(Being an appeal against the Judgement and Decree of the Honourable Edward Tsimonjero, SRM in Ukwala MCCC E031 OF 2024 delivered on 18 th September, 2025)
1. The appeal herein arises from the Judgment/decree of Honourable Edward Tsimonjero, (SRM) in Ukwala MCCC E031 OF 2024 wherein he dismissed the Appellant’s suit and ordered each party to bear their own costs.
2. The Appellant was aggrieved by the entire Judgment and decree and thus duly filed a Memorandum of Appeal dated 23 rd September 2025, wherein he raised the following grounds of appeal namely;-
i) That the learned trial Magistrate erred in law and in fact by finding that Kshs. 126,500 allegedly paid by the Respondent in installment was way past the agreed ‘’I owe you agreement’’ dated 4/07/2023 and whose due date was 4th March, 2024 and way far after filing Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo on 8th April, 2024 was in satisfaction of Kshs. 140,000, excluding the balance of Kshs. 14,000 and thereby the Appellant waived his rights to claim under ‘’I Owe You Agreement’’ in exclusion of the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and ‘’I owe you agreement’’ dated 4/07/2023 thereby arriving at wrong findings, analysis, conclusion, judgment and casualization of a judicial process to the detriment of the Appellant.
ii) That the learned trial Magistrate erred in law and in fact by finding that Kshs. 126,500 allegedly paid by the Respondent in installment was in satisfaction of Kshs. 140,000, yet the Respondent’s M-Pesa Evidence did not directly prove that the alleged payments were Kshs. 126,500 was by the Respondent but by different parties not party to the dispute , namely Daniel Oloo , Fredrick Owuor, Emmaculate Ochieng , Vintage Distributors, Fredrick Otieno Owour , Rodgers Ahura , Joyce Ogutu, Dalton Otieno , Meshack Onyango , Stephen Onyango and Manna Lifestyle Ugunja) and thereby necessitating the Appellant’s to waive his rights to claim under ‘’I owe you agreement’’ ,the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023.
iii) That the learned trial Magistrate erred in law and in fact by computing Kshs. 126,500 as having being paid by 4th March, 2024, which computation was wrong both in fact and in law contrary to the Appellant’s pleadings and evidence that as of 8th April, 2024, the Respondent had not paid any single cent out of the I owe you agreement dated 4/07/2023.
iv) That the learned trial Magistrate erred in law and in fact by proceeding to find that the amount of money due and owing to the Appellant was Kshs. 14,000 and in fact that the Respondent had overpaid an excess of Kshs. 4,500 which proceeding and findings were contradictory findings and conclusion in one judgment to the detriment of the Appellant.
v) That the learned trial Magistrate erred in law and in fact by depriving the Appellant constitutional right to institute a suit on the ground that the Appellant was to demand Kshs.14, 000 and not to insist on a suit upon receipt of Kshs. 70,000, yet the suit was filed on 8th April, 2024 and the Kshs. 70,000 paid on or about 13th May, 2024 more than one month after the suit was filed. This was a clear misapprehension of the claim, the fact and issues of the case in dispute thereby leading to contradictory findings and conclusion in one judgment to the detriment of the Appellant.
vi) That the learned trial Magistrate erred in law and in fact by ignoring the law and facts on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof were drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent therefrom were done at the Respondent’s own convenient into a debtor-creditor relationship to the detriment of the Appellant, thereby necessitating fling of Ukwala Case Number: MCCC/E031/2024, against the Respondent in his individual capacity as opposed to one Mary Otieno Obai for the purchase of land number Uholo/Ugunja/3535 (0.282 Ha).
vii) That the learned trial Magistrate erred in law and in fact by ignoring and delinking Appellant’s prayer (a) from the rest of prayers (b to e) on a dispute and series of pleadings and evidence on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent to the detriment of the Appellant.
viii) That the learned trial Magistrate erred in law and in fact by misconstruing the Appellant’s case as against the Respondent and not one Mary Otieno Obai in the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, ‘’I owe you’’ agreement dated 4/07/2023 and unilateral variation of payments modes thereof drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent to the detriment of the Appellant. The schemes and methods to frustrate the appellant were designed and executed by the Respondent as opposed to one Mary Otieno Obai relative of the Respondent, thus the suit against the Respondent.
ix) That the learned trial Magistrate erred in law and in fact by misconstruing the Appellant’s case as against the Respondent in the context of masquerading as an advocate and punishment thereof viz-a-viz Camilita Akinyi Odebero v Wilfred Barasa Opondo [2017] KEHC 3903 (KLR) in role the Respondent payed in drafting the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent to the detriment of the Appellant. The schemes and methods in the whole dispute were designed, executed and attributed to the Respondent.
x) That the learned trial Magistrate erred in law and in fact by applying both the ratio decidendi and obiter dicta in High Court of Kenya at Nairobi Civil Suit No. 287 of 2013, Taj Mall Limited-V-Hellen Njambi Mbugua, to a claim of interests only @ 29 & per annum on a completed sale agreement, which was not the case in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo thereby arriving at wrong judicial findings, reasoning, analysis, conclusions and judgement to the detriment of the Appellant.
xi) That the learned magistrate erred in law and in fact in disregarding evidence that the relationship between the Appellant and the Respondent was that of client-advocate inside M/S Odhiambo Onyango Advocates law firm when in fact the Appellant saw the Respondent first hand evidence and experience in drawing the agreements as an advocate, signed differently and witnessed and all circumstantial evidence attest to that including receipt and refund of part of purchase price culminating to I owe you agreement dated 4/07/2023.
xii) That the learned magistrate erred in law and in fact in disregarding stare decisis in the dispute and when the Respondent’s drew and signed Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023, the debtor-creditor relationship and receipt of the purchase price.
xiii) That the learned magistrate erred in law and in fact in identifying and determining the issues in dispute and claim between the parties as discerned from the pleadings, evidence, hearing and submissions on record.
xiv) That the learned trial Magistrate erred in law and in fact by applying both the law and principles applicable in a sale & purchase of a maisionnette agreement to charge interests @ 29 & per annum on a completed sale agreement as opposed to creditor-debtor law principles on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 arising from a sale and cancellation of land transaction agreement that was initiated, drawn , acknowledged , signed , cancelled and turned into a debtor-creditor relationship at the sole behest of the Respondent as the advocate for both the Appellant and the Respondent-his vendor relative.
xv) That the learned trial Magistrate erred in law and in fact by applying in error the legal principles of waiver that were never pleaded and proved by the Respondent defense into a debtor-creditor relationship under unfulfilled Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 that was turned into debtor-creditor relationship by the Respondent to the detriment of the Appellant.
xvi) That the learned trial Magistrate erred in law and in fact by applying both the ratio decidendi and obiter dicta in High Court of Kenya at Nairobi Civil Suit No. 287 of 2013, Taj Mall Limited-V-Hellen Njambi Mbugua into the law, facts and issues in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo thereby arriving at wrong judicial findings, reasoning, analysis, conclusions and judgement to the detriment of the Appellant.
xvii) That the learned trial Magistrate erred in law and in fact by applying both the ratio decidendi and obiter dicta in a distinguishable case of High Court of Kenya at Nairobi Civil Suit No. 287 of 2013, Taj Mall Limited-V-Hellen Njambi Mbugua , a case on charging interests only into the law, facts and issues in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo a case for claim of Kshs. 122,000 plus interests, lost opportunities, compensation, general & punitive damages, punishment and fine thereby arriving at wrong judicial findings, reasoning, analysis, conclusions and judgement to the detriment of the Appellant.
xviii) That the learned trial Magistrate erred in law and in fact by selectively and impartially focusing on the “I owe you agreement dated 4/07/2023” to apply the standard of proof on a balance of probabilities in the dispute to the exclusion of primary Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023 and a deed of acknowledgment dated 18/05/2018 all drawn and signed by the Respondent , thereby requiring a higher standard of proof in a civil claim beyond balance of probabilities to the detriment of the Appellant.
xix) That the learned trial Magistrate erred in law and in fact by selectively and impartially focusing on the M-Pesa Statements paid by strangers into the Appellant’s Cellphone Number to apply the standard of proof in the dispute to dismiss with no costs the Appellant’s claim in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo and proceed to find he was owed a balance of the Claim to the detriment of the Appellant.
xx) That the learned trial Magistrate erred in law and in fact by applying in error the principles of a fully performed sale & purchase agreement of a marionette into unperformed and unfulfilled Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 solely turned by the Respondent at his convenient into a debtor-creditor relationship to the detriment of the Appellant.
xxi) That the learned trial Magistrate erred in law and in fact by failing and ignoring to consider the Appellant’s submissions on the law, facts and evidence on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 as to the Respondent’s statement of defense, witness statement and evidence to the detriment of the Appellant.
xxii) That the learned trial Magistrate erred in law and in fact by applying selectively and unfairly in an unjudicial manner the stipulation of eight (8) months’ time frame in the “ I owe you agreement dated 4/07/2023 “ of repayment of a debt and interest thereof to the detriment of the Appellant , yet it is the Respondent who defaulted in not meeting his part of the debt on his part to pay the entire amount and interest within the of eight (8) months’ time frame , thereby necessitating the filing of Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo on 8th April, 2024.
xxiii) That the learned trial Magistrate erred in law and in fact by applying the principles of waiver in retrospective and selectively against the Appellant in favor of the Respondent in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo when in fact the case was already filed on or about 8th April, 2024 and the Respondent’s Kshs. 70,000 was paid on 13th May, 2024 @ 13:04:48 vide M-PESA SED44C345Q by unknown person without justification long after the eight (8) months’ time frame in the I owe you agreement dated 4/07/2023 had long lapsed and more than one (1) month after the claim suit was filed against the Respondent. Before and after filing of the claim, parties herein never entered into further negotiations and agreed on mode of payments, waiver of the claim and interests thereon after the date in the I owe you agreement and completion thereof. But instead the Respondent unilaterally and without any consensual negations and approval unilaterally re-wrote I owe you agreement and paid at his leisure & pleasure in installments, which variations and installments were never a subject of party’s consensual agreement.
xxiv) That the learned trial Magistrate erred in law and in fact by applying in error ,law, facts and evidence that time of payment and waiver of claim under debtor-creditor relationship was of the essence on the part of the Appellant only and not on the part of the Respondent in the I owe you agreement dated 4/07/2023 in relation to time of payment , receipt and filing of Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo thereby arriving at wrong findings, analysis , conclusion and judgment to the detriment of the Appellant.
xxv) That the learned trial Magistrate erred in law and in fact and deselected his duty to act judiciously under Article 159 of the Constitution based on evidence and circumstances under which the Respondent acted for his relative or person known to the Respondent in the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 and debtor-creditor relationship to the detriment of the Appellant.
xxvi) That by disregarding the Appellant’s pleadings and submissions in the dispute, the learned trial Magistrate grossly erred in law and in fact and misdirected himself by failing to appreciate sufficiently or at all that the Respondent was the architecture and schemer in the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and debtor-creditor relationship in law and or in fact to the detriment of the Appellant.
xxvii) That the learned trial Magistrate misdirected himself, mishandled and misconstrued the legal principle in the case before the Learned Trial Magistrate by reasons therefore came to a wrong conclusion on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and debtor-creditor relationship.
xxviii) That the learned trial Magistrate grossly erred in law and in fact and misdirected himself by misapprehending the dispute before the Learned Trial Magistrate, applying the wrong principles of law and thereby arriving at a decision that is manifesting wrong and unsupported in law and by the evidence on record.
xxix) That the learned trial Magistrate misdirected himself and erred in law and fact in delivering a judgement that is contradicting and in conflict with the constitution, the law and evidence before it.
Reasons whereof, the Appellant prays for the following reliefs:
a) The Appeal herein be allowed with costs.
b) The Judgment and Decree in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor -Versus- Oreka Godweince Omolo be set aside in entirety.
c) The Honourable Court be persuaded to order and declare that the Appellant is entitled to claim and prayers sought as against the Respondent in Ukwala Case Number: MCCC/E031/2024 and do order as so as submitted vide Submissions dated 21st August, 2025.
d) The Honourable Court does issue such orders and give such direction as it may consider appropriate to meet the ends of justice.
3. This being the first appellate Court, its duty is well spelt out to re-evaluate the evidence tendered before the trial Court and to arrive at its own independent conclusion. The Court will also have to take into account the fact that it did not see or hear the witnesses as they testified. See Selle vs Associated Motor Boat Company Limited (1968(E. A. 123.)
4. The Appellant had lodged suit vide a plaint dated 8 th April 2024 in which he sought for the following reliefs; -
i) Kshs. 122, 000/= plus interest at 20% per month from 19 th October 2022.
ii) Lost opportunity to purchase land title No. UHOLO/UGUNJA/3535 (0.28Ha).
iii) Compensation for inconveniences in a promising land transaction.
iv) General and punitive damages given that the sale agreement was termination due to no fault of the Appellant but the Defendant’s fault and greed.
v) Punishment and fine for masquerading as a lawyer/advocate in a conveyancing transaction.
vi) Costs of the suit.
5. The Respondent filed a statement of defence dated15/7/2025 and sought for the dismissal of the Appellant’s suit with costs.
6. The trial commenced in earnest on 12/7/2024.
7. Moses Richard Owuor (PW1) adopted is written statement and list of documents dated 8 th April 2024 as his evidence in chief. He further stated that he was in court after the Defendant had cancelled the Sale Agreement he had entered into but had failed to fully refund the purchase price. That he knew the Defendant as an Advocate and he was the one who drew the Agreement. That the Sale Agreement was drawn by ODHIAMBO ONYANGO & CO. ADVOCATES. That the person he met is the one who signed the Agreement and it was GODWENCE OMOLO OREKA, the Defendant. That the cancellation was made by ODHIAMBO ONYANGO. It was the Defendant who signed the cancellation on his behalf. The Defendant informed him that he had received the sum of Kshs.300,000/= on his behalf and he should go and collect it. As per the Deed of Acknowledgement, the Defendant confirms that he was a clerk in the firm of ODHIAMBO ONYANGO ADVOCATES. After consultation with his Advocate, he came to collect the money but the Defendant did not have the entire amount. That they entered into an "I OWE YOU AGREEMENT" whereby the Defendant was to pay him by December but he did not receive the payment. The 20% interest was agreed upon in the I OWE YOU AGREEMENT. The Defendant was to pay the sum of Kshs.140,000/= by end of December 2022. He only paid Kshs.32,000/=. In February, he paid Kshs.24,000/= and in May 2024, he paid Kshs.70,000/= via M-Pesa. By then the Agreement had expired and the suit already filed.
On cross examination, he confirmed that the Sale Agreement was between himself and Mary Otieno Obai. The Advocate was Odhiambo Onyango. He did not conduct a search to confirm if the Defendant was an Advocate. He could not confirm when he received the sum of Kshs.178,000/=. He went to collect the money from the Defendant. The Defendant sent him Kshs.155,000/= through KCB Bank. On 30 th June 2023, he received Kshs.100,000/=. The “I owe you agreement” is dated 4 th July 2023. The amount in issue was Kshs.100,000/= which was owed to him by then. After 4 th July 2023, he has received some money from the Defendant. In total he has received Kshs.116,500/= from 4 th July 2023 to date. That from 30 th June 2023 to date, he has received Kshs.126,500/=.
On re-examination, he stated that he used to meet the Defendant at the offices of Odhiambo Onyango Advocate’s offices at Ugunja. That the Defendant was acting as an Advocate. That he is the one who used to send him the money and thus a confirmation that he was the one doing the transaction. That he did not sign the cancellation agreement. That he was to pay Kshs 140,000/ which he did not.
8. Oreka Godwence Omolo (DW1) was the Respondent herein. He adopted his written statement and list of documents filed on 6 th August 2025 as his evidence in-chief. He further stated that he works as clerk at the office of Odhiambo Onyango & Co. Advocates. He acted as an intermediary between the Plaintiff (Buyer) and the Seller and he was a witness. The two parties went to their office for the Sale Agreement. The parties signed the Agreement. After some time, the seller complained that they had disagreed with the buyer for not meeting their obligation under the Sale Agreement. He was aware of the cancellation of the Sale Agreement as the seller went to their offices and left there the money that had been paid to them as part of the purchase price stating that they were no longer interested in the Agreement. The seller surrendered Kshs.300,000/=. He contacted the Plaintiff and informed him of the position but the Plaintiff responded that he was not interested in the cancellation. The Plaintiff did not collect the money immediately but came after a month. By then, he did not have the entire amount. He paid him Kshs.175,000/= through KCB since he was the one in custody of the money. They agreed that he would pay the balance of Kshs.125,000/= within a certain period. Prior to the I OWE YOU AGREEMENT, he had paid some money to the Plaintiff. At the time of entering into the I OWE YOU AGREEMENT, he did not have the money and the Plaintiff insisted that he would round of the balance to a round figure of Kshs.100,000/=. By then he owed him about Kshs.70,000/=.
On cross examination, he confirmed that there was a Sale Agreement which he witnessed though he did not sign it. He received the money on behalf of the Plaintiff since he was the one who knew him. He connected the Plaintiff to the Vendor. He knew the Vendor as she was a family friend. The Vendor complained that the Plaintiff wanted to collect rent from the tenants on the sold property yet he had not paid even the second instalment. He was asked to contact the Plaintiff and he received the money on his behalf. He signed the I OWE YOU AGREEMENT which was to run up to December 2023. He did not pay the full amount as he did not have the full amount at the time the Plaintiff came to collect the money.
9. That marked the end of the Respondent’s case.
10. The learned trial magistrate later considered the evidence an came up with the impugned judgement.
11. The appeal was canvassed by way of written submissions. However, it is only the Appellant who complied.
12. The Appellant opted to submit on each ground of appeal. On the first ground of appeal, it is the Appellant’s submissions that the claim for Kshs. 122,000 was not paid by the Respondent and remains unpaid as the Respondent did not adduce any evidence that he indeed paid the said sum as per the terms of “I owe you agreement” on record. By relying on uncorroborated and doctored m-pesa statement and third party’s payments to the Appellant the learned trial Magistrate erred in law and in fact by finding that unsubstantiated payment Kshs. 126,500 was in settlement of the Kshs. 122,000 claim thereby casualization of a judicial process to the detriment of the Appellant. That the third parties had paid Kshs. 127,500 to the Appellant on matters that were not related to “I Owe You Agreement”. That the evidence on record show how the Respondent desperately tried to doctor electronic evidence and m-pesa statement to match the Kshs. 122,000. The trial court failed to act judiciously and subject the m-pesa statement and payment print outs to judicial scrutiny.
13. On second ground of appeal, it is the Appellant’s contention and submissions that the Respondent’s M-Pesa Evidence and payment print outs did not directly prove that the alleged payments of Kshs. 126,500 (actual Kshs. 127,500) was made by the Respondent to the Appellant. Daniel Oloo, Fredrick Owuor, Emmaculate Ochieng, Vintage Distributors, Fredrick Otieno Owour, Rodgers Ahura, Joyce Ogutu, Dalton Otieno, Meshack Onyango, Stephen Onyango and Manna Lifestyle Ugunja were not parties to the claim and were not witnesses in the trial court. Payment of Kshs. 122,000 was not proved by the Respondent.
14. On third ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by computing Kshs. 126,500 as having being paid by 4th March, 2024, which computation was wrong both in fact and in law contrary to the party’s pleadings and evidence that as of 8th April, 2024, the Respondent had not paid any single cent out of the “I owe you agreement” dated 4/07/2023.There are no evidence on record to show and match that the Respondent in deed paid Kshs. 122,000 claim to the Appellant.
15. On Fourth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by proceeding to find that the amount of money due and owing to the Appellant was Kshs. 14,000 and in fact that the Respondent had overpaid an excess of Kshs. 4,500 which proceeding and findings were contradictory findings and conclusion in one judgment to the detriment of the Appellant. The Appellant’s Claim of Kshs. 122,000 against the Respondent remains unpaid to date. There is no way the trial court could find that the Respondent was owing the Appellant Kshs. 14,000 but still proceed to state that the Respondent had overpaid by Kshs. 4,500. It is the Appellant’ s submissions that the trial court’s judgement is a contradiction to exercise of judicial power and abdication of judicial functions by a judicial officer. The outstanding amount was Kshs, 122,000 and not Kshs. 14,000. There was no overpayment of Kshs. 4,500 made by the Respondent to the Appellant. The m-pesa statement and payment print out messages were from Daniel Oloo, Fredrick Owuor, Emmaculate Ochieng, Vintage Distributors, Fredrick Otieno Owour, Rodgers Ahura, Joyce Ogutu, Dalton Otieno, Meshack Onyango, Stephen Onyango and Manna Lifestyle Ugunja excluding the Appellant.
16. There was no evidence and witness statement that indeed the Respondent paid Kshs. 126,500 to the Appellant as alleged in satisfaction of Kshs. 122,000 claim. Consequently, the learned trial Magistrate misdirected himself and erred in law and fact in delivering a judgement that is contradicting and in conflict with the constitution, the law and evidence before it to the detriment of the Appellant. The High Court has the authority to review trial court decisions on the admissibility of doctored payments print outs and is now called upon to overturn them if deemed incorrect or unjust to a party.
17. On fifth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by depriving the Appellant constitutional right to institute a suit on the ground that the Appellant was to demand Kshs.14, 000 and not to insist on a suit upon receipt of Kshs. 70,000, yet the suit was filed on 8th April, 2024 and the Kshs. 70,000 paid on or about 13th May, 2024 more than one month after the suit was filed. This was a clear misapprehension of the claim, the fact and issues of the case in dispute thereby leading to contradictory findings and conclusion in one judgment to the detriment of the Appellant. One Stephen Onyango (pages 55 & 56 of the Record of Appeal) paid Kshs. 70,000 on 13/05/2024 at 1.04 p.m. The said Stephen Onyango was not a party to the dispute and was not called by the Respondent as a witness to testify in the trial court. The trial court did not appreciate and failed or ignored to understand the claim before him thereby arriving at wrong analysis and conclusion of fact that the Appellant ought to have demanded Kshs. 14,000 instead of instituting the suit.
18. On sixth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by ignoring the law and facts on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement dated 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof that were solely drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent therefrom at the Respondent’s own convenient into a debtor-creditor relationship to the detriment of the Appellant. The trial magistrate was casual and reckless in undertaking his judicial duties under Article 169 of the Constitution 2010. The Respondent was the brain and architecture of the purchase of land number Uholo/Ugunja/3535 (0.282 Ha), just the same w
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1. The appeal herein arises from the Judgment/decree of Honourable Edward Tsimonjero, (SRM) in Ukwala MCCC E031 OF 2024 wherein he dismissed the Appellant’s suit and ordered each party to bear their own costs.
2. The Appellant was aggrieved by the entire Judgment and decree and thus duly filed a Memorandum of Appeal dated 23 rd September 2025, wherein he raised the following grounds of appeal namely;-
i) That the learned trial Magistrate erred in law and in fact by finding that Kshs. 126,500 allegedly paid by the Respondent in installment was way past the agreed ‘’I owe you agreement’’ dated 4/07/2023 and whose due date was 4th March, 2024 and way far after filing Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo on 8th April, 2024 was in satisfaction of Kshs. 140,000, excluding the balance of Kshs. 14,000 and thereby the Appellant waived his rights to claim under ‘’I Owe You Agreement’’ in exclusion of the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and ‘’I owe you agreement’’ dated 4/07/2023 thereby arriving at wrong findings, analysis, conclusion, judgment and casualization of a judicial process to the detriment of the Appellant.
ii) That the learned trial Magistrate erred in law and in fact by finding that Kshs. 126,500 allegedly paid by the Respondent in installment was in satisfaction of Kshs. 140,000, yet the Respondent’s M-Pesa Evidence did not directly prove that the alleged payments were Kshs. 126,500 was by the Respondent but by different parties not party to the dispute , namely Daniel Oloo , Fredrick Owuor, Emmaculate Ochieng , Vintage Distributors, Fredrick Otieno Owour , Rodgers Ahura , Joyce Ogutu, Dalton Otieno , Meshack Onyango , Stephen Onyango and Manna Lifestyle Ugunja) and thereby necessitating the Appellant’s to waive his rights to claim under ‘’I owe you agreement’’ ,the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023.
iii) That the learned trial Magistrate erred in law and in fact by computing Kshs. 126,500 as having being paid by 4th March, 2024, which computation was wrong both in fact and in law contrary to the Appellant’s pleadings and evidence that as of 8th April, 2024, the Respondent had not paid any single cent out of the I owe you agreement dated 4/07/2023.
iv) That the learned trial Magistrate erred in law and in fact by proceeding to find that the amount of money due and owing to the Appellant was Kshs. 14,000 and in fact that the Respondent had overpaid an excess of Kshs. 4,500 which proceeding and findings were contradictory findings and conclusion in one judgment to the detriment of the Appellant.
v) That the learned trial Magistrate erred in law and in fact by depriving the Appellant constitutional right to institute a suit on the ground that the Appellant was to demand Kshs.14, 000 and not to insist on a suit upon receipt of Kshs. 70,000, yet the suit was filed on 8th April, 2024 and the Kshs. 70,000 paid on or about 13th May, 2024 more than one month after the suit was filed. This was a clear misapprehension of the claim, the fact and issues of the case in dispute thereby leading to contradictory findings and conclusion in one judgment to the detriment of the Appellant.
vi) That the learned trial Magistrate erred in law and in fact by ignoring the law and facts on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof were drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent therefrom were done at the Respondent’s own convenient into a debtor-creditor relationship to the detriment of the Appellant, thereby necessitating fling of Ukwala Case Number: MCCC/E031/2024, against the Respondent in his individual capacity as opposed to one Mary Otieno Obai for the purchase of land number Uholo/Ugunja/3535 (0.282 Ha).
vii) That the learned trial Magistrate erred in law and in fact by ignoring and delinking Appellant’s prayer (a) from the rest of prayers (b to e) on a dispute and series of pleadings and evidence on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent to the detriment of the Appellant.
viii) That the learned trial Magistrate erred in law and in fact by misconstruing the Appellant’s case as against the Respondent and not one Mary Otieno Obai in the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, ‘’I owe you’’ agreement dated 4/07/2023 and unilateral variation of payments modes thereof drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent to the detriment of the Appellant. The schemes and methods to frustrate the appellant were designed and executed by the Respondent as opposed to one Mary Otieno Obai relative of the Respondent, thus the suit against the Respondent.
ix) That the learned trial Magistrate erred in law and in fact by misconstruing the Appellant’s case as against the Respondent in the context of masquerading as an advocate and punishment thereof viz-a-viz Camilita Akinyi Odebero v Wilfred Barasa Opondo [2017] KEHC 3903 (KLR) in role the Respondent payed in drafting the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent to the detriment of the Appellant. The schemes and methods in the whole dispute were designed, executed and attributed to the Respondent.
x) That the learned trial Magistrate erred in law and in fact by applying both the ratio decidendi and obiter dicta in High Court of Kenya at Nairobi Civil Suit No. 287 of 2013, Taj Mall Limited-V-Hellen Njambi Mbugua, to a claim of interests only @ 29 & per annum on a completed sale agreement, which was not the case in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo thereby arriving at wrong judicial findings, reasoning, analysis, conclusions and judgement to the detriment of the Appellant.
xi) That the learned magistrate erred in law and in fact in disregarding evidence that the relationship between the Appellant and the Respondent was that of client-advocate inside M/S Odhiambo Onyango Advocates law firm when in fact the Appellant saw the Respondent first hand evidence and experience in drawing the agreements as an advocate, signed differently and witnessed and all circumstantial evidence attest to that including receipt and refund of part of purchase price culminating to I owe you agreement dated 4/07/2023.
xii) That the learned magistrate erred in law and in fact in disregarding stare decisis in the dispute and when the Respondent’s drew and signed Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023, the debtor-creditor relationship and receipt of the purchase price.
xiii) That the learned magistrate erred in law and in fact in identifying and determining the issues in dispute and claim between the parties as discerned from the pleadings, evidence, hearing and submissions on record.
xiv) That the learned trial Magistrate erred in law and in fact by applying both the law and principles applicable in a sale & purchase of a maisionnette agreement to charge interests @ 29 & per annum on a completed sale agreement as opposed to creditor-debtor law principles on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 arising from a sale and cancellation of land transaction agreement that was initiated, drawn , acknowledged , signed , cancelled and turned into a debtor-creditor relationship at the sole behest of the Respondent as the advocate for both the Appellant and the Respondent-his vendor relative.
xv) That the learned trial Magistrate erred in law and in fact by applying in error the legal principles of waiver that were never pleaded and proved by the Respondent defense into a debtor-creditor relationship under unfulfilled Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 that was turned into debtor-creditor relationship by the Respondent to the detriment of the Appellant.
xvi) That the learned trial Magistrate erred in law and in fact by applying both the ratio decidendi and obiter dicta in High Court of Kenya at Nairobi Civil Suit No. 287 of 2013, Taj Mall Limited-V-Hellen Njambi Mbugua into the law, facts and issues in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo thereby arriving at wrong judicial findings, reasoning, analysis, conclusions and judgement to the detriment of the Appellant.
xvii) That the learned trial Magistrate erred in law and in fact by applying both the ratio decidendi and obiter dicta in a distinguishable case of High Court of Kenya at Nairobi Civil Suit No. 287 of 2013, Taj Mall Limited-V-Hellen Njambi Mbugua , a case on charging interests only into the law, facts and issues in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo a case for claim of Kshs. 122,000 plus interests, lost opportunities, compensation, general & punitive damages, punishment and fine thereby arriving at wrong judicial findings, reasoning, analysis, conclusions and judgement to the detriment of the Appellant.
xviii) That the learned trial Magistrate erred in law and in fact by selectively and impartially focusing on the “I owe you agreement dated 4/07/2023” to apply the standard of proof on a balance of probabilities in the dispute to the exclusion of primary Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023 and a deed of acknowledgment dated 18/05/2018 all drawn and signed by the Respondent , thereby requiring a higher standard of proof in a civil claim beyond balance of probabilities to the detriment of the Appellant.
xix) That the learned trial Magistrate erred in law and in fact by selectively and impartially focusing on the M-Pesa Statements paid by strangers into the Appellant’s Cellphone Number to apply the standard of proof in the dispute to dismiss with no costs the Appellant’s claim in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo and proceed to find he was owed a balance of the Claim to the detriment of the Appellant.
xx) That the learned trial Magistrate erred in law and in fact by applying in error the principles of a fully performed sale & purchase agreement of a marionette into unperformed and unfulfilled Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 solely turned by the Respondent at his convenient into a debtor-creditor relationship to the detriment of the Appellant.
xxi) That the learned trial Magistrate erred in law and in fact by failing and ignoring to consider the Appellant’s submissions on the law, facts and evidence on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 as to the Respondent’s statement of defense, witness statement and evidence to the detriment of the Appellant.
xxii) That the learned trial Magistrate erred in law and in fact by applying selectively and unfairly in an unjudicial manner the stipulation of eight (8) months’ time frame in the “ I owe you agreement dated 4/07/2023 “ of repayment of a debt and interest thereof to the detriment of the Appellant , yet it is the Respondent who defaulted in not meeting his part of the debt on his part to pay the entire amount and interest within the of eight (8) months’ time frame , thereby necessitating the filing of Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo on 8th April, 2024.
xxiii) That the learned trial Magistrate erred in law and in fact by applying the principles of waiver in retrospective and selectively against the Appellant in favor of the Respondent in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo when in fact the case was already filed on or about 8th April, 2024 and the Respondent’s Kshs. 70,000 was paid on 13th May, 2024 @ 13:04:48 vide M-PESA SED44C345Q by unknown person without justification long after the eight (8) months’ time frame in the I owe you agreement dated 4/07/2023 had long lapsed and more than one (1) month after the claim suit was filed against the Respondent. Before and after filing of the claim, parties herein never entered into further negotiations and agreed on mode of payments, waiver of the claim and interests thereon after the date in the I owe you agreement and completion thereof. But instead the Respondent unilaterally and without any consensual negations and approval unilaterally re-wrote I owe you agreement and paid at his leisure & pleasure in installments, which variations and installments were never a subject of party’s consensual agreement.
xxiv) That the learned trial Magistrate erred in law and in fact by applying in error ,law, facts and evidence that time of payment and waiver of claim under debtor-creditor relationship was of the essence on the part of the Appellant only and not on the part of the Respondent in the I owe you agreement dated 4/07/2023 in relation to time of payment , receipt and filing of Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor-Versus-Oreka Godweince Omolo thereby arriving at wrong findings, analysis , conclusion and judgment to the detriment of the Appellant.
xxv) That the learned trial Magistrate erred in law and in fact and deselected his duty to act judiciously under Article 159 of the Constitution based on evidence and circumstances under which the Respondent acted for his relative or person known to the Respondent in the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018 and I owe you agreement dated 4/07/2023 and debtor-creditor relationship to the detriment of the Appellant.
xxvi) That by disregarding the Appellant’s pleadings and submissions in the dispute, the learned trial Magistrate grossly erred in law and in fact and misdirected himself by failing to appreciate sufficiently or at all that the Respondent was the architecture and schemer in the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and debtor-creditor relationship in law and or in fact to the detriment of the Appellant.
xxvii) That the learned trial Magistrate misdirected himself, mishandled and misconstrued the legal principle in the case before the Learned Trial Magistrate by reasons therefore came to a wrong conclusion on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and debtor-creditor relationship.
xxviii) That the learned trial Magistrate grossly erred in law and in fact and misdirected himself by misapprehending the dispute before the Learned Trial Magistrate, applying the wrong principles of law and thereby arriving at a decision that is manifesting wrong and unsupported in law and by the evidence on record.
xxix) That the learned trial Magistrate misdirected himself and erred in law and fact in delivering a judgement that is contradicting and in conflict with the constitution, the law and evidence before it.
Reasons whereof, the Appellant prays for the following reliefs:
a) The Appeal herein be allowed with costs.
b) The Judgment and Decree in Ukwala Case Number: MCCC/E031/2024, Moses Richard Owuor -Versus- Oreka Godweince Omolo be set aside in entirety.
c) The Honourable Court be persuaded to order and declare that the Appellant is entitled to claim and prayers sought as against the Respondent in Ukwala Case Number: MCCC/E031/2024 and do order as so as submitted vide Submissions dated 21st August, 2025.
d) The Honourable Court does issue such orders and give such direction as it may consider appropriate to meet the ends of justice.
3. This being the first appellate Court, its duty is well spelt out to re-evaluate the evidence tendered before the trial Court and to arrive at its own independent conclusion. The Court will also have to take into account the fact that it did not see or hear the witnesses as they testified. See Selle vs Associated Motor Boat Company Limited (1968(E. A. 123.)
4. The Appellant had lodged suit vide a plaint dated 8 th April 2024 in which he sought for the following reliefs; -
i) Kshs. 122, 000/= plus interest at 20% per month from 19 th October 2022.
ii) Lost opportunity to purchase land title No. UHOLO/UGUNJA/3535 (0.28Ha).
iii) Compensation for inconveniences in a promising land transaction.
iv) General and punitive damages given that the sale agreement was termination due to no fault of the Appellant but the Defendant’s fault and greed.
v) Punishment and fine for masquerading as a lawyer/advocate in a conveyancing transaction.
vi) Costs of the suit.
5. The Respondent filed a statement of defence dated15/7/2025 and sought for the dismissal of the Appellant’s suit with costs.
6. The trial commenced in earnest on 12/7/2024.
7. Moses Richard Owuor (PW1) adopted is written statement and list of documents dated 8 th April 2024 as his evidence in chief. He further stated that he was in court after the Defendant had cancelled the Sale Agreement he had entered into but had failed to fully refund the purchase price. That he knew the Defendant as an Advocate and he was the one who drew the Agreement. That the Sale Agreement was drawn by ODHIAMBO ONYANGO & CO. ADVOCATES. That the person he met is the one who signed the Agreement and it was GODWENCE OMOLO OREKA, the Defendant. That the cancellation was made by ODHIAMBO ONYANGO. It was the Defendant who signed the cancellation on his behalf. The Defendant informed him that he had received the sum of Kshs.300,000/= on his behalf and he should go and collect it. As per the Deed of Acknowledgement, the Defendant confirms that he was a clerk in the firm of ODHIAMBO ONYANGO ADVOCATES. After consultation with his Advocate, he came to collect the money but the Defendant did not have the entire amount. That they entered into an "I OWE YOU AGREEMENT" whereby the Defendant was to pay him by December but he did not receive the payment. The 20% interest was agreed upon in the I OWE YOU AGREEMENT. The Defendant was to pay the sum of Kshs.140,000/= by end of December 2022. He only paid Kshs.32,000/=. In February, he paid Kshs.24,000/= and in May 2024, he paid Kshs.70,000/= via M-Pesa. By then the Agreement had expired and the suit already filed.
On cross examination, he confirmed that the Sale Agreement was between himself and Mary Otieno Obai. The Advocate was Odhiambo Onyango. He did not conduct a search to confirm if the Defendant was an Advocate. He could not confirm when he received the sum of Kshs.178,000/=. He went to collect the money from the Defendant. The Defendant sent him Kshs.155,000/= through KCB Bank. On 30 th June 2023, he received Kshs.100,000/=. The “I owe you agreement” is dated 4 th July 2023. The amount in issue was Kshs.100,000/= which was owed to him by then. After 4 th July 2023, he has received some money from the Defendant. In total he has received Kshs.116,500/= from 4 th July 2023 to date. That from 30 th June 2023 to date, he has received Kshs.126,500/=.
On re-examination, he stated that he used to meet the Defendant at the offices of Odhiambo Onyango Advocate’s offices at Ugunja. That the Defendant was acting as an Advocate. That he is the one who used to send him the money and thus a confirmation that he was the one doing the transaction. That he did not sign the cancellation agreement. That he was to pay Kshs 140,000/ which he did not.
8. Oreka Godwence Omolo (DW1) was the Respondent herein. He adopted his written statement and list of documents filed on 6 th August 2025 as his evidence in-chief. He further stated that he works as clerk at the office of Odhiambo Onyango & Co. Advocates. He acted as an intermediary between the Plaintiff (Buyer) and the Seller and he was a witness. The two parties went to their office for the Sale Agreement. The parties signed the Agreement. After some time, the seller complained that they had disagreed with the buyer for not meeting their obligation under the Sale Agreement. He was aware of the cancellation of the Sale Agreement as the seller went to their offices and left there the money that had been paid to them as part of the purchase price stating that they were no longer interested in the Agreement. The seller surrendered Kshs.300,000/=. He contacted the Plaintiff and informed him of the position but the Plaintiff responded that he was not interested in the cancellation. The Plaintiff did not collect the money immediately but came after a month. By then, he did not have the entire amount. He paid him Kshs.175,000/= through KCB since he was the one in custody of the money. They agreed that he would pay the balance of Kshs.125,000/= within a certain period. Prior to the I OWE YOU AGREEMENT, he had paid some money to the Plaintiff. At the time of entering into the I OWE YOU AGREEMENT, he did not have the money and the Plaintiff insisted that he would round of the balance to a round figure of Kshs.100,000/=. By then he owed him about Kshs.70,000/=.
On cross examination, he confirmed that there was a Sale Agreement which he witnessed though he did not sign it. He received the money on behalf of the Plaintiff since he was the one who knew him. He connected the Plaintiff to the Vendor. He knew the Vendor as she was a family friend. The Vendor complained that the Plaintiff wanted to collect rent from the tenants on the sold property yet he had not paid even the second instalment. He was asked to contact the Plaintiff and he received the money on his behalf. He signed the I OWE YOU AGREEMENT which was to run up to December 2023. He did not pay the full amount as he did not have the full amount at the time the Plaintiff came to collect the money.
9. That marked the end of the Respondent’s case.
10. The learned trial magistrate later considered the evidence an came up with the impugned judgement.
11. The appeal was canvassed by way of written submissions. However, it is only the Appellant who complied.
12. The Appellant opted to submit on each ground of appeal. On the first ground of appeal, it is the Appellant’s submissions that the claim for Kshs. 122,000 was not paid by the Respondent and remains unpaid as the Respondent did not adduce any evidence that he indeed paid the said sum as per the terms of “I owe you agreement” on record. By relying on uncorroborated and doctored m-pesa statement and third party’s payments to the Appellant the learned trial Magistrate erred in law and in fact by finding that unsubstantiated payment Kshs. 126,500 was in settlement of the Kshs. 122,000 claim thereby casualization of a judicial process to the detriment of the Appellant. That the third parties had paid Kshs. 127,500 to the Appellant on matters that were not related to “I Owe You Agreement”. That the evidence on record show how the Respondent desperately tried to doctor electronic evidence and m-pesa statement to match the Kshs. 122,000. The trial court failed to act judiciously and subject the m-pesa statement and payment print outs to judicial scrutiny.
13. On second ground of appeal, it is the Appellant’s contention and submissions that the Respondent’s M-Pesa Evidence and payment print outs did not directly prove that the alleged payments of Kshs. 126,500 (actual Kshs. 127,500) was made by the Respondent to the Appellant. Daniel Oloo, Fredrick Owuor, Emmaculate Ochieng, Vintage Distributors, Fredrick Otieno Owour, Rodgers Ahura, Joyce Ogutu, Dalton Otieno, Meshack Onyango, Stephen Onyango and Manna Lifestyle Ugunja were not parties to the claim and were not witnesses in the trial court. Payment of Kshs. 122,000 was not proved by the Respondent.
14. On third ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by computing Kshs. 126,500 as having being paid by 4th March, 2024, which computation was wrong both in fact and in law contrary to the party’s pleadings and evidence that as of 8th April, 2024, the Respondent had not paid any single cent out of the “I owe you agreement” dated 4/07/2023.There are no evidence on record to show and match that the Respondent in deed paid Kshs. 122,000 claim to the Appellant.
15. On Fourth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by proceeding to find that the amount of money due and owing to the Appellant was Kshs. 14,000 and in fact that the Respondent had overpaid an excess of Kshs. 4,500 which proceeding and findings were contradictory findings and conclusion in one judgment to the detriment of the Appellant. The Appellant’s Claim of Kshs. 122,000 against the Respondent remains unpaid to date. There is no way the trial court could find that the Respondent was owing the Appellant Kshs. 14,000 but still proceed to state that the Respondent had overpaid by Kshs. 4,500. It is the Appellant’ s submissions that the trial court’s judgement is a contradiction to exercise of judicial power and abdication of judicial functions by a judicial officer. The outstanding amount was Kshs, 122,000 and not Kshs. 14,000. There was no overpayment of Kshs. 4,500 made by the Respondent to the Appellant. The m-pesa statement and payment print out messages were from Daniel Oloo, Fredrick Owuor, Emmaculate Ochieng, Vintage Distributors, Fredrick Otieno Owour, Rodgers Ahura, Joyce Ogutu, Dalton Otieno, Meshack Onyango, Stephen Onyango and Manna Lifestyle Ugunja excluding the Appellant.
16. There was no evidence and witness statement that indeed the Respondent paid Kshs. 126,500 to the Appellant as alleged in satisfaction of Kshs. 122,000 claim. Consequently, the learned trial Magistrate misdirected himself and erred in law and fact in delivering a judgement that is contradicting and in conflict with the constitution, the law and evidence before it to the detriment of the Appellant. The High Court has the authority to review trial court decisions on the admissibility of doctored payments print outs and is now called upon to overturn them if deemed incorrect or unjust to a party.
17. On fifth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by depriving the Appellant constitutional right to institute a suit on the ground that the Appellant was to demand Kshs.14, 000 and not to insist on a suit upon receipt of Kshs. 70,000, yet the suit was filed on 8th April, 2024 and the Kshs. 70,000 paid on or about 13th May, 2024 more than one month after the suit was filed. This was a clear misapprehension of the claim, the fact and issues of the case in dispute thereby leading to contradictory findings and conclusion in one judgment to the detriment of the Appellant. One Stephen Onyango (pages 55 & 56 of the Record of Appeal) paid Kshs. 70,000 on 13/05/2024 at 1.04 p.m. The said Stephen Onyango was not a party to the dispute and was not called by the Respondent as a witness to testify in the trial court. The trial court did not appreciate and failed or ignored to understand the claim before him thereby arriving at wrong analysis and conclusion of fact that the Appellant ought to have demanded Kshs. 14,000 instead of instituting the suit.
18. On sixth ground of appeal, it is the Appellant’s contention and submissions that the learned trial Magistrate erred in law and in fact by ignoring the law and facts on the Agreement for sale dated 19/10/2022, cancellation of a sale of land agreement dated 18/05/2023, a deed of acknowledgment dated 18/05/2018, I owe you agreement dated 4/07/2023 and unilateral variation of payments modes thereof that were solely drawn ,signed and executed by the Respondent and the repayments of funds received by the Respondent therefrom at the Respondent’s own convenient into a debtor-creditor relationship to the detriment of the Appellant. The trial magistrate was casual and reckless in undertaking his judicial duties under Article 169 of the Constitution 2010. The Respondent was the brain and architecture of the purchase of land number Uholo/Ugunja/3535 (0.282 Ha), just the same w
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