REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E005 OF 2025
RAPHAEL WALTER LOBOYWA T/A
LUANDA GLASSMART……………………………………………….….APPELLANT
VERSUS
MARGARET OKEMO…………………………………………………..RESPONDENT
(Being an appeal from the Judgement and Decree of Hon J. A. Agonda (PM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No 55 of 2019 on 23 rd January 2025
JUDGMENT
INTRODUCTION
1. In her decision of 23 rd January 2025, the Learned Trial Magistrate, Hon J. A. Agonda, Principal Magistrate, allowed the Respondent’s claim and entered judgment in her favour against the Appellant for the sum of Kshs 286,000/= plus costs of the suit and interest at court rates from the date of filing (sic) the judgement until the date of payment in full.
2. Being aggrieved by the said decision, on 6 th February 2025, the Appellant herein filed a Memorandum of Appeal of even date. He relied on seven (7) Grounds of Appeal.
3. His Written Submissions were dated and filed on 24 th July 2025 while those of the Respondent’s submissions dated 28 th July 2025 were filed on 30 th July 2025. The Judgment herein is, therefore, based on the said Written Submissions which parties both relied upon in their entirety.
LEGAL ANALYSIS
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
5. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
6. Having looked at the Grounds of Appeal Nos (1), (2), (3), (4), (5), (6) and (7) and the Appellant’s Written Submissions, it appeared to this court that all the grounds of appeal were related and the issue that had been placed before it for determination was whether or not the Trial Court erred in entering judgment in favour of the Respondent. The court, therefore, dealt with all the Grounds of Appeal together.
7. The Appellant faulted the Trial Court for failing to consider that he had paid a sum of Kshs 157,860/= as was evidenced by his Mpesa statement and that in her submissions, the Respondent admitted to having received part payment in the sum of Kshs 72,680/=. He pointed out that she was claiming Kshs 241,320/= which contradicted the amount she claimed in her pleadings.
8. He added that the Respondent failed to produce a valid contract of any loan agreement between her and the Appellant. He asserted that she gave him money in exchange of land yet she did not produce any sale agreement. He was emphatic that the documents that she produced failed to meet the threshold of a land sale agreement and hence, she failed to prove her case on a balance of probability. It was his submission that the agreement dated 7 th August 2015 did not meet the threshold of the requirements of Section 3(3) of the Law of Contracts Act since he did not sign the said document.
9. He also faulted the Trial Court for finding that the agreements were valid yet they were signed under duress and having not been signed freely, they were not binding between the parties. He asserted that he signed the agreements under undue influence since he was arrested several times and coerced into writing the agreements at the Police Stations to secure his release every time. He averred that the Respondent also confirmed having reported him at Luanda Police Station where agreements were written and he was directed to commit himself by writing an acknowledgement to secure his freedom.
10. He cited the case of Nabro Properties Limited vs Sky Structures Limited (Z.R Shan) South fork Investment Limited (1986) eKLR, Amesnet Enterprises Limited & 2 others vs Susan Wanjiru Wangendo [2021] eKLR amongst other cases where the common thread was that undue influence or coercion vitiates consent.
11. He further submitted that the Trial Court erred by finding that the loan and land agreements were signed in presence of his advocate without any proof. He asserted that the Respondent merely mentioned that the advocate was present at the police station yet his advocate neither signed the agreement nor drew the said agreements. It was his contention that if indeed his advocate was present, he ought to have drafted or signed the agreement. He urged this court to set aside the orders of the Learned Trial Magistrate and allow the appeal with costs of the lower court and appeal to him.
12. On her part, the Respondent submitted that the Appellant admitted to having received money from her and that he signed the Loan Agreement dated 26 th September 2015 acknowledging that he owed her a sum of Kshs 214,000/=, which was made up of Kshs 140,000/= of the loan agreement dated 26 th September 2014 and acknowledgment of loans of Kshs 74,000/= and Kshs 70,000/= amounting to Kshs 284,000/=.
13. She submitted that she proved through M-pesa statement that the Appellant refunded her a total of Kshs 42,680/= and not Kshs 157,860/= as he alleged leaving a balance of Kshs 241,320/=. She asserted that he failed to prove payment of Kshs 30,000/= and Kshs 42,680/= through his employee as he had alleged and other payments of Kshs 61,860/= and Kshs 66,000/=. She stated that the Trial Court’s order that the Appellant refunds the total Kshs 284,000/= was a typographical error as the amount ought to have been Kshs 214,320/=.
14. She contended that although the Appellant claimed to have signed the agreements under duress, he failed to protest or take any remedy to arrest the threats or take any further steps to avoid them. She argued that having made part payments and signed the loan agreements, this was a clear indication of liability and therefore, he could not claim to have been under duress when the signing of the loan agreements. It was her submission, that the said loan agreements were, therefore, valid contracts.
15. She added that the Appellant failed to adduce evidence to back up his claims that the agreements were a land agreement and not loan agreement as she had demonstrated. She explained that the Appellant undertook to repay the money he owed her and that the sale of land to her was to take place upon his failure to refund the money, which he further failed to do. It was her argument that the Trial Court properly evaluated the agreements and came to the reasonable interpretation supported by evidence produced herein.
16. In the Plaint dated 4 th April 2019 and filed on 5 th April 2019, the Respondent averred that on 18 th June 2013, the Appellant borrowed a sum of Kshs 50,000/= which he promised to refund within two (2) weeks from the date thereof. She further stated that on 26 th September 2014, he borrowed a sum of Kshs 140,000/= which he undertook to refund by the month of January 2015 at the rate of ten (10% ) per cent per annum and that in the month of August 2015, he undertook to pay her Kshs 74,000/= being the accrued profit from the month of April to August 2015 from the sale of her glass in his business premises at Luanda Glassmatt.
17. She added that he undertook to refund to her a sum of Kshs 50,000/= being the amount deposited as capital in his business, Luanda Glassmatt for the purchase of glasses and selling the same for her at a profit. She pointed out that he only refunded her a sum of Kshs 48,000/= leaving a balance of Kshs.2,000/=, which he failed to refund.
18. She, therefore, prayed for Kshs 146,000/= together with interest at court rate of fourteen (14%) per cent per annum from the date of filing the suit and Kshs 140,000/= together with interest at the rate of ten (10%) per cent per annum from the month of September 2015 and costs of the suit together with interest.
19. On his part, the Appellant filed a defence dated 7 th May 2019 and filed on 8 th May 2019. He stated that he was cohabiting with the Respondent as wife and husband and on that basis, she deposited Kshs 70,000/= in the business account to boost the business hence, the same was not refundable. He denied ever having received Kshs 74,000/=, Kshs 140,000/= or Kshs 50,000/=.
20. He explained how he was arrested by the Police and coerced to sign an agreement dated 26 th September 2014 alleging that he owed the Respondent Kshs 140,000/= which he paid to the Respondent Kshs 66,000/= and again by the Assistant County Commissioner when he was forced to commit himself to pay a sum of Kshs 74,000/= on or before 30 th September 2015. He added that he was arrested on 17 th September 2015 and was coerced to sign an agreement stating that he had committed to pay Kshs 214,000/= to the Respondent on or before 17 th January 2016. It was his contention that he faced threats and intimidation by administration police before he signed the alleged agreement dated 17 th September 2015.
21. He contended that he paid the Respondent via Mpesa transactions the sum of Kshs 10,200/=, Kshs 61,000/= and Kshs 66,000/= at Luanda Police Station. He stated that on 8 th April 2016, he gave the Respondent’s shop attendant one Gabriel Opanga, Kshs 30,000/=. He contended that Kshs 61,000/=, Kshs 66,000/= and Kshs 30,000/= amounted to Kshs 157,860/= which was above the amount he committed to pay vide the agreement made on 26 th September 2014 at Luanda Police station.
22. Both the Appellant and the Respondent restated their evidence in their respective Written Submissions. This court noted that the Appellant acknowledged having received monies from the Respondent herein. It perused the Mpesa statements that he adduced as evidence and the court did not see the payments he alluded to. The court saw several figures that amounted to Kshs 21,970/=. Notably, his assertions that he the agreements under duress was not brought up when he was cross-examined.
23. In the case of Hellen Wangari Wangechi vs Carumera Muthoni Gathua (2015) KEHC 1758 (KLR), the court therein found that an agreement that was made in the police station was made under duress. In the case of Simon Kamau Gatuhi vs Stephen Wainaina Kamonjo & Another (2017) KEELC 1648 (KLR), the court therein declined to enforce an agreement that it deemed to have been obtained by intimidation and coercion.
24. This court wholly associated itself with the said cases and found and held that signing agreements for repayment of monies at a police station and before a county commissioner was intimidating. It was not clear why the Appellant was been taken to a County Commissioner’s office. The matter seemed to have been civil in nature and hence arresting the Appellant persuaded this court to find and hold that he signed the agreements under duress which vitiated consent. It was difficult for this court to ascertain exactly how much the Appellant owed the Respondent, if at all, as the commitments were made in an intimidating environment.
25. It was this court’s considered view that the Respondent failed to prove her claim to the required standard, which in civil cases, was proof on a balance of probability.
DISPOSITION
26. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal lodged on 6 th February 2025 was merited and the same be and is hereby allowed. The effect of this order is that the judgment delivered on 23 rd January 2025 and all consequential orders be and are hereby set aside.
27. To avoid further strain between the Appellant and the Respondent herein, it is hereby directed that each party will bear its own costs of this Appeal herein.
28. It is so ordered.
DATED and DELIVERED at VIHIGA this 28 th day of April 2026
J. KAMAU
JUDGE
HCCA NO E005 OF 202512
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E005 OF 2025
RAPHAEL WALTER LOBOYWA T/A
LUANDA GLASSMART……………………………………………….….APPELLANT
VERSUS
MARGARET OKEMO…………………………………………………..RESPONDENT
(Being an appeal from the Judgement and Decree of Hon J. A. Agonda (PM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No 55 of 2019 on 23 rd January 2025
JUDGMENT
INTRODUCTION
1. In her decision of 23 rd January 2025, the Learned Trial Magistrate, Hon J. A. Agonda, Principal Magistrate, allowed the Respondent’s claim and entered judgment in her favour against the Appellant for the sum of Kshs 286,000/= plus costs of the suit and interest at court rates from the date of filing (sic) the judgement until the date of payment in full.
2. Being aggrieved by the said decision, on 6 th February 2025, the Appellant herein filed a Memorandum of Appeal of even date. He relied on seven (7) Grounds of Appeal.
3. His Written Submissions were dated and filed on 24 th July 2025 while those of the Respondent’s submissions dated 28 th July 2025 were filed on 30 th July 2025. The Judgment herein is, therefore, based on the said Written Submissions which parties both relied upon in their entirety.
LEGAL ANALYSIS
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
5. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
6. Having looked at the Grounds of Appeal Nos (1), (2), (3), (4), (5), (6) and (7) and the Appellant’s Written Submissions, it appeared to this court that all the grounds of appeal were related and the issue that had been placed before it for determination was whether or not the Trial Court erred in entering judgment in favour of the Respondent. The court, therefore, dealt with all the Grounds of Appeal together.
7. The Appellant faulted the Trial Court for failing to consider that he had paid a sum of Kshs 157,860/= as was evidenced by his Mpesa statement and that in her submissions, the Respondent admitted to having received part payment in the sum of Kshs 72,680/=. He pointed out that she was claiming Kshs 241,320/= which contradicted the amount she claimed in her pleadings.
8. He added that the Respondent failed to produce a valid contract of any loan agreement between her and the Appellant. He asserted that she gave him money in exchange of land yet she did not produce any sale agreement. He was emphatic that the documents that she produced failed to meet the threshold of a land sale agreement and hence, she failed to prove her case on a balance of probability. It was his submission that the agreement dated 7 th August 2015 did not meet the threshold of the requirements of Section 3(3) of the Law of Contracts Act since he did not sign the said document.
9. He also faulted the Trial Court for finding that the agreements were valid yet they were signed under duress and having not been signed freely, they were not binding between the parties. He asserted that he signed the agreements under undue influence since he was arrested several times and coerced into writing the agreements at the Police Stations to secure his release every time. He averred that the Respondent also confirmed having reported him at Luanda Police Station where agreements were written and he was directed to commit himself by writing an acknowledgement to secure his freedom.
10. He cited the case of Nabro Properties Limited vs Sky Structures Limited (Z.R Shan) South fork Investment Limited (1986) eKLR, Amesnet Enterprises Limited & 2 others vs Susan Wanjiru Wangendo [2021] eKLR amongst other cases where the common thread was that undue influence or coercion vitiates consent.
11. He further submitted that the Trial Court erred by finding that the loan and land agreements were signed in presence of his advocate without any proof. He asserted that the Respondent merely mentioned that the advocate was present at the police station yet his advocate neither signed the agreement nor drew the said agreements. It was his contention that if indeed his advocate was present, he ought to have drafted or signed the agreement. He urged this court to set aside the orders of the Learned Trial Magistrate and allow the appeal with costs of the lower court and appeal to him.
12. On her part, the Respondent submitted that the Appellant admitted to having received money from her and that he signed the Loan Agreement dated 26 th September 2015 acknowledging that he owed her a sum of Kshs 214,000/=, which was made up of Kshs 140,000/= of the loan agreement dated 26 th September 2014 and acknowledgment of loans of Kshs 74,000/= and Kshs 70,000/= amounting to Kshs 284,000/=.
13. She submitted that she proved through M-pesa statement that the Appellant refunded her a total of Kshs 42,680/= and not Kshs 157,860/= as he alleged leaving a balance of Kshs 241,320/=. She asserted that he failed to prove payment of Kshs 30,000/= and Kshs 42,680/= through his employee as he had alleged and other payments of Kshs 61,860/= and Kshs 66,000/=. She stated that the Trial Court’s order that the Appellant refunds the total Kshs 284,000/= was a typographical error as the amount ought to have been Kshs 214,320/=.
14. She contended that although the Appellant claimed to have signed the agreements under duress, he failed to protest or take any remedy to arrest the threats or take any further steps to avoid them. She argued that having made part payments and signed the loan agreements, this was a clear indication of liability and therefore, he could not claim to have been under duress when the signing of the loan agreements. It was her submission, that the said loan agreements were, therefore, valid contracts.
15. She added that the Appellant failed to adduce evidence to back up his claims that the agreements were a land agreement and not loan agreement as she had demonstrated. She explained that the Appellant undertook to repay the money he owed her and that the sale of land to her was to take place upon his failure to refund the money, which he further failed to do. It was her argument that the Trial Court properly evaluated the agreements and came to the reasonable interpretation supported by evidence produced herein.
16. In the Plaint dated 4 th April 2019 and filed on 5 th April 2019, the Respondent averred that on 18 th June 2013, the Appellant borrowed a sum of Kshs 50,000/= which he promised to refund within two (2) weeks from the date thereof. She further stated that on 26 th September 2014, he borrowed a sum of Kshs 140,000/= which he undertook to refund by the month of January 2015 at the rate of ten (10% ) per cent per annum and that in the month of August 2015, he undertook to pay her Kshs 74,000/= being the accrued profit from the month of April to August 2015 from the sale of her glass in his business premises at Luanda Glassmatt.
17. She added that he undertook to refund to her a sum of Kshs 50,000/= being the amount deposited as capital in his business, Luanda Glassmatt for the purchase of glasses and selling the same for her at a profit. She pointed out that he only refunded her a sum of Kshs 48,000/= leaving a balance of Kshs.2,000/=, which he failed to refund.
18. She, therefore, prayed for Kshs 146,000/= together with interest at court rate of fourteen (14%) per cent per annum from the date of filing the suit and Kshs 140,000/= together with interest at the rate of ten (10%) per cent per annum from the month of September 2015 and costs of the suit together with interest.
19. On his part, the Appellant filed a defence dated 7 th May 2019 and filed on 8 th May 2019. He stated that he was cohabiting with the Respondent as wife and husband and on that basis, she deposited Kshs 70,000/= in the business account to boost the business hence, the same was not refundable. He denied ever having received Kshs 74,000/=, Kshs 140,000/= or Kshs 50,000/=.
20. He explained how he was arrested by the Police and coerced to sign an agreement dated 26 th September 2014 alleging that he owed the Respondent Kshs 140,000/= which he paid to the Respondent Kshs 66,000/= and again by the Assistant County Commissioner when he was forced to commit himself to pay a sum of Kshs 74,000/= on or before 30 th September 2015. He added that he was arrested on 17 th September 2015 and was coerced to sign an agreement stating that he had committed to pay Kshs 214,000/= to the Respondent on or before 17 th January 2016. It was his contention that he faced threats and intimidation by administration police before he signed the alleged agreement dated 17 th September 2015.
21. He contended that he paid the Respondent via Mpesa transactions the sum of Kshs 10,200/=, Kshs 61,000/= and Kshs 66,000/= at Luanda Police Station. He stated that on 8 th April 2016, he gave the Respondent’s shop attendant one Gabriel Opanga, Kshs 30,000/=. He contended that Kshs 61,000/=, Kshs 66,000/= and Kshs 30,000/= amounted to Kshs 157,860/= which was above the amount he committed to pay vide the agreement made on 26 th September 2014 at Luanda Police station.
22. Both the Appellant and the Respondent restated their evidence in their respective Written Submissions. This court noted that the Appellant acknowledged having received monies from the Respondent herein. It perused the Mpesa statements that he adduced as evidence and the court did not see the payments he alluded to. The court saw several figures that amounted to Kshs 21,970/=. Notably, his assertions that he the agreements under duress was not brought up when he was cross-examined.
23. In the case of Hellen Wangari Wangechi vs Carumera Muthoni Gathua (2015) KEHC 1758 (KLR), the court therein found that an agreement that was made in the police station was made under duress. In the case of Simon Kamau Gatuhi vs Stephen Wainaina Kamonjo & Another (2017) KEELC 1648 (KLR), the court therein declined to enforce an agreement that it deemed to have been obtained by intimidation and coercion.
24. This court wholly associated itself with the said cases and found and held that signing agreements for repayment of monies at a police station and before a county commissioner was intimidating. It was not clear why the Appellant was been taken to a County Commissioner’s office. The matter seemed to have been civil in nature and hence arresting the Appellant persuaded this court to find and hold that he signed the agreements under duress which vitiated consent. It was difficult for this court to ascertain exactly how much the Appellant owed the Respondent, if at all, as the commitments were made in an intimidating environment.
25. It was this court’s considered view that the Respondent failed to prove her claim to the required standard, which in civil cases, was proof on a balance of probability.
DISPOSITION
26. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal lodged on 6 th February 2025 was merited and the same be and is hereby allowed. The effect of this order is that the judgment delivered on 23 rd January 2025 and all consequential orders be and are hereby set aside.
27. To avoid further strain between the Appellant and the Respondent herein, it is hereby directed that each party will bear its own costs of this Appeal herein.
28. It is so ordered.
DATED and DELIVERED at VIHIGA this 28 th day of April 2026
J. KAMAU
JUDGE
HCCA NO E005 OF 202512