(Appeal from the Judgment and decree of Hon. Chelangat Patricia Koech, Resident Magistrate/(Adjudicator) delivered on 3 rd October, 2025 in Migori MCCC E110 of 2025.)
JUDGMENT.
Brief facts
1. This appeal arises from the judgment of Migori Resident Magistrate/Adjudicator in SCCC No. E110 of 2025 whereby the trial court allowed the Respondent’s suit against the Appellant, for the sum of Kshs. 722,550.00 as prayed in the Statement of Claim.
2. The Respondents pleaded that on various dates from 11 th June, 2011 to 13 th January, 2024 the Appellant sold parcels of land emanating from land parcel No. SUNA WEST/WASIMBETE/23 registered in his name but subsequently proceeded and sold the parcels of land to another person.
3. It was the Respondents’ case that pursuant to the meeting held at the Assistant County Commissioner’s (ACC) office on the 06/02/2025 in order to solve the said dispute it was agreed that the Appellant was to refund the purchase price to the claimant herein at the rate of 165,000.00 per acre and the costs of iron sheets to the 3 rd Respondent.
4. It was further pleaded that as per the agreement, the Respondents were to be reimbursed as follows; 1 st Respondent Kshs. 165,000.00, 2 nd Respondent Kshs. 165,000.00, 3 rd Respondent 330,000.00, 4 th Respondent 412,500.00, 5 th Respondent 165,000.00, 6 th Respondent 330,000.00 and additionally pursuant to the agreement the 3 rd Respondent was to be refunded the costs of the iron sheet of Kshs. 137,550.00.
5. That it was further pleaded that by the 18/3/2025 when the money was to be reimbursed there was an outstanding amount as follows; 1 st Respondent 65,000.00, 2 nd Respondent 65,000.00, 3 rd Respondent 267,550.00 4 th Respondent 130,000.00, 5 th Respondent 65,000.00 & 6 th Respondent 130,000.00 and the Respondent in totality sought the trial court to compel the Appellant to reimburse the amount of Kshs. 722,550.00 together with costs and interests thereon.
6. The Appellant filed his Defence in which he pleaded that he did not owe any of the Respondents any money having paid them as per the agreement made on the 22/5/2025 and 22/07/25 at the ACC – Suba Wasimbete Divisions Office. He pleaded that the matter be dismissed with costs.
7. Judgement was entered against the Appellant and being dissatisfied with the court’s decision, the appellant lodged this appeal citing 6 grounds of appeal as follows: -
1) That the learned adjudicator erred in law by misapplying the legal principles governing the interpretation of written agreements, in holding that the agreement dated 22 nd July, 2025 superseded the earlier agreement dated 22 nd May, 2025 contrary to the express wording and intention of the parties.
2) That the learned adjudicator erred in law by disregarding the legal effect of acknowledgement of payment contained in the agreements produced as Exhibits 2 and 3, thereby wrongly concluding that the Respondents’ claim were still outstanding.
3) That the learned adjudicator erred in law by failing to properly apply the evidentiary burden of proof under section 107-109 of the Evidence Act, thereby placing upon the Appellant the burden of disapproving claims that had been expressly admitted as settled.
4) That the learned adjudicator erred in law by failing to give due weight to admissions made by the Respondents during cross – examination, contrary to Section 17 of the Evidence Act and established case law on the probative value of admissions.
5) That the learned adjudicator erred in law by entering judgement for the Respondents in the sum of 722,550/= in the absence of any lawful or evidential basis, thereby occasioning a miscarriage of justice.
6) That the learned adjudicator’s judgement and decree were contrary to the law and the evidence on record, and thus unsustainable in law.
8. The appeal was canvassed by way of written submissions which I have considered. From the pleadings and submissions, I find that the following issues arise for determination:
1) Whether the principles governing the interpretation and legal effect of written agreements were properly applied in determining the effect of the agreements dated 22 nd May 2025 and 22 nd July 2025.
2) Whether the provisions of the Evidence Act relating to the burden of proof, acknowledgements of payment and admissions were properly applied to the documentary and oral evidence on record.
3) Whether, in law, the Respondents discharged the burden of proving an outstanding claim of Kshs. 722,550/= in light of the acknowledgements of payment and admissions contained in the evidence.
Analysis & Determination
9. This is an appeal from the Small Claims Court which is established under section 4(1) of the Small Claims Court Act . Section 38 of the said Act provides for appeals. It states as follows:
“Any person aggrieved by the decision or an order of the court may appeal against the decision or order to the High Court on matters of Law”.
10. The right of appeal from a decision of the said court is limited to matters of law. In Kitui Flour Mills Limited v Kirimi & Another (Civil Appeal E172 of 2023) [2024] KEHC 420 the court examined the said provision and held as follows;
“It is trite that an appeal on a matter of law includes the inquiry whether the conclusions of the trial court are sound on the evidence availed before it and, therefore, with respect to counsel for the respondents, this involves the re-evaluation of the evidence. In the very decision cited by Counsel for the Respondents, Peter Gichuki King'ara v IEBC & 2 Others[2014]eKLR , the Court of Appeal (Visram, Koome (as she then was) & Odek, JJ.A .) where after considering the authorities held “Having established that we have jurisdiction to determine only issues of law as per the provisions of Section 85A of the Elections Act, to us the whole question of whether the trial Judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence with of course the usual caveat, that we did not see the witnesses demeanor is an issue of law.” [emphasis added]
11. The said provision was also addressed by the High court in Wanjiru vs Kiilu (2024) KEHC 8881 (KLR ) where it was held as follows:
“It therefore follows that appeals originating from the Small Claims Court to this court can only on the points of law. Consequently, this court cannot, in appeals emanating from that Court, entertain an invitation to interfere with the factual findings of the trial court. The duty of this court when dealing with such appeals, is therefore equivalent to that of the Court of Appeal in its capacity as a second appellate court. In Kenya Breweries Ltd v Godfrey Odoyo [2010] Eklr, the Court of Appeal distinguished between matters of law and matters of fact and stated that: “First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyze it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of a retrial and facts must be revisited and analyzed a fresh, - see Selle & Another vs. Associated Motor Boat Company Ltd & Others (1968) EA 123. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.”
12. Also, in Charles Kipkoech Leting v Express (K) Ltd & Another [2018] eKLR the Court of Appeal further clarified that where a right of appeal is confined to questions of law only, an appellate court is duty bound to accept the findings of fact of the lower court. The appellate Court should not interfere with the decision of the trial court on the factual issues ‘unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law’. The court stated that;
“This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina vs Mugiria [1983] KLR78, Kenya Breweries Ltd vs Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another vs Bernard Munene Ithiga [2016] eKLR , for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. See also the English case of Martin vs Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 wherein, it was held inter alia that, where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s)and resist the temptation to treat findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.”
13. Applying the above decisions to the instant appeal, it is therefore clear that when dealing with this appeal, this court will only confine itself to the issues of law raised in the Memorandum of Appeal.
14. On the first issue, the starting point in the interpretation of a written agreement is that the intention of the parties is to be ascertained from the terms which they themselves reduced into writing. The Court of Appeal in Samuel Ngige Kiarie vs Njowamu Construction Company Limited & Another [2019] KECA 602, emphasized that the object of construction of contractual terms is to ascertain their meaning and, in particular, the common intention of the parties. The Court further reiterated that parties are bound by the terms and conditions of the contract they have entered into.
15. Equally, it is a settled principle that a court ought not to rewrite a contract for the parties. In National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR , the Court of Appeal held that parties are bound by the terms of their contract unless coercion, fraud or undue influence is pleaded and proved. The same principle has continued to be applied by the Kenyan courts.
16. I have perused the record and I note that the agreement dated 6 th February 2025 established the parties’ underlying arrangement, namely that the Appellant would reimburse the Respondents for the monies expended in relation to the parcels initially purchased from the Appellant at the agreed rate of Kshs. 165,000.00 per acre. The subsequent agreements dated 22 nd May 2025 and 22 nd July 2025 were relevant in demonstrating the payments subsequently made by the Appellant pursuant to that arrangement. It is important to note that the documents of 22 nd May, 2025 and 22ns July, 2025 were not agreements but acknowledgments of payments done subsequent to the agreement of 6 th February, 2025. The payments did not alter the terms set out in the initial agreement of 6 th February 2025.
17. It is my considered view that the reliance on the agreement dated 22 nd July 2025 was therefore proper in law. The fact that it was subsequent to the agreement dated 22 nd May 2025 did not, by itself, render it incapable of consideration. Rather, it formed part of the continuing payment arrangement between the parties and provided evidence of the sums that had been paid.
18. Importantly, neither of the subsequent agreements expressly stated that the amounts paid constituted a mutually agreed full and final settlement of the Appellant’s obligation. The agreements merely recorded the payments made and therefore the acknowledgement of payments made could not without more, be construed as an agreement by the parties that the Appellant's entire obligation had been extinguished.
19. The trial court was therefore correct to consider the July agreement in conjunction with the earlier agreements and the underlying agreement of 6 th February 2025. The subsequent agreement did not have to be disregarded merely because it did not expressly state that it superseded the earlier agreement. Equally, it did not have to be treated as a discharge of the earlier obligation merely because it recorded further payments.
20. To this end, I find that the trial court was therefore right to consider the subsequent agreement as part of the continuing payment arrangement and to determine whether the Respondents had raised a plausible case. I will not interfere with the judgement of the trial court on this limb
21. On the second issue, Sections 107–109 of the Evidence Act is relevant. The sections provide as follows:
Section 107(1) provides that:
“ 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 .”
Section 107(2) provides that:
“ When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person .”
Section 108 further provides that:
“ The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. ”
Section 109 provides that:
“ The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person .”
22. These provisions embody the settled principle that he who asserts must prove. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2004] eKLR , the Court of Appeal held that the legal burden lies upon the party who substantially asserts the affirmative of an issue, while the evidential burden relates to proof of a particular fact.
23. In the present matter, the initial legal burden rested upon the Respondents, who asserted that the Appellant was indebted to them. In my view, that burden was capable of being discharged by the evidence placed before the court. The Respondents produced the agreements relating to the sale of the parcels and testified in respect thereof. They further produced the agreement dated 6 th February 2025, pursuant to which the Appellant agreed to reimburse the Respondents the monies they had expended in purchasing and developing the parcels at the rate of Kshs. 165,000.00 per acre.
24. The Appellant thereafter produced the agreements dated 22 nd May 2025 and 22 nd July 2025, which recorded payments made by the Appellant towards the reimbursement. The documentary evidence, taken together with the oral testimonies, therefore established the underlying reimbursement arrangement and the payments made pursuant thereto
25. Further while the respondents were giving their testimonies the acknowledgements of payment in the agreements were therefore relevant evidence which the court was entitled to consider in determining the amount outstanding.
26. In my view, therefore, the Respondents had placed sufficient documentary and oral evidence before the court to discharge the initial burden imposed by Sections 107–109 of the Evidence Act . The agreements established the underlying transaction and reimbursement arrangement, while the agreements dated 22 nd May 2025 and 22 nd July 2025 demonstrated payments made towards that obligation.
27. The most pertinent question would therefore be whether the evidence sufficiently supported the computation of the Kshs. 722,550.00 balance, and this forms the last issue for determination
28. In my view, the computation of the sum of Kshs. 722,550.00, standing alone, is a question of fact and does not constitute a matter of law for purposes of an appeal under Section 38 of the Small Claims Court Act. However, where the complaint is that the award was made without sufficient evidence to establish the amount outstanding, the issue becomes one of the proper applications of the burden of proof under Sections 107–109 of the Evidence Act. It is also critical to note that sometimes, the question of law is anchored on the facts of the case. This is one such circumstance.
29. In the present case, the Respondents established the reimbursement obligation at Kshs. 165,000.00 per acre. The agreement of 6 th February 2025, clearly set out the acreage that was applicable to each of the Respondents. The 1 st , 2 nd , and 5 th , Respondent was entitled to one acre each, the 4 th Respondent, 2.5 acres and 3 rd and 6 th Respondents 2 acres each. The parties produced agreements evidencing partial payments made by the Appellant. Accordingly, I find no error of law in the manner in which the burden of proof was applied and I would not interfere with the award of Kshs. 722,550.00.
30. Overall, I do not find merit in the appeal herein, and I hereby dismiss it, with costs
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026.
HCCA NO. E138 OF 2025 KOSMA ODOYO AWES VS HENRY ODHIAMBO ODONGO & 5 OTHERS JUDGMENT Pg. 11
JUDGMENT.
Brief facts
1. This appeal arises from the judgment of Migori Resident Magistrate/Adjudicator in SCCC No. E110 of 2025 whereby the trial court allowed the Respondent’s suit against the Appellant, for the sum of Kshs. 722,550.00 as prayed in the Statement of Claim.
2. The Respondents pleaded that on various dates from 11 th June, 2011 to 13 th January, 2024 the Appellant sold parcels of land emanating from land parcel No. SUNA WEST/WASIMBETE/23 registered in his name but subsequently proceeded and sold the parcels of land to another person.
3. It was the Respondents’ case that pursuant to the meeting held at the Assistant County Commissioner’s (ACC) office on the 06/02/2025 in order to solve the said dispute it was agreed that the Appellant was to refund the purchase price to the claimant herein at the rate of 165,000.00 per acre and the costs of iron sheets to the 3 rd Respondent.
4. It was further pleaded that as per the agreement, the Respondents were to be reimbursed as follows; 1 st Respondent Kshs. 165,000.00, 2 nd Respondent Kshs. 165,000.00, 3 rd Respondent 330,000.00, 4 th Respondent 412,500.00, 5 th Respondent 165,000.00, 6 th Respondent 330,000.00 and additionally pursuant to the agreement the 3 rd Respondent was to be refunded the costs of the iron sheet of Kshs. 137,550.00.
5. That it was further pleaded that by the 18/3/2025 when the money was to be reimbursed there was an outstanding amount as follows; 1 st Respondent 65,000.00, 2 nd Respondent 65,000.00, 3 rd Respondent 267,550.00 4 th Respondent 130,000.00, 5 th Respondent 65,000.00 & 6 th Respondent 130,000.00 and the Respondent in totality sought the trial court to compel the Appellant to reimburse the amount of Kshs. 722,550.00 together with costs and interests thereon.
6. The Appellant filed his Defence in which he pleaded that he did not owe any of the Respondents any money having paid them as per the agreement made on the 22/5/2025 and 22/07/25 at the ACC – Suba Wasimbete Divisions Office. He pleaded that the matter be dismissed with costs.
7. Judgement was entered against the Appellant and being dissatisfied with the court’s decision, the appellant lodged this appeal citing 6 grounds of appeal as follows: -
1) That the learned adjudicator erred in law by misapplying the legal principles governing the interpretation of written agreements, in holding that the agreement dated 22 nd July, 2025 superseded the earlier agreement dated 22 nd May, 2025 contrary to the express wording and intention of the parties.
2) That the learned adjudicator erred in law by disregarding the legal effect of acknowledgement of payment contained in the agreements produced as Exhibits 2 and 3, thereby wrongly concluding that the Respondents’ claim were still outstanding.
3) That the learned adjudicator erred in law by failing to properly apply the evidentiary burden of proof under section 107-109 of the Evidence Act, thereby placing upon the Appellant the burden of disapproving claims that had been expressly admitted as settled.
4) That the learned adjudicator erred in law by failing to give due weight to admissions made by the Respondents during cross – examination, contrary to Section 17 of the Evidence Act and established case law on the probative value of admissions.
5) That the learned adjudicator erred in law by entering judgement for the Respondents in the sum of 722,550/= in the absence of any lawful or evidential basis, thereby occasioning a miscarriage of justice.
6) That the learned adjudicator’s judgement and decree were contrary to the law and the evidence on record, and thus unsustainable in law.
8. The appeal was canvassed by way of written submissions which I have considered. From the pleadings and submissions, I find that the following issues arise for determination:
1) Whether the principles governing the interpretation and legal effect of written agreements were properly applied in determining the effect of the agreements dated 22 nd May 2025 and 22 nd July 2025.
2) Whether the provisions of the Evidence Act relating to the burden of proof, acknowledgements of payment and admissions were properly applied to the documentary and oral evidence on record.
3) Whether, in law, the Respondents discharged the burden of proving an outstanding claim of Kshs. 722,550/= in light of the acknowledgements of payment and admissions contained in the evidence.
Analysis & Determination
9. This is an appeal from the Small Claims Court which is established under section 4(1) of the Small Claims Court Act . Section 38 of the said Act provides for appeals. It states as follows:
“Any person aggrieved by the decision or an order of the court may appeal against the decision or order to the High Court on matters of Law”.
10. The right of appeal from a decision of the said court is limited to matters of law. In Kitui Flour Mills Limited v Kirimi & Another (Civil Appeal E172 of 2023) [2024] KEHC 420 the court examined the said provision and held as follows;
“It is trite that an appeal on a matter of law includes the inquiry whether the conclusions of the trial court are sound on the evidence availed before it and, therefore, with respect to counsel for the respondents, this involves the re-evaluation of the evidence. In the very decision cited by Counsel for the Respondents, Peter Gichuki King'ara v IEBC & 2 Others[2014]eKLR , the Court of Appeal (Visram, Koome (as she then was) & Odek, JJ.A .) where after considering the authorities held “Having established that we have jurisdiction to determine only issues of law as per the provisions of Section 85A of the Elections Act, to us the whole question of whether the trial Judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence with of course the usual caveat, that we did not see the witnesses demeanor is an issue of law.” [emphasis added]
11. The said provision was also addressed by the High court in Wanjiru vs Kiilu (2024) KEHC 8881 (KLR ) where it was held as follows:
“It therefore follows that appeals originating from the Small Claims Court to this court can only on the points of law. Consequently, this court cannot, in appeals emanating from that Court, entertain an invitation to interfere with the factual findings of the trial court. The duty of this court when dealing with such appeals, is therefore equivalent to that of the Court of Appeal in its capacity as a second appellate court. In Kenya Breweries Ltd v Godfrey Odoyo [2010] Eklr, the Court of Appeal distinguished between matters of law and matters of fact and stated that: “First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyze it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of a retrial and facts must be revisited and analyzed a fresh, - see Selle & Another vs. Associated Motor Boat Company Ltd & Others (1968) EA 123. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.”
12. Also, in Charles Kipkoech Leting v Express (K) Ltd & Another [2018] eKLR the Court of Appeal further clarified that where a right of appeal is confined to questions of law only, an appellate court is duty bound to accept the findings of fact of the lower court. The appellate Court should not interfere with the decision of the trial court on the factual issues ‘unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law’. The court stated that;
“This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina vs Mugiria [1983] KLR78, Kenya Breweries Ltd vs Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another vs Bernard Munene Ithiga [2016] eKLR , for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. See also the English case of Martin vs Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 wherein, it was held inter alia that, where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s)and resist the temptation to treat findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.”
13. Applying the above decisions to the instant appeal, it is therefore clear that when dealing with this appeal, this court will only confine itself to the issues of law raised in the Memorandum of Appeal.
14. On the first issue, the starting point in the interpretation of a written agreement is that the intention of the parties is to be ascertained from the terms which they themselves reduced into writing. The Court of Appeal in Samuel Ngige Kiarie vs Njowamu Construction Company Limited & Another [2019] KECA 602, emphasized that the object of construction of contractual terms is to ascertain their meaning and, in particular, the common intention of the parties. The Court further reiterated that parties are bound by the terms and conditions of the contract they have entered into.
15. Equally, it is a settled principle that a court ought not to rewrite a contract for the parties. In National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR , the Court of Appeal held that parties are bound by the terms of their contract unless coercion, fraud or undue influence is pleaded and proved. The same principle has continued to be applied by the Kenyan courts.
16. I have perused the record and I note that the agreement dated 6 th February 2025 established the parties’ underlying arrangement, namely that the Appellant would reimburse the Respondents for the monies expended in relation to the parcels initially purchased from the Appellant at the agreed rate of Kshs. 165,000.00 per acre. The subsequent agreements dated 22 nd May 2025 and 22 nd July 2025 were relevant in demonstrating the payments subsequently made by the Appellant pursuant to that arrangement. It is important to note that the documents of 22 nd May, 2025 and 22ns July, 2025 were not agreements but acknowledgments of payments done subsequent to the agreement of 6 th February, 2025. The payments did not alter the terms set out in the initial agreement of 6 th February 2025.
17. It is my considered view that the reliance on the agreement dated 22 nd July 2025 was therefore proper in law. The fact that it was subsequent to the agreement dated 22 nd May 2025 did not, by itself, render it incapable of consideration. Rather, it formed part of the continuing payment arrangement between the parties and provided evidence of the sums that had been paid.
18. Importantly, neither of the subsequent agreements expressly stated that the amounts paid constituted a mutually agreed full and final settlement of the Appellant’s obligation. The agreements merely recorded the payments made and therefore the acknowledgement of payments made could not without more, be construed as an agreement by the parties that the Appellant's entire obligation had been extinguished.
19. The trial court was therefore correct to consider the July agreement in conjunction with the earlier agreements and the underlying agreement of 6 th February 2025. The subsequent agreement did not have to be disregarded merely because it did not expressly state that it superseded the earlier agreement. Equally, it did not have to be treated as a discharge of the earlier obligation merely because it recorded further payments.
20. To this end, I find that the trial court was therefore right to consider the subsequent agreement as part of the continuing payment arrangement and to determine whether the Respondents had raised a plausible case. I will not interfere with the judgement of the trial court on this limb
21. On the second issue, Sections 107–109 of the Evidence Act is relevant. The sections provide as follows:
Section 107(1) provides that:
“ 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 .”
Section 107(2) provides that:
“ When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person .”
Section 108 further provides that:
“ The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. ”
Section 109 provides that:
“ The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person .”
22. These provisions embody the settled principle that he who asserts must prove. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2004] eKLR , the Court of Appeal held that the legal burden lies upon the party who substantially asserts the affirmative of an issue, while the evidential burden relates to proof of a particular fact.
23. In the present matter, the initial legal burden rested upon the Respondents, who asserted that the Appellant was indebted to them. In my view, that burden was capable of being discharged by the evidence placed before the court. The Respondents produced the agreements relating to the sale of the parcels and testified in respect thereof. They further produced the agreement dated 6 th February 2025, pursuant to which the Appellant agreed to reimburse the Respondents the monies they had expended in purchasing and developing the parcels at the rate of Kshs. 165,000.00 per acre.
24. The Appellant thereafter produced the agreements dated 22 nd May 2025 and 22 nd July 2025, which recorded payments made by the Appellant towards the reimbursement. The documentary evidence, taken together with the oral testimonies, therefore established the underlying reimbursement arrangement and the payments made pursuant thereto
25. Further while the respondents were giving their testimonies the acknowledgements of payment in the agreements were therefore relevant evidence which the court was entitled to consider in determining the amount outstanding.
26. In my view, therefore, the Respondents had placed sufficient documentary and oral evidence before the court to discharge the initial burden imposed by Sections 107–109 of the Evidence Act . The agreements established the underlying transaction and reimbursement arrangement, while the agreements dated 22 nd May 2025 and 22 nd July 2025 demonstrated payments made towards that obligation.
27. The most pertinent question would therefore be whether the evidence sufficiently supported the computation of the Kshs. 722,550.00 balance, and this forms the last issue for determination
28. In my view, the computation of the sum of Kshs. 722,550.00, standing alone, is a question of fact and does not constitute a matter of law for purposes of an appeal under Section 38 of the Small Claims Court Act. However, where the complaint is that the award was made without sufficient evidence to establish the amount outstanding, the issue becomes one of the proper applications of the burden of proof under Sections 107–109 of the Evidence Act. It is also critical to note that sometimes, the question of law is anchored on the facts of the case. This is one such circumstance.
29. In the present case, the Respondents established the reimbursement obligation at Kshs. 165,000.00 per acre. The agreement of 6 th February 2025, clearly set out the acreage that was applicable to each of the Respondents. The 1 st , 2 nd , and 5 th , Respondent was entitled to one acre each, the 4 th Respondent, 2.5 acres and 3 rd and 6 th Respondents 2 acres each. The parties produced agreements evidencing partial payments made by the Appellant. Accordingly, I find no error of law in the manner in which the burden of proof was applied and I would not interfere with the award of Kshs. 722,550.00.
30. Overall, I do not find merit in the appeal herein, and I hereby dismiss it, with costs
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026.
HCCA NO. E138 OF 2025 KOSMA ODOYO AWES VS HENRY ODHIAMBO ODONGO & 5 OTHERS JUDGMENT Pg. 11