[2008] KEHC 2426 (KLR)
The court found that the appellant received the loan from the respondent and agreed to repay it with interest. The appellant's claim that he repaid the loan directly to Vintage Management was not substantiated by credible evidence. The appellant's own witness could not confirm repayment, and the evidence showed that...
Source-derived case information.
- Citation
- [2008] KEHC 2426 (KLR)
- Parties
- Appellant: Shadrack Gicheru Wairimu; Respondent: Lucy Wanja Kinyua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 43 of 2007
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- GG Okwengu
- Legal Topics
- Friendly Loans, Burden of Proof, Evidence Evaluation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shadrack Gicheru Wairimu
Appellant
Lucy Wanja Kinyua
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant was indebted to the respondent for the sum advanced as a friendly loan.
- 2 Whether the appellant had repaid the loan amount directly to Vintage Management, thereby extinguishing his liability to the respondent.
- 3 Whether the trial magistrate erred in finding for the respondent based on the evidence adduced.
Ratio Decidendi
The court found that the appellant received the loan from the respondent and agreed to repay it with interest. The appellant's claim that he repaid the loan directly to Vintage Management was not substantiated by credible evidence. The appellant's own witness could not confirm repayment, and the evidence showed that only Kshs.7,000 had been repaid, leaving a balance due. The trial magistrate's findings were supported by the evidence, and the appellant failed to discharge the burden of proof required to establish repayment or extinguishment of the debt. Therefore, the appeal lacked merit and was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 43 of 2007
SHADRACK GICHERU WAIRIMU………...….APPELLANT
VERSUS
LUCY WANJA KINYUA………………………RESPONDENT
J U D G M E N T
Shadrack Gicheru Wairimu (hereinafter referred to as the appellant) is dissatisfied with the judgment delivered by Ms. Mutuku Resident Magistrate on the 29th December, 2006 in Othaya RMCC No. 35 of 2006. He has filed a memorandum of appeal raising 13 grounds urging the court to quash the judgment of the lower court.
The suit in the lower court was initiated by Lucy Wanja Kinyua (hereinafter referred to as the respondent), who claimed Kshs.28,000 from the appellant, being a friendly loan advanced to the appellant at his request. The appellant filed a defence denying the respondent’s claim, contending that the loan given to him by the respondent, was from a sum of money advanced to the respondent by Vintage Management, and that since the respondent failed to repay the money to Vintage Management, the appellant directly repaid the loan to Vintage Management and was therefore no longer indebted to the respondent.
During the hearing of the suit in the lower court, the respondent testified that she obtained a sum of Kshs.50,000/= from Vintage Management, she then gave a sum of Kshs.25,000/= to one Mwai who gave the money to the appellant. It was later agreed that the appellant would repay the money to the respondent with interest of Kshs.3,000/= which was to be repaid to the group. The appellant did not however repay the money. The appellant promised to repay the money to Vintage Management. However, when the respondent applied for a loan, she could not be given as the appellant had only paid 7,000/=.
In his evidence the appellant admitted having received the money from the respondent, but claimed that Vintage Management claimed the money directly from him as the respondent failed to repay it. The appellant testified that he paid the money to Vintage Management and was therefore not indebted to the respondent. The appellant called one witness Godfrey Mwai Kingori. The witness explained that through his intervention, the respondent agreed to lend the appellant Kshs.28,000/= which the respondent had been advanced by Vintage Management. The witness claimed that he thought the appellant repaid the money but later learnt that the appellant had not repaid the money.
In her judgment, the trial magistrate found that the loan between the respondent and the appellant was well documented. She further found that the respondent was unable to get a loan from Vintage Management, or refund of her savings, because she was still deemed to be owing the amount which she loaned to the appellant. The trial magistrate found that the appellant had only repaid Kshs.7,000/= and therefore, there was a sum of Kshs.21,000/= due and owing. The trial magistrate therefore gave judgment in favour of the respondent.
Having carefully reconsidered and evaluated the evidence which was adduced in the lower court, I am satisfied that there was clear evidence that the appellant received the loan of Kshs.25,000/= from the respondent and that it was agreed that that money would be refunded with interest of Kshs.3,000/=. It is also not disputed that this money was an advance to the respondent from Vintage Management, and that the respondent was liable to refund the money to Vintage Management. The appellant’s defence was that he repaid the money directly to Vintage Management. The appellant did not however provide any substantive proof of the payment of the full amount. The appellant’s own witness Godfrey Mwai Kingori, was unable to support the appellant’s allegation that he repaid the money. The witness claimed that he learnt that appellant was repaying the money but he did not reveal the source of his information. He further contradicted that evidence when he again testified that he learnt that the appellant had not repaid the money. In the circumstances, the appellant’s defence was never substantiated and the trial magistrate was right in rejecting the same. Accordingly, I find no merit in this appeal as the respondent’s case was proved to the required standard. Accordingly I dismiss the appeal with costs.
Dated and delivered this 19th day of May, 2008
H. M. OKWENGU
JUDGE