REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CIVIL APPEAL NO. E066 OF 2023
DOMINIC DANIEL NJOKA…………………………APPELLANT
VERSUS
NANCY WANJIRU MUGO………………………RESPONDENT
(Being an appeal from the judgment and decree of Hon. Cheruto C. Kipkorir, Principal Magistrate, in Kerugoya Magistrate’s Court Civil Suit No. E012 of 2023 delivered on 12/7/2023)
JUDGMENT
1. This appeal through the memorandum dated 31/7/2023 seeks to set aside the decree of the learned trial magistrate issued on 11/8/2023 and arising from a judgment of the trial court dated 12/7/2023. In the judgment the learned trial magistrate dismissed the appellant’s claim against the respondent with no orders for costs. The reason for the dismissal was that the contract the basis of the claim was based on an illegality and the court could not enforce an illegality.
2. The appellant sued the respondent through a plaint dated 16/1/2023 claiming a sum of KShs 124,600/= as due and owing from the respondent. The appellant pleaded that on 9/2/2022 the respondent had approached him that she had been sent by the then Principal Secretary, Interior Ministry, Karanja Kibicho that he “required urgent personnel at the National Intelligence Service and the papers for each person trainee shall be a full sum of KShs 300,000/= and that the papers and/or the goods and/or the postings and/or services and/or approvals as may be necessary will be delivered in full upon the said payment.”
3. The appellant pleaded further that upon the strength of the said narrative and with a view to con and/or defraud and/or cheat fraudulently by way of cheating the respondent obtained KShs 150,000/= which she acknowledged by way of signing and which she agreed she will refund with an interest of 50 per cent which she has not done and the amount is due and owing. The respondent however made some partial payments on various dates being 10/12/2022, KShs10,200/= and on 27/12/2022, KShs 15,200/= and the balance of KShs 124,600/= plus the interest of 50 per cent remains outstanding. The appellant prayed for the outstanding sum together with interest and costs of the suit.
4. The respondent was served with summons to enter appearance and the suit but she did not enter appearance or file defence.
5. The case proceeded for hearing on formal proof on 16/6/2023. The appellant testified and relied on his witness statement as evidence in chief and produced as exhibits documents filed alongside the plaint.
6. After considering the case the learned magistrate in a judgment dated 12/7/2023 found that the suit lacked merit and dismissed it. The learned trial magistrate’s reasoning was, according to the judgment, that there was a government institution which needed personnel and she assumed a job opportunity. In that case, the learned trial magistrate expressed herself that she could not understand why KShs 300,000/= was needed. According to her it seemed that the KShs 150,000/= was a bribe as it was to be paid for what was termed as papers and/or the posting and/or service and/or appropriate as may be necessary. In that case, the learned magistrate found, the law abhors an illegality and parties cannot give and accept a bribe and come to court for enforcement as that is an offence. She found that the same was not enforceable.
7. The appellant was dissatisfied with the judgment and has filed this appeal based on grounds that the learned trial magistrate erred for failing to recognize that the suit was for a liquidated demand for KShs 124,600/= arising from the loan agreement dated 9/2/2022 and not a bribe as found by the court. The grounds though are argumentative and even bringing in issues of evidence that was not available at the trial.
8. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
9. The appellant’s submissions reiterate as indicated in his grounds of appeal that the learned trial magistrate erred in considering the transaction between the appellant and the respondent as a bribe when in fact it was a loan as evidenced by the agreement between the parties.
10. The respondent on her part filed submissions on 5/8/2024. They are handwritten and not signed. She basically narrates her side of the story insisting as found by the learned trial magistrate that the KShs 150,000/= given to her by the appellant was a bribe. Most of her submissions should have been her defence at trial but she never participated so I will not dwell on it.
11. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
12. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the learned trial magistrate was right or wrong in dismissing the suit by the appellant on grounds that it was unenforceable for being based on an illegal contract.
13. In order to appreciate the full purport of that claim, the pleadings and the evidence in support thereof have to be considered together. The learned trial magistrate said in her judgment that she “assumed” that there was a job opportunity in a government institution, the National Intelligence Service and therefore it seemed to her that the KShs 150,000/= was a bribe. The appellant’s averments in paragraphs 3 and 4 are reproduced below in order to appreciate them better.
“On 9th February 2022 the defendant herein approached me that she has been sent by one Karanja Kibicho the then Principal Secretary Interior Ministry that he requires urgent personnel at the national Intelligence service and the papers for each person trainee shall be full sum of Kshs 300,000/= and that the papers and or the goods and or postings and or the services approvals as may be necessary will be delivered in full upon the said payment thereof.
Upon the strength of the said narrative and with view of con and or defraud and or cheat fraudulently by way of cheating the defendant obtained Kshs 150,000/= which she acknowledged by signing an acknowledgement and which amount she agreed she will refund with an interest rate of 50% which is till due and accruing.”
14. He then went on to state the amounts the respondent had refunded and the balance of KShs 124,600/= which he was now claiming together with interest.
15. The appellant then produced as exhibit a written acknowledgment for loan dated 9/2/2022 between him and the respondent where the respondent acknowledged receipt of the KShs 150,000/=. Now, this acknowledgement is quite telling and I also have to produce it herein verbatim in order to appreciate it fully.
“ACKNOWLEDGMENT LOAN
A NANCY WANJIRU MUGO OF ID CARD NO. 25971869 has today the 9th day of February 2022 at 2.15 p.m. o’clock in the afternoon has in good faith, has Received KShs 150,000/= in words KShs LOAN SHS one Hundred and fifty thousand as due Deposit for loan goods, services, papers, approvals as may be fees necessary. and as negotiated loan.”
The balance thereon of KShs 150,000/= in words One Hundred and fifty thousand will be paid upon the full delivery of the vehicle aforesaid goods, services, papers approvals as may be necessary and as negotiated, loan
This acknowledgment is legally loan binding in law and failure to abide dues may Refund the entire aforesaid sum with interest at 50 per cent (the percentage was written in symbol form but this court has written in word because the CTS system will not publish this writing if the symbol is used) within one month from Date (hereof) Date hereof.
Accordingly I have received KShs 150,000/=
from D.D.G. Njoka SIGNED
signed ID 25971869
and ROSE M. NJOKAH
Signed
Witness”
16. The evidence above is what was available to the learned trial magistrate. The existence of that acknowledgment was not contested, the respondent having failed to enter appearance to the suit. It is clear from the acknowledgment that the appellant gave out some KShs 150,000/= to the respondent. However, it is made to appear as though it was a loan but a plain reading of that acknowledgment shows that the word “loan,” wherever it appears, starting from the headline were insertions in the original document. Similarly, the words “and as negotiated loan,” appearing at the end of the first and second paragraphs are clearly insertions into the original document. There are several other insertions which I have been able to pick out and written them in italics such as the word “vehicle”. They stand out as insertions because they distort the flow of the statement into which they are inserted. That does not need an expert in handwriting to decipher. It is clear to anybody reading the text both from the manner it is inserted, with the word “loan” being placed in some instances at the end of the line in each sentence it appears.
17. It follows that the appellant was really struggling to make this acknowledgment appear as if it were a loan when it was not. If it was a loan as claimed by the appellant, what then was the need for the second paragraph that the balance of the money would be paid after full delivery? After full delivery of what? He then inserts the word “vehicle” there to make it appear that the money was to be for delivery of a vehicle and the other things listed there. However, this addition of the word “vehicle” puts that sentence out of consonance with a similar sentence in the first paragraph with the same words but without the word “vehicle.” Without the insertions of the various words, the part of the two sentences which appear in the first and second paragraphs were reading, “… for goods, services, papers, approvals as may be necessary.”
18. The initiative to change the original writing to include the word “loan” all over the document means the appellant was struggling to make what he clearly knew was illegal to appear legal. His ingenuity unfortunately was however clumsily executed leaving blotches all over the document I find that the written acknowledgement, minus those insertions was merely a smokescreen meant to hide the real intent for which it was signed and the money obtained and which I agree with the learned trial magistrate was to further an illegal enterprise of bribery.
19. The fact that the document was changed by inserting more content in it is evident from the appellant’s pleadings where he did not plead that he had advanced a loan to the respondent. It was also in the pleadings that he came out to explain what the money was meant for and thus the learned trial magistrate’s finding that it was to facilitate some bribery for a job opportunity.
20. The position in law, as found by the learned trial court is that a court cannot enforce an illegal contract or a contract based on an illegality especially where the party seeking the aid of the court was a participant and stood to derive a benefit from it. I am guided in this case by the case of Kenya Airways Limited Vs. Satwant Singh Flora [2013] eKLR where the Court of Appeal held thus:
i. No person can claim any right or remedy whatsoever under an illegal transaction in which he/she has participated. The Court is bound to veto the enforcement of a contract once it knows that it is illegal whether that knowledge comes from the statement of the guilty party or from outside.
ii. If the statute prohibits the contract, it is unenforceable whether the parties meant to break the law or not.
iii. No Court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of the contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the Court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality, the Court ought not to assist him.”
iv. No Court ought to enforce an illegal contract where the illegality is brought to its notice and if the person invoking the aid of the Court is himself implicated in the illegality.
v. In order for the doctrine to act as a defence to the claim, there must be illegal performance of the contract by one party to the contract and knowledge that illegal performance and participation in it by the other party to the contact.”
21. The fact that the appellant stood to derive a benefit from the transaction he had with the respondent is evident from the expression in the acknowledgment note that, “The balance thereon of KShs 150,000/= in words One Hundred and fifty thousand will be paid upon the full delivery…” This clearly demonstrates that the appellant was under expectation of receiving some benefit from what the respondent was going to apply the money. In this case, the evidence of the illegality of the transaction between the appellant and the respondent was brought to the fore by the appellant through his own pleadings and confirmed by his evidence of the acknowledgment note which clearly showed that he was trying to hide the illegality by inserting certain words in it which were not there initially. The trial magistrate was therefore right to decline to enforce his claim against the respondent.
22. The appellant’s other ground of appeal is that this was a liquidated claim meaning that it need not have gone for formal proof. That is a mistake on his part. He had pleaded his cause and upon reading the plaint the trial court felt that he needed to substantiate his claim and that is why the matter had to go for formal proof. He was required to prove his claim on a balance of probabilities. In the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, the Court of Appeal held as thus; -
“It is a firmly settled procedure that even where a defendant has not denied the claim by filing of defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.”
23. Therefore, in the present case, the fact that the respondent had not filed a defence to the suit did not absolve the appellant from being called upon to prove his claim.
24. I am satisfied that the learned trial magistrate was right in dismissing the appellant’s claim as not being enforceable by the court. The decision by learned trial magistrate is hereby affirmed.
25. I therefore find the appeal herein to be without merit and dismiss the same with costs to the respondent.
26. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 3rd day of June 2025 in the presence of:
The appellant in person.
The respondent in person.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CIVIL APPEAL NO. E066 OF 2023
DOMINIC DANIEL NJOKA…………………………APPELLANT
VERSUS
NANCY WANJIRU MUGO………………………RESPONDENT
(Being an appeal from the judgment and decree of Hon. Cheruto C. Kipkorir, Principal Magistrate, in Kerugoya Magistrate’s Court Civil Suit No. E012 of 2023 delivered on 12/7/2023)
JUDGMENT
1. This appeal through the memorandum dated 31/7/2023 seeks to set aside the decree of the learned trial magistrate issued on 11/8/2023 and arising from a judgment of the trial court dated 12/7/2023. In the judgment the learned trial magistrate dismissed the appellant’s claim against the respondent with no orders for costs. The reason for the dismissal was that the contract the basis of the claim was based on an illegality and the court could not enforce an illegality.
2. The appellant sued the respondent through a plaint dated 16/1/2023 claiming a sum of KShs 124,600/= as due and owing from the respondent. The appellant pleaded that on 9/2/2022 the respondent had approached him that she had been sent by the then Principal Secretary, Interior Ministry, Karanja Kibicho that he “required urgent personnel at the National Intelligence Service and the papers for each person trainee shall be a full sum of KShs 300,000/= and that the papers and/or the goods and/or the postings and/or services and/or approvals as may be necessary will be delivered in full upon the said payment.”
3. The appellant pleaded further that upon the strength of the said narrative and with a view to con and/or defraud and/or cheat fraudulently by way of cheating the respondent obtained KShs 150,000/= which she acknowledged by way of signing and which she agreed she will refund with an interest of 50 per cent which she has not done and the amount is due and owing. The respondent however made some partial payments on various dates being 10/12/2022, KShs10,200/= and on 27/12/2022, KShs 15,200/= and the balance of KShs 124,600/= plus the interest of 50 per cent remains outstanding. The appellant prayed for the outstanding sum together with interest and costs of the suit.
4. The respondent was served with summons to enter appearance and the suit but she did not enter appearance or file defence.
5. The case proceeded for hearing on formal proof on 16/6/2023. The appellant testified and relied on his witness statement as evidence in chief and produced as exhibits documents filed alongside the plaint.
6. After considering the case the learned magistrate in a judgment dated 12/7/2023 found that the suit lacked merit and dismissed it. The learned trial magistrate’s reasoning was, according to the judgment, that there was a government institution which needed personnel and she assumed a job opportunity. In that case, the learned trial magistrate expressed herself that she could not understand why KShs 300,000/= was needed. According to her it seemed that the KShs 150,000/= was a bribe as it was to be paid for what was termed as papers and/or the posting and/or service and/or appropriate as may be necessary. In that case, the learned magistrate found, the law abhors an illegality and parties cannot give and accept a bribe and come to court for enforcement as that is an offence. She found that the same was not enforceable.
7. The appellant was dissatisfied with the judgment and has filed this appeal based on grounds that the learned trial magistrate erred for failing to recognize that the suit was for a liquidated demand for KShs 124,600/= arising from the loan agreement dated 9/2/2022 and not a bribe as found by the court. The grounds though are argumentative and even bringing in issues of evidence that was not available at the trial.
8. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
9. The appellant’s submissions reiterate as indicated in his grounds of appeal that the learned trial magistrate erred in considering the transaction between the appellant and the respondent as a bribe when in fact it was a loan as evidenced by the agreement between the parties.
10. The respondent on her part filed submissions on 5/8/2024. They are handwritten and not signed. She basically narrates her side of the story insisting as found by the learned trial magistrate that the KShs 150,000/= given to her by the appellant was a bribe. Most of her submissions should have been her defence at trial but she never participated so I will not dwell on it.
11. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
12. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the learned trial magistrate was right or wrong in dismissing the suit by the appellant on grounds that it was unenforceable for being based on an illegal contract.
13. In order to appreciate the full purport of that claim, the pleadings and the evidence in support thereof have to be considered together. The learned trial magistrate said in her judgment that she “assumed” that there was a job opportunity in a government institution, the National Intelligence Service and therefore it seemed to her that the KShs 150,000/= was a bribe. The appellant’s averments in paragraphs 3 and 4 are reproduced below in order to appreciate them better.
“On 9th February 2022 the defendant herein approached me that she has been sent by one Karanja Kibicho the then Principal Secretary Interior Ministry that he requires urgent personnel at the national Intelligence service and the papers for each person trainee shall be full sum of Kshs 300,000/= and that the papers and or the goods and or postings and or the services approvals as may be necessary will be delivered in full upon the said payment thereof.
Upon the strength of the said narrative and with view of con and or defraud and or cheat fraudulently by way of cheating the defendant obtained Kshs 150,000/= which she acknowledged by signing an acknowledgement and which amount she agreed she will refund with an interest rate of 50% which is till due and accruing.”
14. He then went on to state the amounts the respondent had refunded and the balance of KShs 124,600/= which he was now claiming together with interest.
15. The appellant then produced as exhibit a written acknowledgment for loan dated 9/2/2022 between him and the respondent where the respondent acknowledged receipt of the KShs 150,000/=. Now, this acknowledgement is quite telling and I also have to produce it herein verbatim in order to appreciate it fully.
“ACKNOWLEDGMENT LOAN
A NANCY WANJIRU MUGO OF ID CARD NO. 25971869 has today the 9th day of February 2022 at 2.15 p.m. o’clock in the afternoon has in good faith, has Received KShs 150,000/= in words KShs LOAN SHS one Hundred and fifty thousand as due Deposit for loan goods, services, papers, approvals as may be fees necessary. and as negotiated loan.”
The balance thereon of KShs 150,000/= in words One Hundred and fifty thousand will be paid upon the full delivery of the vehicle aforesaid goods, services, papers approvals as may be necessary and as negotiated, loan
This acknowledgment is legally loan binding in law and failure to abide dues may Refund the entire aforesaid sum with interest at 50 per cent (the percentage was written in symbol form but this court has written in word because the CTS system will not publish this writing if the symbol is used) within one month from Date (hereof) Date hereof.
Accordingly I have received KShs 150,000/=
from D.D.G. Njoka SIGNED
signed ID 25971869
and ROSE M. NJOKAH
Signed
Witness”
16. The evidence above is what was available to the learned trial magistrate. The existence of that acknowledgment was not contested, the respondent having failed to enter appearance to the suit. It is clear from the acknowledgment that the appellant gave out some KShs 150,000/= to the respondent. However, it is made to appear as though it was a loan but a plain reading of that acknowledgment shows that the word “loan,” wherever it appears, starting from the headline were insertions in the original document. Similarly, the words “and as negotiated loan,” appearing at the end of the first and second paragraphs are clearly insertions into the original document. There are several other insertions which I have been able to pick out and written them in italics such as the word “vehicle”. They stand out as insertions because they distort the flow of the statement into which they are inserted. That does not need an expert in handwriting to decipher. It is clear to anybody reading the text both from the manner it is inserted, with the word “loan” being placed in some instances at the end of the line in each sentence it appears.
17. It follows that the appellant was really struggling to make this acknowledgment appear as if it were a loan when it was not. If it was a loan as claimed by the appellant, what then was the need for the second paragraph that the balance of the money would be paid after full delivery? After full delivery of what? He then inserts the word “vehicle” there to make it appear that the money was to be for delivery of a vehicle and the other things listed there. However, this addition of the word “vehicle” puts that sentence out of consonance with a similar sentence in the first paragraph with the same words but without the word “vehicle.” Without the insertions of the various words, the part of the two sentences which appear in the first and second paragraphs were reading, “… for goods, services, papers, approvals as may be necessary.”
18. The initiative to change the original writing to include the word “loan” all over the document means the appellant was struggling to make what he clearly knew was illegal to appear legal. His ingenuity unfortunately was however clumsily executed leaving blotches all over the document I find that the written acknowledgement, minus those insertions was merely a smokescreen meant to hide the real intent for which it was signed and the money obtained and which I agree with the learned trial magistrate was to further an illegal enterprise of bribery.
19. The fact that the document was changed by inserting more content in it is evident from the appellant’s pleadings where he did not plead that he had advanced a loan to the respondent. It was also in the pleadings that he came out to explain what the money was meant for and thus the learned trial magistrate’s finding that it was to facilitate some bribery for a job opportunity.
20. The position in law, as found by the learned trial court is that a court cannot enforce an illegal contract or a contract based on an illegality especially where the party seeking the aid of the court was a participant and stood to derive a benefit from it. I am guided in this case by the case of Kenya Airways Limited Vs. Satwant Singh Flora [2013] eKLR where the Court of Appeal held thus:
i. No person can claim any right or remedy whatsoever under an illegal transaction in which he/she has participated. The Court is bound to veto the enforcement of a contract once it knows that it is illegal whether that knowledge comes from the statement of the guilty party or from outside.
ii. If the statute prohibits the contract, it is unenforceable whether the parties meant to break the law or not.
iii. No Court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of the contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the Court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality, the Court ought not to assist him.”
iv. No Court ought to enforce an illegal contract where the illegality is brought to its notice and if the person invoking the aid of the Court is himself implicated in the illegality.
v. In order for the doctrine to act as a defence to the claim, there must be illegal performance of the contract by one party to the contract and knowledge that illegal performance and participation in it by the other party to the contact.”
21. The fact that the appellant stood to derive a benefit from the transaction he had with the respondent is evident from the expression in the acknowledgment note that, “The balance thereon of KShs 150,000/= in words One Hundred and fifty thousand will be paid upon the full delivery…” This clearly demonstrates that the appellant was under expectation of receiving some benefit from what the respondent was going to apply the money. In this case, the evidence of the illegality of the transaction between the appellant and the respondent was brought to the fore by the appellant through his own pleadings and confirmed by his evidence of the acknowledgment note which clearly showed that he was trying to hide the illegality by inserting certain words in it which were not there initially. The trial magistrate was therefore right to decline to enforce his claim against the respondent.
22. The appellant’s other ground of appeal is that this was a liquidated claim meaning that it need not have gone for formal proof. That is a mistake on his part. He had pleaded his cause and upon reading the plaint the trial court felt that he needed to substantiate his claim and that is why the matter had to go for formal proof. He was required to prove his claim on a balance of probabilities. In the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, the Court of Appeal held as thus; -
“It is a firmly settled procedure that even where a defendant has not denied the claim by filing of defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.”
23. Therefore, in the present case, the fact that the respondent had not filed a defence to the suit did not absolve the appellant from being called upon to prove his claim.
24. I am satisfied that the learned trial magistrate was right in dismissing the appellant’s claim as not being enforceable by the court. The decision by learned trial magistrate is hereby affirmed.
25. I therefore find the appeal herein to be without merit and dismiss the same with costs to the respondent.
26. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 3rd day of June 2025 in the presence of:
The appellant in person.
The respondent in person.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE