https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1196

Ontita v Okembe (Civil Appeal E091 of 2021) [2026] KECA 1196 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1196 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal E091 of 2021 PM Gachoka, WK Korir & L Ndolo, JJA June 26, 2026 Between Siriba Ontita Appellant and Albert Mongare Okembe Respondent (Appeal from the Judgment of the High Court at Eldoret (H.A Omondi, J.) delivered on 9th April 2021 in HCCA No 61 of 2019 Civil Appeal 61 of 2019 ) Judgment 1.The dispute leading to this appeal commenced in the Chief Magistrate’s Court at Eldoret as Civil Suit No. 734 of 2014, pursuant to a plaint dated 16th October 2014, filed by the appellant. In his plaint, the appellant claimed that he had advanced to the respondent a cumulative sum of Kshs. 548,000 between 14th April 2014 and 17th June 2014, out of which only Kshs. 10,000 had been repaid, leaving an outstanding debt of Kshs. 538,000. 2.In response, the respondent filed a defence and counterclaim dated 30th October 2014, denying the appellant’s claim and claiming Kshs. 895,005 said to have been embezzled by the appellant between February and September 2014. According to the respondent, he had employed the appellant in his merchandise shop in the year 2013. He claimed that the appellant, as his employee, received money which he failed to bank but instead converted it into his own use. 3.Upon hearing the parties, the trial court dismissed both the appellant’s claim and the respondent’s counterclaim. The appellant was dissatisfied with the decision and filed an appeal in the High Court. Upon hearing the parties, the High Court, H.A. Omondi, J (as she then was) dismissed the appeal. Aggrieved by the decision of the High Court, the appellant filed the present appeal. In his memorandum of appeal dated 19th May 2021, the appellant faults the first appellate court for rejecting banking slips produced at trial, as proof of the respondent’s indebtedness to the appellant. 4.This being a second appeal, our remit is restricted to examination of matters of law and substantial errors of principle. We can only consider matters of fact if it is shown that the two courts below considered matters that they should not have considered or failed to consider matters that they should have considered or that looking at the decision it is based on no evidence at all. This has been stated in a long chain of authorities. In Kenya Breweries Ltd vs. Odoyo [2010] KECA 498 (KLR) this Court expressed itself as follows:“In a second appeal…we have to resist the temptation of delving into matters of fact. This Court in a second appeal confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.” 5.As to what constitutes a question of law in the context of a second appeal, we are guided by the decision of this Court in Patrick Omondi Opiyo t/a Dallas Pub vs. Shaban Keah & Another [2018] KECA 545 (KLR) where the persuasive English decision in Martin vs. Glyned Distributors Ltd (t/a MBS Fastenings) [1983] I ICR was cited with approval. In the latter case, it was held that a second appellate court ought to accept the findings of fact of the two courts below. It was further held that a second appellate court ought to resist the temptation to treat findings of fact by the two courts below, as holdings of law or of mixed fact and law, unless it is plain that on the available evidence no reasonable tribunal could have reached the conclusion arrived at by the two courts. 6.This appeal was heard virtually on 21st April 2026. Learned counsel, Mr. Momanyi appeared for the appellant with learned counsel, Mr. Mathai appearing for the respondent. The parties relied on their respective written submissions, with a brief oral highlight. 7.We have considered the record of appeal and the submissions filed by the parties. Upon considering the grounds of appeal, the appeal succeeds or falls on the question whether the appellant proved his case to the required standard of proof. The issue that arose for determination in the trial court, which is a factual one, is whether the appellant proved on a balance of probabilities that he lent the respondent a sum of Ksh.538,000.00. 8.Therefore, the appeal turns on the question of burden of proof as provided in sections 107 and 108 of the Evidence Act, which provide 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 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 proceedings lies on that person who would fail if no evidence at all were given on either side. 9.The standard of proof in civil cases is on a balance of probabilities, where the court will elect to believe one side and thereby disbelieve the other. In his submissions dated 17th April 2026, the respondent refers to the persuasive decision in Miller vs. Minister of Pensions [1947] ALL ER, 372 where Lord Denning defined this standard as follows:“…It must carry a degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged but if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally unconvincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 10.We have carefully examined the documents that the appellant produced in evidence. We note that in advancing his case, the appellant relied on banking slips dated 14.4.2014 and 17.6.2014 showing deposits of Ksh.398,000.00 and 150,000.00 respectively, made by him into the respondent’s bank account held at NIC Bank. However, other than the deposit slips, the appellant did not adduce any evidence to demonstrate that these deposits constituted a loan to the respondent. This was disputed by the respondent who alleged that the appellant was his employee in a merchandise shop and that he deposited the money in his capacity as an employee. We note that the respondent had filed a counterclaim, which was dismissed but that is not before us as there was no appeal on it. 11.Having heard both parties and in consideration of their pleadings, evidence and submissions, the trial court dismissed both the appellant’s claim and the respondent’s counterclaim. The appellant was dissatisfied and filed an appeal to the High Court, which equally held that there was no evidence that he had lent money to the respondent. 12.We note from the evidence that while it is not disputed that the appellant made some deposits into the respondent’s bank account, there was no evidence, to show that the money was a loan, or to controvert the evidence of the respondent that the appellant deposited that money in his account in his capacity as an employee. As held by the learned Judge, and we agree with her, it is difficult even on a balance of probabilities to conclude that the money (Kshs. 538,000) deposited by the appellant in the respondent’s account was a loan. The burden to prove that rested on the appellant but he failed to do so. Waving of a bank slip to the court was not enough, considering the fact that there was a rebuttal that the appellant deposited the money as an employee. We have said enough to demonstrate that all the grounds of appeal have no merit. 13.Ultimately, this appeal fails and is dismissed with costs to the respondent. DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF JUNE, 2026.M. GACHOKA C.Arb, FCIArb................................JUDGE OF APPEALW. KORIR................................JUDGE OF APPEALL.M. NDOLO................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR