(Being an appeal from the judgment of Hon. M. Kinyanjui, adjudicator dated 5 th March 2024)
JUDGMENT
The appellant (claimant before the lower court) lodged a claim for recovery of Kshs. 988,000 being monies advanced to the respondent. The respondent filed a response to the statement of claim, a counter claim and set-off dated 18.12.23.
The appellant’s (claimant’s) case before the adjudicator was that on or around August 2021, he entered into a joint agreement with the respondent for importation of pharmaceutical products. That the appellant advanced to the respondent a sum of Kshs. 1,800,000 with 50% monthly interest for the importation of the first batch of the agreed products. The appellant had also stated that they had agreed on a monthly repayment plan, however, in breach of the contract, the products were not delivered and the payment plan was not honoured. The appellant’s case is that he was paid a sum of Kshs. 863,000 leaving a balance of 988,000 unpaid.
The respondent on his part denied that the parties had any agreement over a joint venture as alleged by the appellant. He however admitted receipt of Kshs. 1,200,000 on behalf of a third party and that he took it upon himself to pay. That he paid a total of Kshs. 863,000 and he was willing to pay the balance. The respondent filed a counter claim and set-off. He claimed a sum of Kshs. 400,000 for costs of air tickets while alleging that the appellant had lodged a malicious complaint against him at JKIA Police Station, which report led to his detention as a result of which he lost Kshs. 400,000 in air ticket expenses. He claimed a sum of Kshs. 163,000 by way of set-off.
The learned adjudicator upon considering the evidence entered judgment for the appellant in the sum of Kshs. 237,000. The decision prompted the appeal. The appeal was disposed of by way of written submissions. Only the appellant filed submissions. None was filed by respondent.
APPELLANT’S SUBMISSIONS
The appellant submitted that the learned adjudicator disregarded the evidence which shows that the respondent owed the sum claimed. It was submitted that the respondent had issued post-dated cheques which cheques on presentation for payment were dishonoured. That the cheques were prima facie evidence of a promise to pay or acknowledgment of liability. That the documentary evidence presented showed that the respondent owed the appellant Kshs. 750,000.
ANALYSIS AND DETERMINATION
This being a first appeal, I have the onerous task of reexamining and reevaluating the evidence before the adjudicator with a view of coming to my own conclusion while bearing in mind that unlike the trial court, I did not hear the witnesses.
See Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123. I must satisfy myself that the conclusion reached by the trial court was consistent with the evidence on record.
The burden was on the appellant to prove his case on a balance of probabilities as required. Section 107 (1) of Evidence Act states:
“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.”
The burden was on the appellant to adduce cogent evidence that there was an agreement by which he advanced to the respondent a sum of Kshs. 1,800,000, with monthly interest of 50%. The appellant alluded to an agreement for debt settlement dated 17.10.2022. Like the learned adjudicator, I am unable to find the so called debt settlement agreement amongst the appellant’s exhibits. The alleged agreement to pay 50% interest was not proved and the learned adjudicator cannot be faulted for finding as much.
The learned adjudicator found that the appellant gave the respondent Kshs. 1,200,000 out of which 863,000 had been paid leaving a balance of 337,000. That the respondent proved that he sent Kshs. 100,000 to the appellant leaving a balance of Kshs. 237,000. The learned adjudicator also found that the sum of Kshs. 49,000 claimed by the appellant was not proved and I entirely agree with her finding.
As regards the sum of Kshs. 1,800,000 versus 1,200,000 advanced to the respondent, I have carefully examined the evidence on record. In the witness statement of the appellant which was adopted as his evidence in chief, he stated as follows:
“On or around August 2021, we entered an understanding in form of a joint venture in which I agreed and actually gave the sum of Kshs. 1,200,000 with a 50% monthly interest rate thereon to the respondent to finance the import of the first batch of pharmaceutical products.”
If the appellant stated in his evidence in chief that he gave the respondent Kshs. 1,200,000, where does the figure of Kshs. 1,800,000 come from? The learned adjudicator cannot be faulted for finding that only a sum of Kshs. 1,200,000, which the respondent actually committed to refund was the subject sum.
The upshot of the foregoing is that the appeal herein lacks merit. The same is dismissed. I note that the respondent never filed submissions in opposition. I therefore make no order as to costs. Each party shall bear their own costs.
DATED, SIGNED AND DELIVERED via Teams THIS 9 th JULY 2026
D.O. ONYANGO.
JUDGE
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JUDGMENT
The appellant (claimant before the lower court) lodged a claim for recovery of Kshs. 988,000 being monies advanced to the respondent. The respondent filed a response to the statement of claim, a counter claim and set-off dated 18.12.23.
The appellant’s (claimant’s) case before the adjudicator was that on or around August 2021, he entered into a joint agreement with the respondent for importation of pharmaceutical products. That the appellant advanced to the respondent a sum of Kshs. 1,800,000 with 50% monthly interest for the importation of the first batch of the agreed products. The appellant had also stated that they had agreed on a monthly repayment plan, however, in breach of the contract, the products were not delivered and the payment plan was not honoured. The appellant’s case is that he was paid a sum of Kshs. 863,000 leaving a balance of 988,000 unpaid.
The respondent on his part denied that the parties had any agreement over a joint venture as alleged by the appellant. He however admitted receipt of Kshs. 1,200,000 on behalf of a third party and that he took it upon himself to pay. That he paid a total of Kshs. 863,000 and he was willing to pay the balance. The respondent filed a counter claim and set-off. He claimed a sum of Kshs. 400,000 for costs of air tickets while alleging that the appellant had lodged a malicious complaint against him at JKIA Police Station, which report led to his detention as a result of which he lost Kshs. 400,000 in air ticket expenses. He claimed a sum of Kshs. 163,000 by way of set-off.
The learned adjudicator upon considering the evidence entered judgment for the appellant in the sum of Kshs. 237,000. The decision prompted the appeal. The appeal was disposed of by way of written submissions. Only the appellant filed submissions. None was filed by respondent.
APPELLANT’S SUBMISSIONS
The appellant submitted that the learned adjudicator disregarded the evidence which shows that the respondent owed the sum claimed. It was submitted that the respondent had issued post-dated cheques which cheques on presentation for payment were dishonoured. That the cheques were prima facie evidence of a promise to pay or acknowledgment of liability. That the documentary evidence presented showed that the respondent owed the appellant Kshs. 750,000.
ANALYSIS AND DETERMINATION
This being a first appeal, I have the onerous task of reexamining and reevaluating the evidence before the adjudicator with a view of coming to my own conclusion while bearing in mind that unlike the trial court, I did not hear the witnesses.
See Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123. I must satisfy myself that the conclusion reached by the trial court was consistent with the evidence on record.
The burden was on the appellant to prove his case on a balance of probabilities as required. Section 107 (1) of Evidence Act states:
“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.”
The burden was on the appellant to adduce cogent evidence that there was an agreement by which he advanced to the respondent a sum of Kshs. 1,800,000, with monthly interest of 50%. The appellant alluded to an agreement for debt settlement dated 17.10.2022. Like the learned adjudicator, I am unable to find the so called debt settlement agreement amongst the appellant’s exhibits. The alleged agreement to pay 50% interest was not proved and the learned adjudicator cannot be faulted for finding as much.
The learned adjudicator found that the appellant gave the respondent Kshs. 1,200,000 out of which 863,000 had been paid leaving a balance of 337,000. That the respondent proved that he sent Kshs. 100,000 to the appellant leaving a balance of Kshs. 237,000. The learned adjudicator also found that the sum of Kshs. 49,000 claimed by the appellant was not proved and I entirely agree with her finding.
As regards the sum of Kshs. 1,800,000 versus 1,200,000 advanced to the respondent, I have carefully examined the evidence on record. In the witness statement of the appellant which was adopted as his evidence in chief, he stated as follows:
“On or around August 2021, we entered an understanding in form of a joint venture in which I agreed and actually gave the sum of Kshs. 1,200,000 with a 50% monthly interest rate thereon to the respondent to finance the import of the first batch of pharmaceutical products.”
If the appellant stated in his evidence in chief that he gave the respondent Kshs. 1,200,000, where does the figure of Kshs. 1,800,000 come from? The learned adjudicator cannot be faulted for finding that only a sum of Kshs. 1,200,000, which the respondent actually committed to refund was the subject sum.
The upshot of the foregoing is that the appeal herein lacks merit. The same is dismissed. I note that the respondent never filed submissions in opposition. I therefore make no order as to costs. Each party shall bear their own costs.
DATED, SIGNED AND DELIVERED via Teams THIS 9 th JULY 2026
D.O. ONYANGO.
JUDGE
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