https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9339

David v Ndatho (Civil Appeal E046 of 2024) [2026] KEHC 9339 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 9339 (KLR) Republic of Kenya In the High Court at Chuka Civil Appeal E046 of 2024 RL Korir, J June 29, 2026 Between Teresia Muuwe David Appellant and Albert Kinyua Ndatho Respondent (Being and Appeal from a judgement and decree delivered by Hon. T. Wachira (R.M) on 24th October 2024 in Chuka Smal Claims Court Case No. E018 of 2024) Judgment 1.This Appeal arises from the judgment and decree delivered by Hon. T. Wachira (RM) delivered on 3rd December 2024 in Chuka Small Claims Court Case No. E040 of 2024. 2.The Claimant (Appellant herein) sued the Respondent vide the statement of claim dated 30th July 2024 seeking the sum of Kshs. 572,000 and costs of the claim. The Claimant’s claim was that on or about June 2022, the parties entered into an agreement whereupon the Respondent borrowed money from the Claimant promising to repay the sum loaned not later than April 2023. She stated that on diverse dates from 25th June 2022 to 24th December, she deposited a sum of Kshs. 572,000 into the Respondent's personal account at Equity Bank vide his account number 0140101410918 deposited on various dates as follows: -i.Kshs. 200,000ii.Kshs. 110,000iii.Kshs. 97,000iv.Kshs. 60,000v.Kshs. 55,000vi.Kshs. 50,000 3.The Respondent filed a response to the statement of claim stating that he has paid to the Claimant all the sum claimed in the statement of claim. He stated that the Claimant’s Mpesa statement showed a transaction of Kshs. 55,000 she received from the Respondent which the Claimant has included in the claim. That on diverse dates from 15th February 2021 to December 2022 he deposited to the Claimant’s Mpesa a total of Kshs. 456,600 therefore the balance owed was Kshs. 60,400. 4.The matter proceeded for hearing with one witness testifying for the claimant and one witness testifying for the Respondent. Upon conclusion of the hearing, judgment was entered in favour of the Claimant for the sum of Kshs. 68,400 with costs and interest. 5.Aggrieved with the judgment, the Appellant lodged this Appeal on the following grounds as set out in the Memorandum of Appeal dated 27th December 2024: -i.That the learned trial magistrate erred both in law and in principle by applying erroneous principles in computation of monies payable by the Respondent.ii.That the learned trial magistrate both in law and in principle by making a finding that Kshs. 55,000 that was paid by the Respondent to the Appellant was meant for reimbursement of a loan whereas the same was payment for legal services rendered.iii.That the learned trial magistrate erred in law and in fact by observing that the Appellant failed to produce receipts as evidence of legal services rendered in total disregard of Advocate-Client privilege.iv.That the learned trial magistrate misdirected herself by factoring in Kshs. 8,000 during computation of the Appellant’s claim yet she had made a finding that the said Kshs. 8,000 did not form part of the claim.v.That the learned trial magistrate erred in law and in fact in disregarding the Appellant’s statement of claim for Kshs. 572,000 being the amount of money due and owing to the Appellant.vi.That the learned trial magistrate failed to apply the correct and/or appreciate the law/principles governing contracts.vii.That the learned trial magistrate erred in law and in fact in wholly disregarding the evidence adduced by the Appellant herein. 6.The Appellant prayed that the appeal be allowed with costs and the trial court’s judgment be set aside. 7.The Appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 19th June 2025. The Appellant submitted by combining the grounds of appeal as issues for determination. Grounds one, two and four challenge the trial court’s finding in the sums owed. Ground three challenges the trial court’s finding in regard to the evidence that ought to have been adduced. Grounds five and seven equally challenge evidence and the sum owed while ground six challenges the trial court’s to appreciation of the principles governing contracts. 8.The Respondent did not file his written submissions and despite service did not participate in the Appeal. 9.I have carefully considered the Record of Appeal, the judgment of the trial court, the grounds of appeal and the submissions filed by the Appellant. The seven grounds of Appeal crystallize into the following issues for determination: -i.Whether the trial court erred in its computation of the amount due and owing from the Respondent to the Appellant;ii.Whether the trial court erred in its evaluation of the evidence relating to the alleged legal fees and the sum of Kshs. 55,000;iii.Whether the Appellant proved her claim on a balance of probabilities so as to warrant the reliefs sought. 10.In respect to grounds 1,2 and 4, the Appellant submitted that she had produced mpesa and bank statements as evidence that she had send the monies to the Respondent as covenanted. That the trial court erred in holding that she had deposited only Kshs. 517,000 despite the fact that the statements produced were not challenged. 11.The Appellant submitted that the Mpesa statement produced by the Respondent from 1st January 2021 to 31st December 2022 are for monies transacted before the claim arose and do not form part of the contract between the parties. That the computation by the trial court purported to make a contract for the parties instead of giving effect to the parties’ severable contracts. 12.The Appellant also submitted that the trial court erred by observing that she failed to produce receipts as evidence of legal services rendered to the Respondent in total disregard of Advocate-Client privilege. That the privilege can only be waived by the client and not the advocate. To buttress her argument, she relied on the case of Manani Lilian & Mwetich Co. Advocates v Veronica Sum [2022] KEHC 2132 KLR where the court held that the advocate-client privilege can only be waived by the client and not the advocate since the privilege belongs to the client. 13.It was further submitted that the Appellant had proved her case according to the standard in law that the amount owed was Kshs. 572,000. 14.The Appellant also submitted that the trial court failed to apply the correct principles governing contracts. That having established that there was a valid, enforceable contract with contractual obligations between the Respondent and the Appellant, it was the trial court’s duty to establish which party had breached the contract. In support of this argument, the Appellant relied on the case of Feba Radio (Kenya) Limited T/A Feba Radio v Ikiyu Enterprises Limited [2017] KECA 379 (KLR) where the court cited the decision in Jiwaji v Jiwaji [1968] EA 547 which stated that where there is ambiguity in an agreement it must be construed according to the clear words used by the parties. 15.The law places the burden of proof upon the party who asserts a fact. Sections 107, 108 and 109 of the Evidence Act, Cap 80 Laws of Kenya provide the legal basis of the principle that he who alleges must prove. The Court of Appeal in Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR reiterated that in civil cases, proof is on a balance of probabilities and a party must adduce evidence sufficient to persuade the court that its version is more probable than not. 16.From the record, it is not disputed that the Appellant advanced various sums of money to the Respondent. The Respondent expressly admitted receipt of the monies. His defence before the trial court was not that the money was never received but that substantial repayments had already been made and that only a balance remained outstanding. 17.The Appellant produced bank records showing deposits made into the Respondent's account. The Respondent, on his part, produced Mpesa statements showing transfers made to the Appellant. The central question before the trial court was therefore not whether money changed hands between the parties but whether the payments relied upon by the Respondent constituted repayment of the loan and, if so, to what extent. 18.Upon re-evaluating the evidence, I note that the Respondent's Mpesa statements reflected numerous remittances made to the Appellant during the period between 2021 and 2022. The Appellant's contention is that some of those payments related to legal services rendered and ought not to have been treated as repayments of the loan. However, beyond that assertion, no documentary or other cogent evidence was placed before the trial court to distinguish the alleged legal fees from the loan repayments. 19.While I agree with the Appellant that advocate-client privilege is a protected doctrine under Section 134 of the Evidence Act, the issue before the trial court was not disclosure of privileged communications. I take judicial notice that when disputes arise between advocates and clients concerning fees, advocates do file a bill of costs and that is never considered as breach of privileged information. The question in this case was whether the Appellant had established, by admissible evidence, that the sum of Kshs. 55,000 was paid in respect of legal services and not towards repayment of the debt. The privilege attaching to communications between an advocate and client does not relieve a litigant from the obligation of proving a factual assertion made before the court. 20.The Court of Appeal in Chartered Institute of Arbitrators (Kenya Branch) v Charles Njogu Lofty [2016] eKLR observed that parties are bound by the evidence they place before the court and a court cannot speculate on facts that have not been proved. In the absence of evidence linking the payment of Kshs. 55,000 specifically to professional services, I am unable to fault the trial court for treating the payment as part of the financial transactions between the parties. 21.The Appellant further urged that the trial court improperly considered transactions predating the loan agreement. I have examined the record. The Respondent's case was that repayments were made through several transactions over time. Once evidence of repayment was tendered, the burden shifted to the Appellant to demonstrate that the payments were unrelated to the loan transaction. Section 112 of the Evidence Act places upon a party with special knowledge of a fact the burden of proving that fact. Whether particular payments related to legal fees or other engagements was a matter peculiarly within the Appellant's knowledge. 22.As regards the alleged error in computation, an appellate court will not lightly interfere with findings of fact unless they are based on no evidence, are founded on a misapprehension of the evidence or the trial court acted on wrong principles. This principle was articulated by the Court of Appeal in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and has been consistently applied by superior courts. 23.I have revisited the computation undertaken by the trial court. The Appellant argues that the court erroneously factored in a sum of Kshs. 8,000 after finding that it did not form part of the claim, the ultimate question is whether such error materially affected the final determination. Having reviewed the evidence as a whole, I am satisfied that the trial court undertook an evaluation of both parties' financial records and arrived at a figure it considered proved. The Appellant has not demonstrated, with precision, how the alleged computational error would result in entitlement to the entire claim of Kshs. 572,000. 24.The parties admittedly had a contractual arrangement involving the advancement and repayment of money. Section 3(1) of the Law of Contract Act recognizes the enforceability of contractual obligations. However, the existence of a contract alone does not entitle a claimant to judgment for the entire amount claimed. The claimant must still establish the exact sum outstanding after taking into account any payments made by the debtor. 25.Having independently reconsidered the evidence on record, I find that the Appellant successfully proved that monies were advanced to the Respondent. Equally, the Respondent proved that he made substantial repayments towards the debt. The trial court considered both sets of evidence and entered judgment for the amount it found remained unpaid. 26.I am not persuaded that the learned trial magistrate misdirected herself on the law, ignored material evidence, or arrived at a conclusion unsupported by the record. The Appellant has not demonstrated sufficient grounds upon which this Court may interfere with the exercise of the trial court's findings of fact and applicable law. 27.Consequently, I find that the appeal lacks merit and is dismissed. The judgment and decree in Chuka Small Claims Court Case No. E040 of 2024 delivered on 3rd December 2024 are hereby upheld. 28.The Respondent having not participated in the Appeal is denied costs of the appeal.Orders accordingly, JUDGEMENT DELIVERED, DATED AND SIGNED AT CHUKA THIS 29TH DAY OF JUNE, 2026...........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Ms Wahome for the Appellant and in the absence of the Respondent. Muriuki (Court Assistant.)