The appellant(claimant), sued the respondents before the small claims court seeking for judgment in the sum of Kshs. 320,070, from the respondents. The appellant’s case as pleaded in the statement of claim dated 14.2.24, was that the claim arose from a series of friendly loans advanced to the respondents between 4.3.2022 and 5.9.2023. The appellant’s case was that the 1 st respondent initially requested for a loan of Kshs. 6500, which was to be repaid at a later date. Subsequently, between 4.3.22 and 28.7.23, the 1 st respondent made repeated requests for additional advances all of which were disbursed through the appellant’s M-Pesa account. Additionally, from 5.6.2023 to 5.9.23, the 2 nd respondent, being a spouse of the 1 st respondent, similarly requested and received financial advances amounting to Kshs. 111,750, which the appellant contends remains unpaid to date. That the 1 st respondent owes him Kshs 208,320, while the 2 nd respondent owes Kshs 11,750.
The respondents testified and called 3 witnesses. The respondents did not deny receipt of the money from the appellant but their contention was that there was no expectation of reimbursement. The 1 st respondent testified that the appellant had volunteered to be a chair and sponsor for Nyansara Choir and thereafter sent money to purchase various items for the choir including computer, TV and hoofer. Further that the appellant also sent money on various occasions for his personal work which the respondent had volunteered to help with. The 2 nd respondent in her evidence stated that the money sent to her was for the appellant’s farm work and for sponsoring Nyansara Church Choir. That in other occasions, she was sent money as a token of appreciation for assisting the appellant in his farm. The respondents’ witness, Sabina Kerubo Kamu, testified that she was a secretary of Nyansara Catholic Church choir where the respondents are members. Her evidence is that she witnessed the appellant their church and announce that he had brought Kshs. 111,000 for purchase of computer and TV for the choir as he had earlier promised. That it was not unusual for the appellant to send contributions to the choir through the 1 st respondent’s M-Pesa account. That the appellant even paid for a parcel of land with a promise to carve out a portion for the church. That she saw the 2 nd respondent manage the appellant’s farm and was occasionally invited to assist. That the appellant used to pay for the work through the 2 nd respondent’s M-Pesa account.
The respondent’s witness, Wilfred Ntenga Amaya, testified that he was the chairperson of Nyansara Catholic Church Choir. He corroborated the evidence of Sabina Kerubo Kamu on how the appellant undertook to assist the church choir in the presence of the congregation. That the appellant agreed with the choir members over a land transaction. Elijah Otara Mokua, testified that the appellant sent Kshs. 10,000 to him as contribution for a fundraiser in respect to his child’s school fees. The money was sent through the 1 st respondent.
The learned magistrate considered the evidence before her and found the appellant’s case not proved. The same was dismissed. Aggrieved by the said judgment, the appellant appealed to this court raising five grounds of appeal but which can be summarized as follows:
i) That the learned magistrate erred in law in holding that documentary evidence is a pre-requisite to establish existence of a contract
ii) That the learned magistrate erred in law in failing to hold that the respondents did not adduce evidence to support their allegations that the sums claimed by the appellant was for the benefit of a third party and the appellant himself
The appellant submitted that the existence of an oral contract was clearly inferable from the conduct of the parties. That the appellant had presented M-Pesa statements in support of his case. The appellant submitted that it was illogical for the trial court to demand proof of documentary evidence when the appellant had pleaded that the agreement was verbal. The appellant’s submission was that the judgment was against the weight of the evidence.
The respondents on the other hand maintained that the learned magistrate correctly found that the appellant’s case had not been proved as required. The respondent’s submission was that the appellant failed to establish the existence of elements of a contract.
DETERMINATION
This court has a duty to reevaluate and reanalyze the evidence presented before the trial court and reach its own conclusion. The court must however bear in mind that unlike the trial court, it does not have the benefit of watching the demeanor of the witnesses during their testimony.
This appeal turns on whether there was a contract between the appellant and the respondents in which the latter were to refund monies lent to them by the former.
It is trite law that a contract may be written, oral or implied by conduct of the parties. Regardless of the form, a party seeking to establish the existence of a contract must demonstrate the essential elements of offer, acceptance and consideration. It was therefore incumbent upon the appellant to present evidence on a balance of probabilities that there existed an oral loan advancement contract between himself and the respondents and that the respondents were under an obligation to refund back monies advanced to them. The legal and evidential burden rested with the appellant and the evidential burden could only shift if the appellant adduced evidence which would require rebuttal.
As regards the shifting nature of the burden of proof, the court in Midland Hotel v Kioko (2024) KEHC 9709 KLR held as follows:
“Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and remains constant through a trial with the plaintiff, however, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.”
The appellant’s case was that there was an oral contract that monies advanced to the respondents would be refunded. Unfortunately, as regards the issue of refund, all that he presented before the court was his word against the words of not only the two respondents but also that of three other witnesses. The respondents’ case, which in my assessment remained unimpeached, is that though they received money from the appellant, the same was not a loan to be refunded. The same was not only for the benefit of Nyansara Catholic Church Choir (a third party), but also for the respondents’ benefit for work done for the appellant and further that it was for contribution to a fundraiser as narrated by Elijah Otara Mokua. The oral evidence of the respondents and their witnesses alongside the documentary evidence presented, show that there was no intention whatsoever that any money advanced to the respondents by the appellant was to be refunded. This can be discerned from the conduct of the appellant who reportedly announced before a congregation that he was contributing to Nyansara Church Choir.
In the case of Kobo 360 Limited v Chosen Logistics Ltd (2025) KEHC (KLR) the court held:
“…In such cases involving implied contracts, the conduct of the parties takes a heightened significance. The courts are enjoined to adopt an objective approach in determining whether a contract exists. The court of appeal in the case of William Muthee Muthami v Bank of Baroda (2014) eKLR observed that:
“In the law of contracts, the aggrieved party to an agreement must in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the party in breach.”
While it is not disputed that the appellant advanced money to the respondents, the act of advancing money does not automatically prove an enforceable contract of refund. The burden of proving the intent of the transfer of money to the respondents lied with the appellant. He has failed to discharge that burden. There is cogent and credible evidence on record showing that the appellant and the respondents were parties who had a social relationship in form of membership to a church choir in respect to which fundraising was occasionally done and the appellant’s contribution was channeled through the respondents.
I therefore agree with the trial court that there was absolutely no evidence that the respondents were to repay money advanced from the appellant. Upshot of my finding is that the appeal herein lacks merit and the same is dismissed.
I have considered the previous relationship between the parties and the circumstances under which the facts giving rise to this case arose, I make no order as to costs.
DATED, SIGNED AND DELIVERED THIS 20 th JULY 2026
D.O. ONYANGO
JUDGE
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The respondents testified and called 3 witnesses. The respondents did not deny receipt of the money from the appellant but their contention was that there was no expectation of reimbursement. The 1 st respondent testified that the appellant had volunteered to be a chair and sponsor for Nyansara Choir and thereafter sent money to purchase various items for the choir including computer, TV and hoofer. Further that the appellant also sent money on various occasions for his personal work which the respondent had volunteered to help with. The 2 nd respondent in her evidence stated that the money sent to her was for the appellant’s farm work and for sponsoring Nyansara Church Choir. That in other occasions, she was sent money as a token of appreciation for assisting the appellant in his farm. The respondents’ witness, Sabina Kerubo Kamu, testified that she was a secretary of Nyansara Catholic Church choir where the respondents are members. Her evidence is that she witnessed the appellant their church and announce that he had brought Kshs. 111,000 for purchase of computer and TV for the choir as he had earlier promised. That it was not unusual for the appellant to send contributions to the choir through the 1 st respondent’s M-Pesa account. That the appellant even paid for a parcel of land with a promise to carve out a portion for the church. That she saw the 2 nd respondent manage the appellant’s farm and was occasionally invited to assist. That the appellant used to pay for the work through the 2 nd respondent’s M-Pesa account.
The respondent’s witness, Wilfred Ntenga Amaya, testified that he was the chairperson of Nyansara Catholic Church Choir. He corroborated the evidence of Sabina Kerubo Kamu on how the appellant undertook to assist the church choir in the presence of the congregation. That the appellant agreed with the choir members over a land transaction. Elijah Otara Mokua, testified that the appellant sent Kshs. 10,000 to him as contribution for a fundraiser in respect to his child’s school fees. The money was sent through the 1 st respondent.
The learned magistrate considered the evidence before her and found the appellant’s case not proved. The same was dismissed. Aggrieved by the said judgment, the appellant appealed to this court raising five grounds of appeal but which can be summarized as follows:
i) That the learned magistrate erred in law in holding that documentary evidence is a pre-requisite to establish existence of a contract
ii) That the learned magistrate erred in law in failing to hold that the respondents did not adduce evidence to support their allegations that the sums claimed by the appellant was for the benefit of a third party and the appellant himself
The appellant submitted that the existence of an oral contract was clearly inferable from the conduct of the parties. That the appellant had presented M-Pesa statements in support of his case. The appellant submitted that it was illogical for the trial court to demand proof of documentary evidence when the appellant had pleaded that the agreement was verbal. The appellant’s submission was that the judgment was against the weight of the evidence.
The respondents on the other hand maintained that the learned magistrate correctly found that the appellant’s case had not been proved as required. The respondent’s submission was that the appellant failed to establish the existence of elements of a contract.
DETERMINATION
This court has a duty to reevaluate and reanalyze the evidence presented before the trial court and reach its own conclusion. The court must however bear in mind that unlike the trial court, it does not have the benefit of watching the demeanor of the witnesses during their testimony.
This appeal turns on whether there was a contract between the appellant and the respondents in which the latter were to refund monies lent to them by the former.
It is trite law that a contract may be written, oral or implied by conduct of the parties. Regardless of the form, a party seeking to establish the existence of a contract must demonstrate the essential elements of offer, acceptance and consideration. It was therefore incumbent upon the appellant to present evidence on a balance of probabilities that there existed an oral loan advancement contract between himself and the respondents and that the respondents were under an obligation to refund back monies advanced to them. The legal and evidential burden rested with the appellant and the evidential burden could only shift if the appellant adduced evidence which would require rebuttal.
As regards the shifting nature of the burden of proof, the court in Midland Hotel v Kioko (2024) KEHC 9709 KLR held as follows:
“Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and remains constant through a trial with the plaintiff, however, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.”
The appellant’s case was that there was an oral contract that monies advanced to the respondents would be refunded. Unfortunately, as regards the issue of refund, all that he presented before the court was his word against the words of not only the two respondents but also that of three other witnesses. The respondents’ case, which in my assessment remained unimpeached, is that though they received money from the appellant, the same was not a loan to be refunded. The same was not only for the benefit of Nyansara Catholic Church Choir (a third party), but also for the respondents’ benefit for work done for the appellant and further that it was for contribution to a fundraiser as narrated by Elijah Otara Mokua. The oral evidence of the respondents and their witnesses alongside the documentary evidence presented, show that there was no intention whatsoever that any money advanced to the respondents by the appellant was to be refunded. This can be discerned from the conduct of the appellant who reportedly announced before a congregation that he was contributing to Nyansara Church Choir.
In the case of Kobo 360 Limited v Chosen Logistics Ltd (2025) KEHC (KLR) the court held:
“…In such cases involving implied contracts, the conduct of the parties takes a heightened significance. The courts are enjoined to adopt an objective approach in determining whether a contract exists. The court of appeal in the case of William Muthee Muthami v Bank of Baroda (2014) eKLR observed that:
“In the law of contracts, the aggrieved party to an agreement must in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the party in breach.”
While it is not disputed that the appellant advanced money to the respondents, the act of advancing money does not automatically prove an enforceable contract of refund. The burden of proving the intent of the transfer of money to the respondents lied with the appellant. He has failed to discharge that burden. There is cogent and credible evidence on record showing that the appellant and the respondents were parties who had a social relationship in form of membership to a church choir in respect to which fundraising was occasionally done and the appellant’s contribution was channeled through the respondents.
I therefore agree with the trial court that there was absolutely no evidence that the respondents were to repay money advanced from the appellant. Upshot of my finding is that the appeal herein lacks merit and the same is dismissed.
I have considered the previous relationship between the parties and the circumstances under which the facts giving rise to this case arose, I make no order as to costs.
DATED, SIGNED AND DELIVERED THIS 20 th JULY 2026
D.O. ONYANGO
JUDGE
2