(Being an Appeal against the Judgment by Hon. J.W. Nasimiyu in Nairobi SCCC No. E24302/2024 Delivered on 5th May, 2025).
1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together.
2. Hereunder, I submit toward the most eloquent jurisprudential decisions, so often repeated, and yet bear repetition from the same family, on the duties of an appellate Court.
3. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
4. In Rook Vs Rairrie [1941] 1 ALL E.R. 297, the principles which guide an appellate court, were echoed with approval by the Court of Appeal in Butt Vs Khan [1981] KLR 349 when it held as per Law, J.A that an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
5. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
6. In the primary suit, Toni Grossman (CW1) adopted his witness statement as his testimony in the matter. Additionally, he produced documents in the list of documents as exhibits respectively. By an agreement dated 6th February, 2023, the Claimant entered into an agreement with the Respondent wherein the Claimant advanced the Respondent a sum of Two Hundred and Fifty Thousand (Kshs250,000/). A refund was agreed at a monthly sum of Kshs12,500/= for a period of 30 months. This agreement was revised where parties agreed to have the Respondent do a monthly payment of Kshs20,000/= for 30 months totalling to a sum of Kshs600,000/. The Claimant has never paid any monies.
7. In support of her case, the Claimant produced E&E Loan Agreement as exhibit 1, Loan Addendum dated 3rd October, 2023 as exhibit 2 and WhatsApp’s screen shot as exhibit 3.
8. The Respondent Shaleen Mwihaki Mwenda (RW1) adopted her witness statement as her testimony and documents in the list of documents as Exhibits in this matter. She told court that the Claimant offered to fund a project by way of training on entrepreneurship, the agreement was to be governed by the laws of Kenya and that all the assets purchased from the fund would form security for the grant advanced.
9. Consequent to the funding, the Respondent constructed a pigsty at a cost of Kshs330,923 and spent a sum of Kshs88,000/ covering purchase of pigs, their feed and covering Farm’s expenses between 23rd March 2023 to 30th December 2023. Despite all efforts to keep the project afloat, it collapsed due to por growth of the pigs, financial constraints and high operational costs.
10. The Respondent says that she has no intention to dishonour anyone and the only assets on the project are the construction materials for pig and the pig’s hog toy. Additionally, the Claimant had filed another suit in Meru. In support of her case, the Claimant produced a book of accounts as exhibit 1, Receipts as Exhibit 2 and a copy of the statement of Claim filed at Meru Small Claims Court as Exhibit 3.
11. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal on the following grounds;
a. That the Learned Resident Magistrate erred in law and fact by condemning the appellant to pay money received under an agreement notwithstanding, that the agreement expressly provided that the security for the advanced funds was the assets purchased thereunder.
b. That the Learned Resident Magistrate erred in law and fact by departing from the express terms of contract and purporting to rewrite the agreement between the parties. In so doing, the court failed to appreciate the security expressly provided for under the agreement, thereby exposing the appellant to unjust and un intended liability.
c. That the Learned Resident Magistrate erred in law and fact by effectively substituting the court’s view for the clear intentions of the contracting parties by failing to give due consideration to the fact the said funds were to be recovered solely from the proceeds of the funded project, which untimely failed through no fault of the appellant, an acknowledged fact.
d. That the Learned Resident Magistrate erred in law and fact by in enforcing an agreement entered into by an unregistered charity Organization, thereby giving effect to a legally invalid and unenforceable contract.
e. That the Learned Resident Magistrate erred in law and fact by failing to consider the legal implications and practical impact of enforcing an agreement involving a charitable organization operating without legal registration.
f. That the Learned Resident Magistrate failed to appreciate or take judicial notice of the public interest and essential role played by charitable organizations in Kenya which was a relevant consideration in the matter.
g. That the Learned Resident Magistrate erred in law and fact by assuming and exercising Jurisdiction over a matter that fell outside the territorial jurisdiction of the court.
h. That the Learned Resident Magistrate decision was against the weight of the evidence adduced and failed to properly apply the principles of equity and fairness in the circumstances.
i. That the learned Magistrate erred in law and in exercise of her mandate failed to do equity and justice to the appellant.
12. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
13. This court notes that the appellant settled on 8 grounds for determination. However, looking at the totality of the grounds, I opine to collapse them into one; whether or not the Respondent proved his case on a balance of probability.
14. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: “Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.” Section 109 states 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 the fact shall lie on any particular person” Section 112 reads “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.”
15. In Anne Wambui Ndiritu Vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: “ As a general proposition under section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
16. Many are the decisions on contracts and whereas I may not be able to exhaustively sample them in this Judgement, I find the following passages apposite to act as my anchorage.
17. In Rufale Vs Umon Manufacturing Co. (Ramsboltom) (1918) L.R 1KB 592 , Scrutton L.J. held as follows: “The first thing is to see what the parties have expressed in the contract and then an implied term is not to be added because the court thinks it would have been reasonable to have inserted it in the contract.”
18. In the case of Attorney General of Belize et al Vs Belize Telecom Ltd & Another (2009), 1WLR 1980 at page 1993, citing Lord Person in Trollope Colls Ltd Vs North West Metropolitan Regional Hospital Board (1973) I WLR 601 at 609, held as follows: “The court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves. If the express terms are perfectly clear and from ambiguity, there is no choice to be made between different meanings. The clear terms must be applied even if the court thinks some other terms could have been more suitable.”
19. The importance of interpreting contracts strictly was further reiterated in the case of Curtis Vs Chemical Cleaning & Dyeing Co. Ltd (1951), ALL ER 631 in which Lord Denning held as follows: “ If a party affected signs a written document, knowing it to be a contract which governs the relations between him and the other party, his signature is irrefragable evidence of his assent to the whole contract, including exception clauses, unless the signature is shown to be obtained by fraud or misrepresentation.”
20. The claim arises out of a contract and as such, the court must be cautious not to re-write a contract for the parties. Put differently, the court shall at all times in the absence of any contrary evidence, be guided by the terms of the contract in any contractual claim and give effect to the intentions of the parties as set out in their contract.
21. Undisputedly, parties in this claim agreed to set out the terms in their agreement dated 6th February, 2023. Later on 3rd October, 2023, it was revised by way of an addendum in respect of the monthly repayments of Kshs20,000/ per month instead of Kshs12,500/ monthly as parties had agreed to increase the principal loan by a further sum of Kshs150,00/. It is also in evidence that the Respondent has not paid any monies in terms of the repayment terms. That is to say from 6th February 2023, there has been no repayment due from the Respondent. This was a breach of the terms of contract under clause V1 and V11 of the E&E Charity Grant and Loan Agreement.
22. In the event of default in repayment, parties had agreed to have security by use of assets as captured under Clause VIII and IX. It provides “VIII. Security: As part of this agreement, the borrower agrees to pledge as security. The borrower agrees to secure this agreement by pledging the following collateral: all assets bought from the given funds. NB. All receipts should read the charity’s name as the purchaser of the assets” “IX. Use of assets: The assets shall be used as promised, planned or descripted in the allocation process. If the assets are used differently or the use is not proven or communicated appropriately, the contract itself loses its base and the funds must be paid back immediately including the interest”
23. The court has perused the witness statement and the list of documents of the Respondent. I do not trace any assets as contemplated by this agreement. Besides, the Respondent has not exhibited the assets in line with clause VIII and IX of the contract. This no doubt, is a breach of the contract terms.
24. It is important to note that the running of the project was not part of the contract terms. It was a sole responsibility by the appellant and the Claimant had no role in that realm. Whether one made profits or losses, was not part of a consideration in this contract. The role of the Claimant was to advance monies on terms to a borrower for her project.
25. Whereas the assets of the project were at the center of security, it is worthwhile to note the nature of the assets contemplated in the agreement were supposed to be purchased in the name of the Charity Organization. Differently put, the receipts were supposed to bear the name of the Claimant. The court has read all the exhibits produced within the lines and I see no single asset in the name of the Claimant. This is also a breach of the Contract terms.
26. Intriguingly, the Respondent frustrated the Claimant by failing to repay the loan and or adhere to the default clause by failing to purchase the assets in the name of the Claimant. The Claimant has no assets to fall back as a mode of recovery of his monies. However, all is not lost. Clause X provides “ this agreement shall be construed and governed by the laws in place in Kenya”
27. The interpretation of the case laws in Kenya as well as the relevant provisions of Civil Procedure Act and Rules is that when a party admits a debt, then judgement ought to be entered. In her witness statement at paragraph 3, the Respondent states “I have no reason whatsoever to dishonor my lawful obligation to anyone. The only available assets on the project are the construction materials for the pigsty and the pig’s hog toys.” This is a clear admission of the debt. In Choitram Vs Nazari (1984) KLE 327 that; - “...admissions have to be plain and obvious as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning.” Chesoni Ag. JA went on to add that: “...an admission is clear if the answer by a by-stander to the question whether there was an admission of facts would be ‘of course, there was’
28. Putting all these together, I make the following findings;
a. The Appeal lacks merit and it is dismissed.
b. Cost of the appeal to the Respondent.
Judgement delivered in Court virtually in the presence of the Court Assistant Mr Sagasi this 9th September, 2026.
1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together.
2. Hereunder, I submit toward the most eloquent jurisprudential decisions, so often repeated, and yet bear repetition from the same family, on the duties of an appellate Court.
3. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
4. In Rook Vs Rairrie [1941] 1 ALL E.R. 297, the principles which guide an appellate court, were echoed with approval by the Court of Appeal in Butt Vs Khan [1981] KLR 349 when it held as per Law, J.A that an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
5. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
6. In the primary suit, Toni Grossman (CW1) adopted his witness statement as his testimony in the matter. Additionally, he produced documents in the list of documents as exhibits respectively. By an agreement dated 6th February, 2023, the Claimant entered into an agreement with the Respondent wherein the Claimant advanced the Respondent a sum of Two Hundred and Fifty Thousand (Kshs250,000/). A refund was agreed at a monthly sum of Kshs12,500/= for a period of 30 months. This agreement was revised where parties agreed to have the Respondent do a monthly payment of Kshs20,000/= for 30 months totalling to a sum of Kshs600,000/. The Claimant has never paid any monies.
7. In support of her case, the Claimant produced E&E Loan Agreement as exhibit 1, Loan Addendum dated 3rd October, 2023 as exhibit 2 and WhatsApp’s screen shot as exhibit 3.
8. The Respondent Shaleen Mwihaki Mwenda (RW1) adopted her witness statement as her testimony and documents in the list of documents as Exhibits in this matter. She told court that the Claimant offered to fund a project by way of training on entrepreneurship, the agreement was to be governed by the laws of Kenya and that all the assets purchased from the fund would form security for the grant advanced.
9. Consequent to the funding, the Respondent constructed a pigsty at a cost of Kshs330,923 and spent a sum of Kshs88,000/ covering purchase of pigs, their feed and covering Farm’s expenses between 23rd March 2023 to 30th December 2023. Despite all efforts to keep the project afloat, it collapsed due to por growth of the pigs, financial constraints and high operational costs.
10. The Respondent says that she has no intention to dishonour anyone and the only assets on the project are the construction materials for pig and the pig’s hog toy. Additionally, the Claimant had filed another suit in Meru. In support of her case, the Claimant produced a book of accounts as exhibit 1, Receipts as Exhibit 2 and a copy of the statement of Claim filed at Meru Small Claims Court as Exhibit 3.
11. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal on the following grounds;
a. That the Learned Resident Magistrate erred in law and fact by condemning the appellant to pay money received under an agreement notwithstanding, that the agreement expressly provided that the security for the advanced funds was the assets purchased thereunder.
b. That the Learned Resident Magistrate erred in law and fact by departing from the express terms of contract and purporting to rewrite the agreement between the parties. In so doing, the court failed to appreciate the security expressly provided for under the agreement, thereby exposing the appellant to unjust and un intended liability.
c. That the Learned Resident Magistrate erred in law and fact by effectively substituting the court’s view for the clear intentions of the contracting parties by failing to give due consideration to the fact the said funds were to be recovered solely from the proceeds of the funded project, which untimely failed through no fault of the appellant, an acknowledged fact.
d. That the Learned Resident Magistrate erred in law and fact by in enforcing an agreement entered into by an unregistered charity Organization, thereby giving effect to a legally invalid and unenforceable contract.
e. That the Learned Resident Magistrate erred in law and fact by failing to consider the legal implications and practical impact of enforcing an agreement involving a charitable organization operating without legal registration.
f. That the Learned Resident Magistrate failed to appreciate or take judicial notice of the public interest and essential role played by charitable organizations in Kenya which was a relevant consideration in the matter.
g. That the Learned Resident Magistrate erred in law and fact by assuming and exercising Jurisdiction over a matter that fell outside the territorial jurisdiction of the court.
h. That the Learned Resident Magistrate decision was against the weight of the evidence adduced and failed to properly apply the principles of equity and fairness in the circumstances.
i. That the learned Magistrate erred in law and in exercise of her mandate failed to do equity and justice to the appellant.
12. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
13. This court notes that the appellant settled on 8 grounds for determination. However, looking at the totality of the grounds, I opine to collapse them into one; whether or not the Respondent proved his case on a balance of probability.
14. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: “Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.” Section 109 states 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 the fact shall lie on any particular person” Section 112 reads “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.”
15. In Anne Wambui Ndiritu Vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: “ As a general proposition under section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
16. Many are the decisions on contracts and whereas I may not be able to exhaustively sample them in this Judgement, I find the following passages apposite to act as my anchorage.
17. In Rufale Vs Umon Manufacturing Co. (Ramsboltom) (1918) L.R 1KB 592 , Scrutton L.J. held as follows: “The first thing is to see what the parties have expressed in the contract and then an implied term is not to be added because the court thinks it would have been reasonable to have inserted it in the contract.”
18. In the case of Attorney General of Belize et al Vs Belize Telecom Ltd & Another (2009), 1WLR 1980 at page 1993, citing Lord Person in Trollope Colls Ltd Vs North West Metropolitan Regional Hospital Board (1973) I WLR 601 at 609, held as follows: “The court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves. If the express terms are perfectly clear and from ambiguity, there is no choice to be made between different meanings. The clear terms must be applied even if the court thinks some other terms could have been more suitable.”
19. The importance of interpreting contracts strictly was further reiterated in the case of Curtis Vs Chemical Cleaning & Dyeing Co. Ltd (1951), ALL ER 631 in which Lord Denning held as follows: “ If a party affected signs a written document, knowing it to be a contract which governs the relations between him and the other party, his signature is irrefragable evidence of his assent to the whole contract, including exception clauses, unless the signature is shown to be obtained by fraud or misrepresentation.”
20. The claim arises out of a contract and as such, the court must be cautious not to re-write a contract for the parties. Put differently, the court shall at all times in the absence of any contrary evidence, be guided by the terms of the contract in any contractual claim and give effect to the intentions of the parties as set out in their contract.
21. Undisputedly, parties in this claim agreed to set out the terms in their agreement dated 6th February, 2023. Later on 3rd October, 2023, it was revised by way of an addendum in respect of the monthly repayments of Kshs20,000/ per month instead of Kshs12,500/ monthly as parties had agreed to increase the principal loan by a further sum of Kshs150,00/. It is also in evidence that the Respondent has not paid any monies in terms of the repayment terms. That is to say from 6th February 2023, there has been no repayment due from the Respondent. This was a breach of the terms of contract under clause V1 and V11 of the E&E Charity Grant and Loan Agreement.
22. In the event of default in repayment, parties had agreed to have security by use of assets as captured under Clause VIII and IX. It provides “VIII. Security: As part of this agreement, the borrower agrees to pledge as security. The borrower agrees to secure this agreement by pledging the following collateral: all assets bought from the given funds. NB. All receipts should read the charity’s name as the purchaser of the assets” “IX. Use of assets: The assets shall be used as promised, planned or descripted in the allocation process. If the assets are used differently or the use is not proven or communicated appropriately, the contract itself loses its base and the funds must be paid back immediately including the interest”
23. The court has perused the witness statement and the list of documents of the Respondent. I do not trace any assets as contemplated by this agreement. Besides, the Respondent has not exhibited the assets in line with clause VIII and IX of the contract. This no doubt, is a breach of the contract terms.
24. It is important to note that the running of the project was not part of the contract terms. It was a sole responsibility by the appellant and the Claimant had no role in that realm. Whether one made profits or losses, was not part of a consideration in this contract. The role of the Claimant was to advance monies on terms to a borrower for her project.
25. Whereas the assets of the project were at the center of security, it is worthwhile to note the nature of the assets contemplated in the agreement were supposed to be purchased in the name of the Charity Organization. Differently put, the receipts were supposed to bear the name of the Claimant. The court has read all the exhibits produced within the lines and I see no single asset in the name of the Claimant. This is also a breach of the Contract terms.
26. Intriguingly, the Respondent frustrated the Claimant by failing to repay the loan and or adhere to the default clause by failing to purchase the assets in the name of the Claimant. The Claimant has no assets to fall back as a mode of recovery of his monies. However, all is not lost. Clause X provides “ this agreement shall be construed and governed by the laws in place in Kenya”
27. The interpretation of the case laws in Kenya as well as the relevant provisions of Civil Procedure Act and Rules is that when a party admits a debt, then judgement ought to be entered. In her witness statement at paragraph 3, the Respondent states “I have no reason whatsoever to dishonor my lawful obligation to anyone. The only available assets on the project are the construction materials for the pigsty and the pig’s hog toys.” This is a clear admission of the debt. In Choitram Vs Nazari (1984) KLE 327 that; - “...admissions have to be plain and obvious as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning.” Chesoni Ag. JA went on to add that: “...an admission is clear if the answer by a by-stander to the question whether there was an admission of facts would be ‘of course, there was’
28. Putting all these together, I make the following findings;
a. The Appeal lacks merit and it is dismissed.
b. Cost of the appeal to the Respondent.
Judgement delivered in Court virtually in the presence of the Court Assistant Mr Sagasi this 9th September, 2026.