https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7075

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL SMALL CLAIMS APPEAL NO. E101 OF 2025** **VIVIAN SEMO MANKA…………………................... APPELLANT** **-VERSUS-** **JACKSON KIBET TANUI…………...….................RESPONDENT** ***(Being an appeal from the judgment of Hon. WAMAE M. MUINDI (ADJUDICATOR/RM) in Nairobi SCCC no. E17187 of 2024 delivered on 13/3/2025)*** **JUDGMENT** 1. The appellant in this appeal was the claimant in Nairobi SCCC No. E17187 of 2024 where she sued the respondent for recovery of kshs.327,400 for goods carried away by the respondent on 1/9/2024 and also seeking kshs.142,000 in respect of an unpaid loan. 2. The respondent filed a response to the appellants claim and stated that the goods that were carted away belonged to him and he was entitled to them. 3. The respondent presented a lease agreement dated 3/10/2022 which indicated he was the lessee of the property. 4. The respondent further said that he appellant refused to vacate the house and upon his departure, the landlord did not refund the security rent deposit and that the appellant entered into a separate lease with the landlord. 5. The trial court found that there was insufficient evidence to support the appellant’s claim and that the lease agreement which was entered into after the goods were removed was insufficient to prove that the goods belonged to the appellant. 6. The trial court also found that the appellant failed to prove the existence of the loan of ksh.142,000 and dismissed the appellant’s claim. 7. The appellant was also to pay costs of the suit assessed at kshs.46,000/=. 8. The appellant has appealed against the said judgment on the following grounds; 9. ***THAT the Learned Adjudicator erred in law by failing to give legal effect to the Respondent's express admission of indebtedness of KES 142,000 as evidenced his witness statement and WhatsApp messages, contrary to Section 17 of the Evidence Act.*** 10. ***THAT the Learned Adjudicator erred in law and fact by disregarding WhatsApp communication in which the Respondent admitted owing the Appellant money failed to apply Section 106B of the Evidence Act (Cap. 80, Laws of Kenya), which permits the admission of electronic evidence where relevant and properly tendered.*** 11. ***THAT the Learned Adjudicator misdirected herself by shifting the burden of recovery to the Appellant, suggesting she ought to recover the debt from the landlord despite the Respondent's undisputed liability and in the absence of any legal assignment of debt or contractual relationship between the Appellant and the landlord.*** 12. ***THAT the Learned Adjudicator erred in law and fact by accepting the Respondent's assertion that his rent deposit of KES 120,000 should offset the KES 142,000 debt to the Appellant, despite the lack of any agreement, assignment, or documentary basis to justify such a setoff.*** 13. ***THAT the Learned Adjudicator erred in law by basing the decision on the Respondent's lease agreement, yet failed to consider that the Appellant was not a party to that lease, and that the lease could not be used to extinguish or transfer a personal debt unrelated to the tenancy.*** 14. ***THAT the Learned Adjudicator erred in law by failing to apply the evidentiary burden of proof under Sections 107-109 of the Evidence Act, in accepting the Respondent's bare claim of ownership of household goods without requiring him produce any proof of purchase or ownership.*** 15. ***THAT the Learned Adjudicator erred in fact and in law by disregarding the Appellant's documented evidence (including purchase records and the Respondent's own acknowledgment) proving that the Appellant was the rightful owner of the household goods taken by the Respondent.*** 16. ***THAT the Learned Adjudicator erred in law and in fact by failing to consider Respondent's express admission that he took possession of the Appellant's household goods and acknowledged that the Appellant had purchased them, which alone warranted a finding in favour of the Appellant's ownership and entitlement to recovery or compensation.*** 17. ***THAT the Learned Adjudicator erred in law by relying on the Respondent's lease agreement to justify his access to and removal of goods from the premises, despite clear evidence that he had ceased paying rent at least three months prior to re- entry, and therefore had no lawful right of possession or entry at the material time.*** 18. The parties filed written submissions in the appeal as follows; The Appellant submitted that her appeal is against the Small Claims Court judgment which dismissed her claim against the Respondent, Jackson Kibet Tanui, and awarded him costs. 19. The dispute was on two issues namely; an outstanding loan balance of Kshs. 142,000/- from an original loan of Kshs. 450,000/-, and the unlawful removal of the Appellant's household goods valued at Kshs. 327,400/-. 20. The Appellant contends that the trial court committed numerous errors of law and fact, and failed to provide reasons for its judgment in violation of statutory requirements. 21. Regarding the financial claim, the Appellant argues that the Respondent expressly admitted his indebtedness in both his witness statement and through WhatsApp messages. 22. It is argued that the lower court erred by completely ignoring these admissions, which are relevant and binding under Section 17 of the Evidence Act, and by disregarding validly tendered electronic evidence that complied with statutory requirements. 23. Furthermore, the Appellant challenges the lower court's acceptance of the Respondent’s defence that she should recover the debt from his landlady via a rent deposit refund, or that his Kshs. 120,000/- deposit could offset the debt. 24. Invoking the doctrine of privity of contract and citing relevant case law, the Appellant asserts that she was a stranger to the Respondent's former lease agreement. 25. She notes that she was actually the lawful tenant under her own separate contract at the material time, and therefore, any tenancy issues between the Respondent and the landlord could not legally diminish or extinguish his personal debt to her. 26. On the issue of the household goods, the Appellant maintains that the trial court misapplied the burden of proof. 27. Although she produced purchase receipts in her name, which established a statutory presumption of ownership, the court accepted the Respondent's bare assertions of ownership without requiring any documentary proof from him. 28. The Appellant points out that the Respondent had openly admitted to taking the goods and acknowledged that the receipts bore her name, meaning the court was legally bound to find in her favor on this point. 29. Additionally, because the Appellant held a valid tenancy agreement and was paying rent, the Respondent had no subsisting tenancy rights and no lawful basis to enter the premises. 30. The Appellant argues that the lower court erred significantly by treating his unauthorized access and removal of her goods as lawful. 31. In conclusion, the Appellant urged the High Court to allow the appeal in its entirety and set aside the Small Claims Court judgment. 32. She seeks an entry of judgment for the outstanding loan balance plus interest, a declaration of ownership regarding the household goods alongside an order for their return or financial compensation, and an award for the costs of the suits in both courts. 33. The Respondent submitted that he seeks the dismissal of an appeal arising from a judgment delivered on March 13, 2025, in the small claims commercial matter. 34. The dispute stems from an irretrievable breakdown of a romantic relationship, during which the Appellant had been invited to live with the Respondent after becoming pregnant. 35. Regarding the Appellant's claim over a sum of 120,000 Kenyan Shillings, the Respondent asserts that this amount represented a rental deposit from the landlady. 36. The Respondent, who held the original lease agreement for the premises, had requested the Appellant to vacate when the relationship deteriorated, but she chose to remain by conduct. 37. The Respondent maintains that the Appellant was fully aware that the deposit would be refunded upon her departure, and notes that she has since moved out and successfully received this refund from the landlady. 38. Furthermore, the Respondent argues that the Appellant failed to produce any receipts or evidence demonstrating that she paid her own deposit upon entering the premises or when she was later issued a new lease. 39. Her subsequent production of a lease agreement is described as an afterthought that does not prove she paid a deposit or owned the property. 40. On the issue of the household goods valued by the Appellant at 327,400 Kenyan Shillings, the Respondent contends that the trial court lacked proper jurisdiction. 41. The Respondent points out that the Appellant reported the matter to the police, resulting in an Occurrence Book entry, but the police ultimately elected not to prosecute. 42. Since the Appellant failed to produce any alleged agreement made at the police station, and because her attempt to introduce extra witness statements after the close of pleadings was rejected, the Respondent argues the court had no basis to proceed with this matter. 43. Substantively, the Respondent denies taking the Appellant's belongings, explaining that he merely removed his own property when he moved out. 44. While the Respondent acknowledges sending money to the Appellant during their relationship to buy household items, he disputes her receipts. 45. The Respondent highlights that several receipts do not bear the Appellant's name, while others list items he does not own or possess, such as a double-decker bed or a receipt from a shoe store. 46. Concluding that the Appellant has failed to prove her claims and is presenting speculative allegations, the Respondent submits that no miscarriage of justice occurred in the lower court. 47. The High Court is urged to find the appeal entirely lacking in merit, dismiss it accordingly, and award the costs of the proceedings to the Respondent. 48. The High Court's appellate jurisdiction over decisions from the Small Claims Court is exclusively governed by Section 38(1) of the Small Claims Court Act. 49. This provision strictly mandates that an appeal to the High Court lies only on matters of law, rendering the findings of fact made by the Adjudicator final and non-reviewable unless they are demonstrably perverse or completely unsupported by the evidence. 50. The issues for determination in this appeal are as follows; 51. ***Whether the learned Adjudicator erred in law by failing to give legal effect to the Respondent's alleged admission of a KES 142,000 debt under Sections 17 and 106B of the Evidence Act,*** 52. ***Whether the trial court misapplied the doctrine of privity of contract by using a tenancy lease agreement to offset or transfer a personal debt, and*** 53. ***Whether the trial court unlawfully shifted and misapplied the evidentiary burden of proof under Sections 107 to 109 of the Evidence Act concerning the ownership and unauthorized removal of the household goods.*** 54. On the first issue of the financial claim, the trial court committed a clear error of law by failing to analyze the admission of indebtedness. 55. Section 17 of the Evidence Act, Cap 80, dictates that admissions are relevant and binding against the party who makes them. 56. Furthermore, the modern legal threshold for electronic records, as detailed under Section 106B of the Evidence Act, permits the court to rely on WhatsApp communication when properly tendered to prove liability. 57. By completely ignoring the Respondent's express acknowledgments of the debt in his own witness statement and text communications, the Adjudicator failed to exercise judicial discretion within established legal principles, which constitutes a reversible error of law. 58. Regarding the tenancy and the debt offset, the trial court heavily misdirected itself on the doctrine of privity of contract. 59. The Appellant was a complete stranger to the initial lease agreement dated October 3, 2022, which existed strictly between the Respondent and the landlord. 60. As settled in the contract law principles applicable in this case, rights and liabilities under a contract cannot be transferred to or enforced against a third party without an express legal assignment. 61. The Adjudicator had no legal or documentary basis to rule that the Respondent's KES 120,000 rent deposit could automatically offset a personal loan owed to the Appellant or that the Appellant should recover her money from the landlord. 62. This attempt to extinguish a personal debt using an unrelated tenancy obligation was an error on a point of law. 63. On the final issue of the household goods valued at KES 327,400, the trial court misapplied the statutory burden of proof under Sections 107, 108, and 109 of the Evidence Act. 64. The Appellant discharged her initial evidential burden by presenting purchase receipts in her name, which raised a legal presumption of ownership. 65. The burden then shifted to the Respondent to introduce evidence to substantiate his claim of ownership. 66. The trial Adjudicator erred in law by accepting the Respondent's bare, uncorroborated assertions of ownership without requiring him to produce any documentary proof or receipts. 67. Additionally, the Respondent's reliance on his old lease to justify entering the premises and carting away items was untenable since he had ceased paying rent and the Appellant was the lawful tenant under a separate contract at the material time. 68. The trial court’s failure to recognize that unauthorized entry and removal of goods constituted an actionable civil wrong, combined with the misapplication of the burden of proof, makes the final judgment legally unsustainable. 69. This appeal has merit, the judgment of the Small Claims Court delivered on March 13, 2025, is hereby set aside in its entirety, and judgment is entered for the Appellant in the sum of Kshs.469,400 plus costs in both the trial court and this appeal. **Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 22nd day of May, 2026.** 1. **N. ONGERI** **JUDGE** **In the presence of:** Mr Kimathi for the Appellant Miss Wambui for the Respondent Chrispine – Court Assistant