erred in law and in fact and misdirected himself by misapprehending the dispute before the Learned Trial Magistrate, applying the wrong principles of law and thereby arriving at a decision that is manifesting wrong and unsupported in law and by the evidence on record. 31. That the learned trial Magistrate misdirected himself and erred in law and fact in delivering a judgement that is contradicting and in conflict with the constitution, the law and evidence before it. Reasons whereof, the Appellant prays for the following reliefs: a) The Appeal herein be allowed with costs. b) The Judgment and Decree in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor -Versus- Oreka Godweince Omolo be set aside in entirety. c) The Honourable Court be persuaded to order and declare that the Appellant is entitled to claim and prayers sought as against the Respondent in Ukwala Case Number: MCCC/E031/2024 and do order as so as submitted vide Submissions dated 21st August, 2025. d) The Honourable Court does issue such orders and give such direction as it may consider appropriate to meet the ends of justice. 1. This being the first appellate Court, its duty is well spelt out to re-evaluate the evidence tendered before the trial Court and to arrive at its own independent conclusion. The Court will also have to take into account the fact that it did not see or hear the witnesses as they testified. See **Selle vs Associated Motor Boat Company Limited (1968(E. A. 123.)** 2. The Appellant had lodged suit vide a plaint dated 8th April 2024 in which he sought for the following reliefs; - 3. Kshs. 122, 000/= plus interest at 20% per month from 19th October 2022. 4. Lost opportunity to purchase land title No. UHOLO/UGUNJA/3535 (0.28Ha). 5. Compensation for inconveniences in a promising land transaction. 6. General and punitive damages given that the sale agreement was termination due to no fault of the Appellant but the Defendant’s fault and greed. 7. Punishment and fine for masquerading as a lawyer/advocate in a conveyancing transaction. 8. Costs of the suit. 9. The Respondent filed a statement of defence dated15/7/2025 and sought for the dismissal of the Appellant’s suit with costs. 10. The trial commenced in earnest on 12/7/2024. 11. **Moses Richard Owuor (PW1)** adopted is written statement and list of documents dated 8th April 2024 as his evidence in chief. He further stated that he was in court after the Defendant had cancelled the Sale Agreement he had entered into but had failed to fully refund the purchase price. That he knew the Defendant as an Advocate and he was the one who drew the Agreement. That the Sale Agreement was drawn by ODHIAMBO ONYANGO & CO. ADVOCATES. That the person he met is the one who signed the Agreement and it was GODWENCE OMOLO OREKA, the Defendant. That the cancellation was made by ODHIAMBO ONYANGO. It was the Defendant who signed the cancellation on his behalf. The Defendant informed him that he had received the sum of Kshs.300,000/= on his behalf and he should go and collect it. As per the Deed of Acknowledgement, the Defendant confirms that he was a clerk in the firm of ODHIAMBO ONYANGO ADVOCATES. After consultation with his Advocate, he came to collect the money but the Defendant did not have the entire amount. That they entered into an "I OWE YOU AGREEMENT" whereby the Defendant was to pay him by December but he did not receive the payment. The 20% interest was agreed upon in the I OWE YOU AGREEMENT. The Defendant was to pay the sum of Kshs.140,000/= by end of December 2022. He only paid Kshs.32,000/=. In February, he paid Kshs.24,000/= and in May 2024, he paid Kshs.70,000/= via M-Pesa. By then the Agreement had expired and the suit already filed. On cross examination, he confirmed that the Sale Agreement was between himself and Mary Otieno Obai. The Advocate was Odhiambo Onyango. He did not conduct a search to confirm if the Defendant was an Advocate. He could not confirm when he received the sum of Kshs.178,000/=. He went to collect the money from the Defendant. The Defendant sent him Kshs.155,000/= through KCB Bank. On 30th June 2023, he received Kshs.100,000/=. The “I owe you agreement” is dated 4th July 2023. The amount in issue was Kshs.100,000/= which was owed to him by then. After 4th July 2023, he has received some money from the Defendant. In total he has received Kshs.116,500/= from 4th July 2023 to date. That from 30th June 2023 to date, he has received Kshs.126,500/=. On re-examination, he stated that he used to meet the Defendant at the offices of Odhiambo Onyango Advocate’s offices at Ugunja. That the Defendant was acting as an Advocate. That he is the one who used to send him the money and thus a confirmation that he was the one doing the transaction. That he did not sign the cancellation agreement. That he was to pay Kshs 140,000/ which he did not. 1. **Oreka Godwence Omolo (DW1) was** the Respondent herein. He adopted his written statement and list of documents filed on 6th August 2025 as his evidence in-chief. He further stated that he works as clerk at the office of Odhiambo Onyango & Co. Advocates. He acted as an intermediary between the Plaintiff (Buyer) and the Seller and he was a witness. The two parties went to their office for the Sale Agreement. The parties signed the Agreement. After some time, the seller complained that they had disagreed with the buyer for not meeting their obligation under the Sale Agreement. He was aware of the cancellation of the Sale Agreement as the seller went to their offices and left there the money that had been paid to them as part of the purchase price stating that they were no longer interested in the Agreement. The seller surrendered Kshs.300,000/=. He contacted the Plaintiff and informed him of the position but the Plaintiff responded that he was not interested in the cancellation. The Plaintiff did not collect the money immediately but came after a month. By then, he did not have the entire amount. He paid him Kshs.175,000/= through KCB since he was the one in custody of the money. They agreed that he would pay the balance of Kshs.125,000/= within a certain period. Prior to the I OWE YOU AGREEMENT, he had paid some money to the Plaintiff. At the time of entering into the I OWE YOU AGREEMENT, he did not have the money and the Plaintiff insisted that he would round of the balance to a round figure of Kshs.100,000/=. By then he owed him about Kshs.70,000/=. On cross examination, he confirmed that there was a Sale Agreement which he witnessed though he did not sign it. He received the money on behalf of the Plaintiff since he was the one who knew him. He connected the Plaintiff to the Vendor. He knew the Vendor as she was a family friend. The Vendor complained that the Plaintiff wanted to collect rent from the tenants on the sold property yet he had not paid even the second instalment. He was asked to contact the Plaintiff and he received the money on his behalf. He signed the I OWE YOU AGREEMENT which was to run up to December 2023. He did not pay the full amount as he did not have the full amount at the time the Plaintiff came to collect the money. 1. That marked the end of the Respondent’s case. 2. The learned trial magistrate later considered the evidence an came up with the impugned judgement. 3. The appeal was canvassed by way of written submissions. However, it is only the Appellant who complied. 4. The Appellant opted to submit on each ground of appeal. On the first ground of appeal, it is the Appellant’s submissions that the claim for Kshs. 122,000 was not paid by the Respondent and remains unpaid as the Respondent did not adduce any evidence that he indeed paid the said sum as per the terms of “I owe you agreement” on record. By relying on uncorroborated and doctored m-pesa statement and third party’s payments to the Appellant the learned trial Magistrate erred in law and in fact by finding that unsubstantiated payment Kshs. 126,500 was in settlement of the Kshs. 122,000 claim thereby casualization of a judicial process to the detriment of the Appellant. That the third parties had paid Kshs. 127,500 to the Appellant on matters that were not related to “I Owe You Agreement”. That the evidence on record show how the Respondent desperately tried to doctor electronic evidence and m-pesa statement to match the Kshs. 122,000. The trial court failed to act judiciously and subject the m-pesa statement and payment print outs to judicial scrutiny. 5. On second ground of appeal, it is the Appellant’s contention and submissions that the Respondent’s M-Pesa Evidence and payment print outs did not directly prove that the alleged payments of Kshs. 126,500 (actual Kshs. 127,500) was made by the Respondent to the Appellant. Daniel Oloo, Fredrick Owuor, Emmaculate Ochieng, Vintage Distributors, Fredrick Otieno Owour, Rodgers Ahura, Joyce Ogutu, Dalton Otieno, Meshack Onyango, Stephen Onyango and Manna Lifestyle Ugunja were not parties to the claim and were not witnesses in the trial court. Payment of Kshs. 122,000 was not proved by the Respondent. 6. On third ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by computing Kshs. 126,500 as having being paid by 4th March, 2024, which computation was wrong both in fact and in law contrary to the party’s pleadings and evidence that as of 8th April, 2024, the Respondent had not paid any single cent out of the “I owe you agreement” dated 4/07/2023.There are no evidence on record to show and match that the Respondent in deed paid Kshs. 122,000 claim to the Appellant. 7. On Fourth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by proceeding to find that the amount of money due and owing to the Appellant was Kshs. 14,000 and in fact that the Respondent had overpaid an excess of Kshs. 4,500 which proceeding and findings were contradictory findings and conclusion in one judgment to the detriment of the Appellant. The Appellant’s Claim of Kshs. 122,000 against the Respondent remains unpaid to date. There is no way the trial court could find that the Respondent was owing the Appellant Kshs. 14,000 but still proceed to state that the Respondent had overpaid by Kshs. 4,500. It is the Appellant’ s submissions that the trial court’s judgement is a contradiction to exercise of judicial power and abdication of judicial functions by a judicial officer. The outstanding amount was Kshs, 122,000 and not Kshs. 14,000. There was no overpayment of Kshs. 4,500 made by the Respondent to the Appellant. The m-pesa statement and payment print out messages were from Daniel Oloo, Fredrick Owuor, Emmaculate Ochieng, Vintage Distributors, Fredrick Otieno Owour, Rodgers Ahura, Joyce Ogutu, Dalton Otieno, Meshack Onyango, Stephen Onyango and Manna Lifestyle Ugunja excluding the Appellant. 8. There was no evidence and witness statement that indeed the Respondent paid Kshs. 126,500 to the Appellant as alleged in satisfaction of Kshs. 122,000 claim. Consequently, the learned trial Magistrate misdirected himself and erred in law and fact in delivering a judgement that is contradicting and in conflict with the constitution, the law and evidence before it to the detriment of the Appellant. The High Court has the authority to review trial court decisions on the admissibility of doctored payments print outs and is now called upon to overturn them if deemed incorrect or unjust to a party. 9. On fifth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by depriving the Appellant constitutional right to institute a suit on the ground that the Appellant was to demand Kshs.14, 000 and not to insist on a suit upon receipt of Kshs. 70,000, yet the suit was filed on 8th April, 2024 and the Kshs. 70,000 paid on or about 13th May, 2024 more than one month after the suit was filed. This was a clear misapprehension of the claim, the fact and issues of the case in dispute thereby leading to contradictory findings and conclusion in one judgment to the detriment of the Appellant. One Stephen Onyango (pages 55 & 56 of the Record of Appeal) paid Kshs. 70,000 on 13/05/2024 at 1.04 p.m. The said Stephen Onyango was not a party to the dispute and was not called by the Respondent as a witness to testify in the trial court. The trial court did not appreciate and failed or ignored to understand the claim before him thereby arriving at wrong analysis and conclusion of fact that the Appellant ought to have demanded Kshs. 14,000 instead of instituting the suit. 10. On sixth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by ignoring the law and facts on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement dated 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof that were solely drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent therefrom at the Respondent’s own convenient into a debtor-creditor relationship to the detriment of the Appellant. The trial magistrate was casual and reckless in undertaking his judicial duties under Article 169 of the Constitution 2010. The Respondent was the brain and architecture of the purchase of land number Uholo/Ugunja/3535 (0.282 Ha), just the same way he misled the Honourable trial court to believe that his alleged m-pesa statements and payments print outs were for repayment of Kshs. 122,000. The m-pesa statement do not bear the name of the Respondent and the payment print outs are doctored /manipulated in favour of the Respondent. For example, at pages 41, 48 & 49 of the Record of Appeal, the Respondent manipulated payment messages print out vide transaction RIN8KPPGFM CONFIMED Kshs. 5,000 to give the impression of two different of Kshs. 5,000 each and an impression of m-pesa balances of Kshs. 576.73, Kshs. 19,633.73 and Kshs. 14,576.73 in the same transaction. This was with the sole intention to match transactions of 13/02/2024 in the message print out and transaction of 28th March, 2024 in the m-pesa statement. A transaction balance of Kshs. 19,633.73 has no transaction cost beside it. 11. On seventh ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by ignoring and delinking Appellant’s prayer (a) from the rest of prayers (b to e) on a dispute and series of pleadings and evidence on a Claim of Kshs. 122,000 arising from the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof drawn, signed and executed by the Respondent and the repayments of funds received by the Respondent to the detriment of the Appellant. The claim of Kshs. 122,000 was not paid and remains outstanding to date. The foundational documents to the claim are the very documents that the Appellant used to sue the Respondent and based the prayers (a) to (e) of the Plaint in the lower court. This was a clear and open biasness by the trial court towards the Appellant’s case and whereas the said trial court was easily swayed to dismiss the Appellant’s case by using doctored m-pesa statement and payment print outs made by the Respondent to deny Appellant justice in a judicial process. To justify this ground, it is the Appellant’s submissions that the trial court’s finding that a payment of Kshs. 126,500 was in satisfaction of Kshs. 122,000 was based on no evidence and acted on wrong principles in arriving at the finding it did. The Appellant’s claim of Kshs. 122,000 remains unsettled to date. 12. On eighth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by misconstruing the Appellant’s case as against the Respondent as opposed to one Mary Otieno Obai based on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof drawn ,signed and executed by the Respondent and the alleged repayments of funds received by the Respondent to the detriment of the Appellant. The schemes and methods to frustrate the Appellant were designed and executed by the Respondent as opposed to one Mary Otieno Obai, a relative of the Respondent, thus the suit against the Respondent. It was therefore wrong for the trial court to imagine and insinuate that the correct party to sue was one Mary Otieno Obai and not the Respondent. By so finding and concluding, the trial court abdicated its judicial functions and became an active litigant instead of being an impartial arbiter of fact and law in a dispute before it. That is the same way the trial court was able to quickly accept alleged payments by Daniel Oloo, Fredrick Owuor, Emmaculate Ochieng, Vintage Distributors, Fredrick Otieno Owour, Rodgers Ahura, Joyce Ogutu, Dalton Otieno, Meshack Onyango, Stephen Onyango and Manna Lifestyle Ugunja despite them not being parties to the dispute before the trial court. 13. On ninth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by misconstruing the Appellant’s case as against the Respondent in the context of masquerading as an advocate and punishment thereof viz-a-viz **Camilita Akinyi Odebero v Wilfred Barasa Opondo [2017] KEHC 3903 (KLR)** based on the role the Respondent played in drafting the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent to the detriment of the Appellant. The schemes and methods in the whole dispute were designed, executed and attributed to the Respondent. In so doing, the trial court was easily manipulated and swayed by the Respondent’s manufactured payment messages print out vide transaction RIN8KPPGFM CONFIMED Kshs. 5,000 but leaving amount transaction within the day as a constant figure of Kshs. 493,800, even after allegedly making two different payments at 8:52 p.m. Amount one can transact within a day reduces as one makes subsequent payments while using m-pesa platform mode of payment. 14. On tenth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by applying both the ratio decidendi and obiter dicta in High Court of Kenya at Nairobi Civil Suit No. 287 of 2013, **Taj Mall Limited-V-Hellen Njambi Mbugua**, to a claim of interests only at 29 & per annum on a completed sale agreement, which was not the case in Ukwala Case Number: MCCC/E031/2024, **Moses Richard Owuor-Versus-Oreka Godweince Omolo** thereby arriving at wrong judicial findings, reasoning, analysis, conclusions and judgement to the detriment of the Appellant. The Appellant’s claim against the Respondent was for Kshs. 122, 000/ plus interest at twenty per cent per month from 19th October, 2022, Lost opportunity to purchase Land Title Number: Uholo/Ugunja/3535 (0.282ha), Compensation for inconveniences in a promising land transaction, General and punitive damages given that the sale agreement was terminated due to no fault of Appellant own but the Respondent /Advocate fault and greed and Punishment and fine for masquerading as a lawyer/advocate in a conveyancing transaction. 15. On eleventh ground of appeal, it is the Appellant’s contention and submissions that the learned magistrate erred in law and in fact in disregarding evidence that the relationship between the Appellant and the Respondent was that of client-advocate inside M/S Odhiambo Onyango Advocates law firm when in fact the Appellant saw the Respondent first hand evidence and experience in drawing the agreements as an advocate, signed differently and witnessed with all circumstantial evidence attesting to that including receipt and refund of part of purchase price culminating to I owe you agreement dated 4/07/2023.The same trick that the Respondent used in the transaction is the same one he deployed in manipulating m-pesa statement and payment print outs in his evidence. At pages 41, 48 & 49 of the Record of Appeal, the Respondent manipulated payment messages print out vide transaction RIN8KPPGFM CONFIMED Kshs. 5,000 to give the impression of two different transactions of Kshs. 5,000 each and an impression of m-pesa balances of Kshs. 576.73, Kshs. 19,633.73 and Kshs. 14,576.73 in the same transaction. This was with the sole intention to match transactions of 13/02/2024 in the message print out and transaction of 28th March, 2024 in the m-pesa statement. A transaction balance of Kshs. 19,633.73 has no transaction cost beside it. 16. On twelfth ground of appeal, it is the Appellant’s contention and submissions that the learned magistrate erred in law and in fact in disregarding stare decisis in the dispute demonstrating that the Respondent drew and signed Agreements as an advocate and receipt of the purchase price thereof. In what capacity would a non-advocate receive purchase money and proceed to sign I owe you agreement, if in deed he was not one. The trial court failed to take judicial notice and draw reference from the Respondent’s manipulated m-pesa statement and payment messages print outs in order to discredit the Appellant Claim. 17. On thirteenth ground of appeal, it is the Appellant’s contention and submissions that the learned magistrate erred in law and in fact in identifying and determining the issues in dispute and claim between the parties as discerned from the pleadings, evidence, hearing and submissions on record. A total payment of Kshs. 127,500 via Appellant cellphone number 0720408488 by non-suited individuals who had no interest and connected to the case were taken as relevant and admissible evidence without the Respondent calling the individuals as his witnesses to the detriment of the Appellant. Upon further scrutiny, it is evident that the m-pesa statement and payment print out messages were manipulated to fit the Respondent’s case and circumstances as evidence without being authenticated to verify their genuineness and origin. The said non-suited individuals were not pleaded, did not write their witness statements and were not called by the Respondent during trial to support the payments thereof. The said payments did not have logical connection to the issue at hand and were not related to I owe you agreement signed between the parties herein but for different business of the Appellant. The trial court relied on forged or fake evidence to find that the Claim of Kshs. 122,000 had been settled by using m-pesa statement and payment print out messages whose integrity and pleadings were in doubt. 18. On fourteenth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by applying both case law and principles applicable in a sale & purchase of a maisionnette agreement to charge interests at 29 & per annum on a completed sale agreement as opposed to creditor-debtor law principles thereby falling into improper application of case law that lead to legal errors and undermining the integrity of the judicial process. The trial magistrate failed to understand the legal principles and precedents established by previous cases in maisionnette agreement and borrowed wrong legal principles and precedents into the Appellant case thereby resulting into incorrect legal findings and conclusions to the detriment of the Appellant. It's crucial to analyze the reasoning and conclusions of the case law to ensure it aligns with the current legal context. 19. It was also submitted that a sale & purchase of a maisionnette agreement to charge interests at 29 & per annum was wrongly used by the trial court to discredit Appellant’s case on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 arising from a sale and cancellation of land transaction agreement that was initiated, drawn , acknowledged , signed , cancelled and turned into a debtor-creditor relationship at the sole behest of the Respondent as the advocate for both the Appellant and the Respondent-his vendor relative. 20. On fifteenth and sixteenth grounds of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by applying in error the legal principles of waiver that were never pleaded and proved by the Respondent defense into a debtor-creditor relationship under unfulfilled Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 that was turned into debtor-creditor relationship by the Respondent to the detriment of the Appellant. The learned trial Magistrate failed to distinguish between a prior case and the current matter at hand if the factual or legal circumstances of the Appellant’s present case differed significantly from Nairobi Civil Suit No. 287 of 2013 by applying both the ratio decidendi and obiter dicta in High Court of Kenya at Nairobi Civil Suit No. 287 of 2013, Taj Mall Limited-V-Hellen Njambi Mbugua into the law, facts and issues in Ukwala Case Number: MCCC/E031/2024, **Moses Richard Owuor-Versus-Oreka Godweince Omolo** thereby arriving at wrong judicial findings, reasoning, analysis, conclusions and judgement to the detriment of the Appellant. A thorough analysis of the reasoning and conclusions within the case law was essential and this required the trial court to understand the facts, legal principles, and the court's interpretation to grasp the implications of the case law. However, the trial court erred to appreciate the Appellant case and distinguish it with Nairobi Civil Suit No. 287 of 2013 thereby leading to miscarriage of justice to the detriment of the Appellant case. 21. On seventeenth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by applying both the ratio decidendi and obiter dicta in a distinguishable case of High Court of Kenya at Nairobi Civil Suit No. 287 of 2013**, Taj Mall Limited-V-Hellen Njambi Mbugua**, a case on charging interests only into the law, facts and issues in Ukwala Case Number: MCCC/E031/2024, **Moses Richard Owuor-Versus-Oreka Godweince Omolo** a case for claim of Kshs. 122,000 plus interests, lost opportunities, compensation, general & punitive damages, punishment and fine thereby arriving at wrong judicial findings, reasoning, analysis, conclusions and judgement to the detriment of the Appellant. The trial court failed and or ignored to undertake a thorough analysis of the reasoning and conclusions within the case law and understanding the facts, legal principles, and the court's interpretation to grasp the implications of the case law into the Appellant’s case and evidence at hand. This lead to miscarriage of justice to the detriment of the Appellant. In particular, this court is not bound necessarily to follow the trial Magistrates ’s findings of fact if it appears either that the trial court clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. 22. On eighteenth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by selectively and impartially focusing on the “I owe you agreement dated 4/07/2023” to apply the standard of proof on a balance of probabilities in the dispute to the exclusion of primary Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023 and a deed of acknowledgment dated 18/05/2018 all drawn and signed by the Respondent , thereby requiring a higher standard of proof in a civil claim beyond balance of probabilities to the detriment of the Appellant. Comparing and contrasting different case laws can help identify trends, establish precedents, and apply judicial knowledge strategically in arguments or legal reasoning in a case before. the learned trial Magistrate failed and or ignored to apply his judicial mind to the facts and law before him to the detriment of the Appellant thereby dismissing a case that was proven and not seriously challenged by the Respondent. 23. On nineteenth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by selectively and impartially focusing on the M-Pesa Statements paid by strangers into the Appellant’s Cellphone Number to apply the standard of proof in the dispute to dismiss with no costs the Appellant’s claim in Ukwala Case Number: MCCC/E031/2024, **Moses Richard Owuor-Versus-Oreka Godweince Omolo** and proceed to find he was owed a balance of the Claim to the detriment of the Appellant. The trial court was both wrong in admitting unsupported third party’s payment and doctored print out payments messages thereby leading to improper reasoning and ultimate wrong finding that the Claim was settled. At pages 41, 48 & 49 of the Record of Appeal, the Respondent manipulated payment messages print out vide transaction RIN8KPPGFM CONFIMED Kshs. 5,000 to give the impression of two different of Kshs. 5,000 each and an impression of m-pesa balances of Kshs. 576.73, Kshs. 19,633.73 and Kshs. 14,576.73 in the same transaction. This was with the sole intention to match transactions of 13/02/2024 in the message print out and transaction of 28th March, 2024 in the m-pesa statement. A transaction balance of Kshs. 19,633.73 has no transaction cost beside it. 24. On twentieth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by applying in error the principles of a fully performed sale & purchase agreement of a marionette into unperformed and unfulfilled Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 solely turned by the Respondent at his convenient into a debtor-creditor relationship to the detriment of the Appellant. In addition, the learned trial Magistrate erred in law and in fact by finding that Kshs. 126,500 allegedly paid by the Respondent in installment was in satisfaction of Kshs. 140,000, yet the Respondent’s m-pesa evidence did not directly prove that the alleged payments of Kshs. 126,500 (actual 127,500) against a claim of 122,000 was by the Respondent but by different persons not party to the dispute, namely Daniel Oloo, Fredrick Owuor, Emmaculate Ochieng, Vintage Distributors, Fredrick Otieno Owour, Rodgers Ahura, Joyce Ogutu, Dalton Otieno, Meshack Onyango, Stephen Onyango and Manna Lifestyle Ugunja). The said persons were not pleaded and averred in the Respondent’s statement of Defense (pages 27-30 of the Record of Appeal) and Respondent’s witness statement (pages 31-32 of the Record of Appeal). In summary, the alleged payment messages and m-pesa statement by non-suited parties were as below: - 25. On twenty first ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by failing and ignoring to consider the Appellant’s submissions on the law, facts and evidence on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 as to the Respondent’s statement of defense, witness statement and evidence to the detriment of the Appellant. The total payment of Kshs. 127,500 via Appellant cellphone number 0720408488 by non-suited individuals who had no interest and connected to the case did to relive the Respondent’s from meeting part of his bargain arising from I owe you agreement. The said non-suited individuals were not pleaded, did not write their witness statements and were not called by the Respondent during trial to support the payments thereof. The said payments were not related to I owe you agreement signed between the parties herein but for different business of the Appellant. 26. On twenty second ground of appeal, it is the Appellant’s contention and submissions that the earned trial Magistrate erred in law and in fact by selectively applying and unfairly in an unjudicial manner the stipulation of eight (8) months’ time frame in the “ I owe you agreement dated 4/07/2023 “ of repayment of a debt and interest thereof to the detriment of the Appellant , yet it is the Respondent who defaulted in not meeting his part of the debt on his part to pay the entire amount and interest within the of eight (8) months’ time frame , thereby necessitating the filing of Ukwala Case Number: MCCC/E031/2024, **Moses Richard Owuor -Versus- Oreka Godweince Omolo** on 8th April, 2024. Among the 11 transactions above, there is no name that matches the Respondent with the payments thereof in both the m-pesa statement and messages print out. The trial court easily and injudiciously admitted manipulated payment messages print out vide transaction RIN8KPPGFM CONFIMED Kshs. 5,000 but leaving amount transaction within the day as a constant figure of Kshs. 493,800, even after allegedly making two different payments at 8:52 p.m. Amount one can transact within a day reduces as one makes subsequent payments while using m-pesa platform mode of payment. 27. On twenty third ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by applying the principles of waiver in retrospective and selectively against the Appellant in favor of the Respondent in Ukwala Case Number: MCCC/E031/2024, **Moses Richard Owuor-Versus-Oreka Godweince Omolo** when in fact the case was already filed on or about 8th April, 2024 and the Respondent’s Kshs. 70,000 was paid on 13th May, 2024 at 13:04:48 vide M-PESA SED44C345Q by Stephen Onyango without justification long after the eight (8) months’ time frame in the I owe you agreement dated 4/07/2023 had long lapsed and more than one (1) month after the claim suit was filed against the Respondent. Before and after filing of the claim, parties herein never entered into further negotiations and agreed on mode of payments, waiver of the claim and interests thereon after the date in the I owe you agreement and completion thereof. But instead the Respondent unilaterally and without any consensual negations and approval unilaterally re-wrote I owe you agreement and manufactured alleged payment messages and m-pesa statement print out at his leisure & pleasure in installments, which variations and installments were never a subject of party’s consensual agreement. 28. On twenty fourth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by applying in error ,law, facts and evidence that time of payment and waiver of claim under debtor-creditor relationship was of the essence on the part of the Appellant only and not on the part of the Respondent in the I owe you agreement dated 4/07/2023 in relation to time of payment , receipt and filing of Ukwala Case Number: MCCC/E031/2024, **Moses Richard Owuor-Versus-Oreka Godweince Omolo** thereby arriving at wrong findings, analysis , conclusion and judgment to the detriment of the Appellant. The trial court could not match who paid what from the m-pesa statement and messages print out due to discrepancies between payments made and the corresponding transactions print outs. 29. On twenty fifth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact and deselected his duty to act judiciously under Article 159 of the Constitution based on evidence and circumstances under which the Respondent acted for his relative or person known to the Respondent in the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 and debtor-creditor relationship to the detriment of the Appellant. At page 41 of the Record of Appeal, the corresponding balance for transaction RIN8KPPGFM CONFIMED Kshs. 5,000 in m-pesa statement is Kshs. 14,633.74 and not Kshs. 576.73, Kshs. 19,633.73 and Kshs. 14,576.73 as indicated in the payment messages print out. 30. On twenty sixth ground of appeal, it is the Appellant’s contention and submissions that by disregarding the Appellant’s pleadings and submissions in the dispute, the learned trial Magistrate grossly erred in law and in fact and misdirected himself by failing to appreciate sufficiently or at all that the Respondent was the architecture and schemer in the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and debtor-creditor relationship in law and or in fact to the detriment of the Appellant. The alleged payments by strangers to the claim and in the absence of their witness statements did not necessitate the Appellant’s to waive his rights to claim under I owe you agreement, the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023.In any event, the agreement was that the refund was to be made in full and not via installation. 31. Further, it is the Appellant’s contention and submissions that the learned trial Magistrate misdirected himself, mishandled and misconstrued the legal principle in the case before the Learned Trial Magistrate by reasons therefore came to a wrong conclusion on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and debtor-creditor relationship. Vintage Distributors payment messages print out twice on 23/09/2023 and on 3rd October, 2023 on the same transaction to represent two different transactions yet in actual fact it is one transaction made on 23rd September 2023 @ 8:52 p.m vide transaction RIN8KPPGFM CONFIMED Kshs. 5,000 at pages 48 & 49 of the Record of Appeal. 32. The learned trial Magistrate grossly erred in law and in fact and misdirected himself by misapprehending the dispute before the learned trial Magistrate, applying the wrong principles of law and thereby arriving at a decision that is manifesting wrong and unsupported in law and by the evidence on record. In addition, it is the Appellant’s contention and submissions that the learned trial Magistrate misdirected himself and erred in law and fact in delivering a judgement that is contradicting and in conflict with the constitution, the law and evidence before it. The alleged payment by installation was a variation of the agreement to the detriment of the Appellant and the Honourable court should not condone the Respondent's unconscionable conduct, which led to his failure to fulfill his obligation and his subsequent benefit from his wrongdoings. To that end, the Appellant avers he suffered injustice and contravened the Appellant’s right to property, both the land and the money. This should evoke a finding toward the appellant's situation. 33. It is therefore the Appellant’s submissions that the learned trial Magistrate erred in law and in fact by applying the principles of waiver in retrospective and selectively against the Appellant in favor of the Respondent in Ukwala Case Number: MCCC/E031/2024, **Moses Richard Owuor-Versus-Oreka Godweince Omolo** when in fact the case was already filed on or about 8th April, 2024 and the Respondent’s Kshs. 70,000 was paid on 13th May, 2024 at 13:04:48 vide M-PESA SED44C345Q by unknown persons without justification long after the eight (8) months’ time frame in the I owe you agreement dated 4/07/2023 had long lapsed and more than one (1) month after the claim suit was filed against the Respondent. Before and after filing of the claim, parties herein never entered into further negotiations and agreed on mode of payments, waiver of the claim and interests thereon after the date in the I owe you agreement and completion thereof. But instead the Respondent unilaterally and without any consensual negations and approval unilaterally re-wrote I owe you agreement and paid at his leisure & pleasure in installments, which variations and installments were never a subject of party’s consensual agreement. The Respondent should, therefore, not be allowed to renege from the agreement and unjustly enrich himself by keeping the money already paid by the Appellant, as this is nothing but greed. 34. Various Respondent ’s admissions and acknowledgements are worth pointing about as follows: - Paragraph 4 of the Statement of the Defense, the Respondent admitted “it is indeed true that he connected the two parties and as such was the conduit between the vendor and the purchaser in the sale of land agreement alluded to”. This is corroborated by the Respondent ’s witness statement at paragraph 2 where he says “I did connect the Appellant and Mary Obai “and during cross examination. The Respondent admitted that Mary Obai is his relative. Paragraph 6 of the Statement of the Defense, the Respondent admitted “the vendor entrusted the Respondent with the money being a refund of Kshs. 300,000 that was to be given back to the Appellant” Paragraph 7 of the Statement of the Defense, the Respondent admitted “that indeed he signed an “I Owe You” agreement with the Appellant after paying the Appellant a total of Kshs. 178, 000 out of the Kshs. 300,000 that was to be paid back to the Appellant”. This admission is corroborated by the sale agreement dated 19th October, 2022 which bears the Respondent ’s signature as “an advocate & a witness” for the purchaser & the vendor on all the pages of the sale agreement whereas the Respondent ’s same signature as a debtor to the Appellant /creditor appears on the “I owe you agreement” dated 4h July, 2023 and signed off by the Respondent. 1. Both paragraphs 6 and 7 of the of the Statement of the Defense are corroborated with and proved by the Respondent s “Deed of acknowledgement” dated 18th May, 2023 and “Agreement for cancellation of sale of land agreement dated 19th October, 2022”, prepared and signed by the Respondent using different signature both as the advocate and the witness at the same time. Paragraph 8 of the Statement of the Defense, the Respondent admitted “that indeed he signed an “I Owe You” agreement with the Appellant after paying the Appellant total of Kshs. 178, 000 out of the Kshs. 300,000 that was to be paid back to the Appellant”. 1. The Appellant is persuaded that the above admissions in the Respondent ’s Statement of the Defense and witness statement are clear and explicit admissions of the Claim and judgment on the admission ought to be entered for the Appellant as pleaded as of 13th May, 2024 when the first payment was made. 2. The question of interest at twenty per cent per month from 19th October, 2023 to 13th May, 2024 is not disputed and the Honourable court is therefore invited to apply the prorated interest rate on Kshs. 122,000 \* 5 months and twenty-three days (Kshs. 122,000 \* 18 months \* 23 days) is computed at Kshs. 336,720 as interests’ payable by the Respondent to the Appellant computed as per the terms applicable. To support this proposition, the Appellant relies upon the case of **Kivungi v Mangenge (Civil Appeal 22 of 2019) [2024] KECA 1755 (KLR)** (6 December 2024) (Judgment). 3. In view of the above and Judgment on admission, the relevant law is Order 13 Rule 2 of the Civil Procedure Rules which provides as follows: **“Any party may at any stage of a suit where admission of facts was made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just.”** 1. On judgment on admission, the Appellant is content to cite the case of **Guardian Bank Limited vs. Jambo Biscuits Kenya Limited [2014] eKLR** that: - the principle applicable in judgment on admission is that the admission must be very clear and unequivocal on a plain perusal of the admission. The admission in the sense of Order 13 Rule 2 of the Civil Procedure Rules is not one which requires copious interpretations or material to discern. It must be plainly and readily discernible. In such clear admission, like J.B. Havelock J stated in the case of 747 Freighter Conversion LLC v One Jet One Airways Kenya Ltd & 3 Others HCCC No. 445 of 2012, there is no point in letting a matter go for a trial for there is nothing to be gained in a trial. See the case of **Botanics Kenya Ltd Ensign Food (K) Ltd Hccc No. 99 of 2012**, where Ogola J gave a catalogue of other cases which amplified this principle. These cases are: 2. **Choitram v Nazari (1984) KLE 327** that; - **“...admissions have to be plain and obvious as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning.”** Chesoni Ag. JA went on to add that: - **“...an admission is clear if the answer by a bystander to the question whether there was an admission of facts would be ‘of course there was’’.** **Cassam v Sachania (1982) KLR 191** – **“The judge’s discretion to grant judgment on admission of fact under the order is to be exercised only in plain cases where the admissions of fact are so clear and unequivocal that they amount to an admission of liability entitling the Appellant to judgment’’.** 1. Lost opportunity cost to purchase land Title Number Uholo/Ugunja/3535(0.282HA), portion sold 0.05HA at Kshs. 850,000. 2. The land transaction was made in 2022 and there was lost opportunity for the period of three years. The Appellant had legitimate expectation to purchase land Title Number Uholo/Ugunja/3535(0.282HA), portion sold 0.05HA at Kshs. 850,000 due oppressive and arbitrariness by the Respondent in the land transaction. He proceeds to pay the deposit and was willing to continue with the further payment of the full purchase price. The Appellant had exercised diligence and reasonable inquiry into the property’s status when he signed the sale agreement and proceed to pay the initial installment towards the purchase price. The Appellant puts reliance in **Torino Enterprises Limited vs. Attorney General,** stressing that an innocent purchaser **“exercised due diligence, which would include, but is not limited to, inspecting the suit property”.** 3. The Appellant Lost opportunity to purchase land Title Number Uholo/Ugunja/3535(0.282HA), portion sold 0.05HA at Kshs. 850,000 because of the transactional negligence and malpractice on the part of the Respondent. The Honourable Court ought to award damages to the Appellant for lost opportunity to purchase land. The Appellant relies on 11SC899, Gibbons v. Ludlow case to support lost opportunity cost to purchase the land by delayed refund /late payment and unilateral cancellation of the sale agreement at the behest of the Respondent. 4. Compensation for inconveniences in a promising land transaction. Compensation for distress and inconvenience in a promising land transaction is claimable and payable under this claim as the Appellant proved the role and conduct played by the Respondent in frustrating the land transaction and the delay in refunding the deposit paid towards the purchase of land. The Respondent caused the Appellant emotional or practical harm, financial distress, extreme inconvenience and losses. The Appellant proses an award of Kshs. 300,000 as compensation for inconveniences in a promising land transaction and puts reliance in the case of **Wambugu v Njoroge & another (Civil Appeal 520 of 2019) [2023] KEHC 23807 (KLR)** (Civ) (18 October 2023) (Judgment). 5. General and punitive damages 6. The Respondent was candid and admitted during the hearing that he was assigned conveyancing work in this dispute by the firm of M/S Odhiambo Odera & Ass. Advocates. The Appellant suffered oppressive and arbitrariness by the Respondent and therefore his claim for General and punitive damages was justified as prayed. To that extend and on admission by the Respondent, the Appellant proposes Kshs. 500,000 as General and punitive damages, a sufficient deterrent measure to would be masqueraders as an advocate. The law firm of M/S Odhiambo Odera & Ass. Advocates ought to be sanctioned by the Court on why they allowed the Respondent to act as an advocate in a convening matter. In support of this proposition, the Appellant cites the case of **Camilita Akinyi Odebero v Wilfred Barasa Opondo [2017] KEHC 3903 (KLR**) as circumstances permit. 7. REASONS WHEREOF, the Appellant requests the Honourable Court for orders/prayers against the Respondent that: - a) The Appeal herein be allowed with costs. b) The Judgment and Decree in Ukwala Case Number: MCCC/E031/2024, **Moses Richard Owuor-Versus-Oreka Godweince Omolo** be set aside in entirety. c) The Honourable Court be persuaded to order and declare that the Appellant is entitled to claim and prayers sought as against the Respondent in Ukwala Case Number: MCCC/E031/2024 and do order as so as submitted vide Submissions dated 21st August, 2025. d) The Honourable Court does issue such orders and give such direction as it may consider appropriate to meet the case and justice. 1. I have considered the record of appeal and the submissions tendered. It is not in dispute that the Appellant herein had engaged the Respondent over purchase of land in Ugunja and that the Respondent acted as the go-between and secured the seller and that a sale transaction was duly entered into. It is not in dispute that the said sale transaction was later cancelled after the seller backed off. It is not in dispute that the Appellant channeled the purchase price to the Respondent. It is not in dispute that the Appellant and the Respondent later entered into an I owe you arrangement whereby the Respondent was obligated to refund the sums already paid out to him by the Appellant. It is not in dispute that the Respondent did make some repayments but did not complete the same by the time the suit was filed. I find the issue for determination is whether the Appellant proved his case on a balance of probabilities. 2. The *legal burden of proof* was on the Appellant to prove his claim on a balance of probabilities. It was therefore incumbent upon the Respondent to prove his assertions pleaded in the Plaint. Section 107(1) of the *Evidence Act*, Cap 80 provides that: **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.** 1. However, the burden may shift to the Defendant to disprove the alleged claim. This is the *evidential burden of proof,* which is well captured under Sections 109 and 112 of the Evidence Act. See **Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334**. 2. The two concepts are well illustrated by the Court of Appeal in the case of **Mbuthia Macharia v Annah Mutua & Another [2017] eKLR**, that: **“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes an evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.”** See **Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR,** 1. The *standard of proof* is well captured in the case of **Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR**, where the Court held that: **Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372, discussing the burden of proof, had this to say:** **“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say, we think it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”** 1. **Kimaru J.** (as he then was) in **William Kabogo Gitau vs George Thuo & 2 others (2010) 1 KLR 526** stated that: **“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred.”** 62. It is noted that upon the cancellation of the sale agreement, the Appellant contacted the Respondent for refund of his monies and thus they entered into what they have now called ‘’I owe You’’ wherein the Respondent undertook to repay the sums of money that had been channeled to him by the Appellant. From the documents filed and exchanged between the parties, it is clear that the initial sale agreement was in respect of parcel number Uholo/Ugunja/3535 belonging to one Mary Otieno Obai at a consideration of Kshs.850,000/= payable in three instalments as per the Agreement. That upon the seller changing her mind and rescinding the agreement, she surrendered the sum of Kshs.300,000/= which had been received by them as part of the purchase price and which monies was surrendered the Respondent herein. Apparently, the Respondent utilized the monies for his own use and when the Appellant came calling, he was unable to release the total sum and only made payment to some extent and that the parties entered into the ‘’I owe You’’ arrangement which was to run for a period of 8 months and to expire on 4/3/2024. The claim therefore was based solely on the said agreement 63. The Appellant has taken great issue with the trial court for not granting him the prayers sought in the plaint yet the Respondent’s documents and pleadings confirmed that he admitted the claims. In his own evidence before court both in the examination in chief and in cross examination, the Plaintiff admitted that as to date he has received Kshs.126,500/= from the Defendant. It is noted that upon the expiry of the 8 month period, the Appellant kept on receiving money pursuant to the agreement with the Respondent. There is no evidence that the parties made a further agreement or a renewal of terms. That being the position, the action of the Appellant in accepting and continuing to receive money in respect of the I OWE YOU AGREEMENT even after the 4th March 2024, he thereby waived his right to claim under the same agreement. In Nairobi Civil Suit No. 287 Of 2013 **Taj Mall Limited - V- Hellen Njambi Mbugua**, the court while citing with approval other decided case on the issue of waiver stated as follows; **“By accepting the late payments without raising the issue of interest, the plaintiff waived his right to interest. In holding this view, I wish to rely on the case of Sifa Steel Rolling Mills Ltd vs. Jubilee Insurance Company Limited in which the court held; “Waiver can be express or implied, disputes hardly arise where it is express. They however do where it is implied. An implied waiver may arise where a person has pursued such a course of conduct as to evidence an intention to waive this right or where his conduct is inconsistent with any other intention than to waive it. It may be inferred from the conduct or acts putting one off guard and leading one to believe that the other has waived his right.”** 64. The Appellant vide his testimony confirmed having received the sum of Kshs.126,500/= from the Respondent. This includes Kshs.70,000/= paid to him in May 2024, about one month after the filing of this suit. However, in light of the Appellant’s own pleadings and claim for Kshs.122,000/=, there would appear to be no outstanding balance. If the claim was for Kshs 122,000/, then it was obvious that the same had been settled as per the sums admitted to have been paid to the Appellant. This thus explains the learned trial magistrate’s finding that the Appellant had been paid an excess of Kshs.4,500/=. The Appellant in his evidence appeared to take issue with the Respondent who roped in other persons who went ahead to make payments to the Appellant yet they were not made witnesses. Iam surprised by the Appellant’s concerns since what he required was the repayment of his monies. He confirms receiving the sums from different number but there is no evidence that he ever returned back the money to the unknown sender. If the Respondent opted to get assistance from his friends and relatives, then that should not be an issue of concern to the Appellant. 65. It is noted that the Appellant has claimed a raft of several prayers and that he has raised issues as to why the trial court did not bother to grant. Starting with the claim that the admissions were not considered, I find that it was the duty of the Appellant to move the court and seek for entry of judgement against the Respondent. There is no evidence that he did that. The other claims relate to the sale agreement dated 19th October 2022 between the Appellant and Mary Otieno Obai in which the Respondent herein was not a party thereto. If the Appellant has any claim resulting from the breach and/or the cancellation of the Sale Agreement, then the claim should be against the seller and not the Respondent whose role ended the moment the seller and buyer had gotten into contact over the land deal. The Appellant appeared to have been angered by the conduct of the Respondent in the transaction due to the fact that the Respondent was discovered not to be an advocate of the High Court of Kenya and that he was but a masquerader working under the firm of Odhiambo Onyango Advocate. 66. It is noted that the Appellant seeks for punishment and imposition of a fine as against the Respondent for masquerading as a lawyer. However, the nature of the claim and proceedings before the trial court were not criminal in nature. The Appellant, being an Advocate himself could jhave engaged the intervention of the Law Society of Kenya through its respective branches and committees to deal with the issue of the Respondent’s conduct as well as seek the help of the relevant law enforcement agencies to handle the allegations of criminal behaviour on the part of the Respondent once the formal complaint was lodged. 67. An analysis of the entire evidence and the submissions, it is my finding that the Appellant failed to prove his claim as against the Respondent on a balance of probabilities. Consequently, the appeal is devoid of any merit and is dismissed. Given the circumstances of this case, I order that each party to bear their own costs. **Dated and delivered at Siaya this 2nd day of July 2026** **D.KEMEI** **JUDGE** **In the presence of:** 1. N/A Omondi..........................................for Appellant 2. Ochido for Odera....................................for Respondent 3. Maurine..................................................Court Assistant