Keya v Kemunto (Civil Appeal 101 of 2023) [2025] KEHC 7189 (KLR) (29 May 2025) (Judgment)
Neutral citation: [2025] KEHC 7189 (KLR)
REPUBLIC OF KENYA
IN THE HIGH COURT AT KAKAMEGA
CIVIL APPEAL 101 OF 2023
PJO OTIENO, J
MAY 29, 2025
BETWEEN
BILLY BRIGHT KEYA ............................................................................ APPELLANT
AND
LUCIA NYABUTO KEMUNTO ......................................................... RESPONDENT
(Being an appeal from the Judgment of Hon. Sylvia A. Wayodi (RM) in
Kakamega SMCC Case No. E188 of 2023 delivered on 27th June, 2023)
JUDGMENT
Background of the Appeal
1. By way of a statement of claim dated 28th April, 2023, before the small claims court, the respondent
sued the appellant for judgment in the sum of Kshs 530,000/- and costs of the claim. It was pleaded
that by an agreement between the parties, the claimant/respondent lent to the appellant a sum of Kshs
730,000. It was a term of the agreement that the same would be paid back in three agreed instalments.
The claimant/respondent further pleaded that the Appellant/respondent paid a sum of Kshs 200,000
but refused to pay the balance hence the suit.
2. In a response to the statement of claim dated 16th May, 2023, the appellant denied owing the
respondent and stated that he had never received any money from the appellant and further claimed
that he was forced, by the police while being detained, to pay to the appellant a sum of Kshs. 200,000/-.
He made a counter-claim for the return of that payment.
3. The matter was heard by way of viva voce evidence when the respondent called evidence from two
witnesses while the appellant was the only witness on his side.
4. In her judgment delivered on 27th June, 2023, the trial court found in favour of the respondent and
entered judgment in the sum of Kshs. 530,000/-, interest at court rate from the date of ling the claim
and costs of the suit.
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5. Aggrieved with the decision of the trial court, the appellant lodged a memorandum of appeal dated
10th July, 2023 premised on the following grounds;
a. The learned magistrate wholly misapprehended the nature of the suit before her, and thereby
arriving to a wrong decision.
b. The learned magistrate having found out that the appellant had been detained for 10 days erred
in failing to nd out the days in custody were a plot to intimidate the appellant to consent to
the terms of the contract without establishing the existence of any transactions prior to the
arrest and illegal contract.
c. The learned magistrate erred in failing to establish that there was no evidence supporting the
alleged advance in the contract the appellant signed.
d. The learned magistrate erred in failing to consider the elements of a valid contract is not limited
to capacity thereby arriving at a wrong decision leading to miscarriage of justice.
e. The learned magistrate erred in failing to note the inconsistency of the amount claimed by the
respondent in the acknowledgment of debt as opposed to the amount reported and recorded
in the occurrence book at the police station.
f. The learned magistrate erred in law by failing to consider and evaluate the statement presented
by the appellant and his witness and selectively admitted and/or applied evidence adduced by
the respondent.
g. The learned magistrate erred in law and in fact by failing to take into account the submissions
made on behalf of the appellant.
6. Based on the said grounds of appeal, the appellant prays that the appeal be allowed in whole and the
judgment and the decree of the trial court be set aside and substituted with an order dismissing the suit
with costs to the appellant, both here and in the court below.
7. The court reads the memorandum of appeal to largely raise issues of facts which the court, however,
discerns to challenge the judgment on the basis that it not grounded on the evidence led. Failure to
properly consider the evidence led, for purposes of arriving at the decision appealed against, is now
established to be a matter of law which then qualies the appeal for determination by this court.
8. The appeal was directed to be canvassed by way of written submissions which direction was duly
honoured by the parties. The court on his part has taken time to read and derive valuable benet from
the submissions led. The court give a summation of such submissions as below.
Appellant’s Submissions
9. The appellant submits that he was illegally detained for 10 days by the police on allegations of obtaining
money amounting to Kshs. 630,000/- by false pretense and denied bail. He argues that he was oered
freedom on condition that he agrees to make payment of Kshs. 730,000/-and he that had no choice
but to part with Kshs. 200,000/- during which time he was denied access to an advocate. He was
thereafter to visit an advocate’s oce where he signed a contract dabbed an acknowledgement of debt.
He contends that the trial court failed to consider the unfavorable circumstances under which the
acknowledgement of debt was signed.
10. The appellant thus urges the court to exercise its mandate on rst appeal by reappraising the entire
evidence afresh with a view to satisfying itself that the conclusions of the trial court are consistent with
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and in sync with the evidence led. For that submission, the decision in Peter M Kariuki vs Attorney
General (2014) eKLR is cited.
11. The appellant further cites Kenya Airways Ltd vs Satwant Singh Flora (2013) eKLR for the proposition
that no court should enforce or allow itself to be the instrument of enforcement of an illegal contract
if the illegality is duly brought to its attention and knowledge together with the facts that the person
seeking to enforce the obligation of the illegal contract is himself implicated in the illegality. In addition,
the decision in Jordan Properties Ltd vs Margaret Njoki Migwi (2020) eKLR was cited for the law that
illegal contract or those against public policy or morality are void and thus not capable of enforcement.
12. The appellant thus urges the court to nd that the judgment is not in sync with the evidence led and
therefore it is a candidate for being set aside and in its place being substituted a judgment dismissing
the claim with cots to the appellant.
Respondent’s Submissions
13. The position taken by the respondent is that she presented an agreement before the court and thein
discharge of her legal burden thus shifting the evidential burden of proof upon the appellant to
prove his allegations that the agreement was vitiated by illegalities. She contends that the appellant
was arrested on suspicion of committing a cognizable oence in law and stayed in the police station
pursuant to a court order and that the appellant approached the respondent to the resolve the matter
which resulted in the appellant sending the respondent Kshs 200,000/- while the parties executed an
agreement for the payment of the balance of Kshs 530,000/-. She then adds that the appellant has not
demonstrated that he was coerced into entering the agreement. The decision in Amesnet Enterprises
Limited and others v Susan Wanjiru Wagendo (2021) eKLR is then cited and relied upon for the
proposition that where a party to contract alleges coercion, he must demonstrate that he did not have
an alternative course open to him such as adequate legal remedy, whether he was independently advised
and whether after entering the contract he took steps to avoid it.
14. On the basis of the pleadings, evidence led and the judgment on record, the respondent views the appeal
to lack merits and prays that it be dismissed with costs.
Issues, Analysis and Determination
15. This court has considered the grounds of appeal, the proceedings of the lower court and the
submissions by both the appellant and the respondent and discerns the issue for determination to
be whether the appellant was coerced into executing the acknowledgement of debt and payment
agreement dated 6/3/2023? In the converse, the issue is whether the judgment is in sync with the
evidence on record?
16. This being an appeal from the Small Claims Court, this court is obligated by the provisions of section
38 of the Small Claims Court to only address points of law. As said before the treatment of evidence
by a court or tribunal in arriving at a decision is indubitably a question of law.
17. It is trite law that he who alleges must prove. The appellant pleaded and led evidence that he was
coerced into signing the agreement upon which the claim was based. Having so pleaded, and after the
respondent had led evidence on the debt including a duly executed agreement and an acknowledgment
of the debt, made long after the agreement was executed and part of the sum paid, it was the appellants
legal burden to prove the illegality by coercion to the satisfaction of the court.
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18. When cross examined by the respondent’s counsel, the appellant had this to say; -
“ I know the documented letter. It was sent by what’s up (sic). 0741653093. I respondent
(sic) to the letter. By 530k I meant 530,000. I meant I had paid Kshs 200,000.”
19. That answer was with regard to the appellants reply to a demand notice. When he received the notice,
he respondent by unequivocally saying: -
“ I have defaulted on one part of the agreement. 730 was the full amount. I owe 530K not
730. I have so far paid 200.”
20. To the court, the answer upon cross examination and the response and the acknowledgement made
after the agreement was signed has not been challenged to have been also under compulsion. To the
court, with that acknowledgment alone, there was a complete admission of the demanded sum and
one needed not revisit the agreement. Once again, even the claim was suciently mountable upon the
acknowledgment without the need to relate it to the agreement.
21. In legal parlance, coercion means compulsion, constraint, compelling by force or arms or threat. It is
an unlawful act meant to push a person into acting against his will. It is thus one of the factors known
to vitiate and make a contract void when established to have been employed to procure the execution.
22. Proof of coercion the defense of coercion as a vitiating factor was addressed in the case of PAO & Others
–vs- LAN LIU & Another [1979] 3 ALL ER where the Privy Council stated that;
“ In determining whether there was a coercion of will such that there was no true consent, it
is material to inquire whether the person alleged to have been coerced did or did not protest;
whether, at the time he was allegedly coerced into making the contract, he did or did not
have an alternative course open to him such as an adequate legal remedy, whether he was
independently advised; and whether after entering the contract he took steps to avoid it”.
23. In his own words, the appellant stated that he was taken to a lawyer’s oce where he executed the
agreement. It would have been important to know from him if he was in a position to put it to the
advocate that he had been coerced. He did not make such an allusion. He was in the company of
another who gave evidence on his behalf, the court wonder why he was unable to seek and obtain legal
advice on the demand to sign the commitment before signing same.
24. Moreover, even after executing the agreement the appellant took no action to report the illegal
detention and the execution of the agreement to any authority. In fact, he was content to let the matter
rest without a complaint or some action to undue the agreement until he was served with the claim
paper then opted to le a suit in court.
25. when the appellant was served with a demand notice as captured on page nine of the record of appeal,
he stated as follows; This message does not depict an individual coerced into an agreement.
26. The court upon reappraisal of the record and appreciation of the law applicable, nds no merit in the
appeal. It determines that the trial court properly appreciated the evidence let when applied to the
law and made the determination it reached. There is thus no error in principle or failure to properly
apprehend the facts and the law applicable.
27. For the conclusions reached above, the court nds the appeal to be devoid of any merit and, it is
therefore dismisses it with costs.
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DATED AND SIGNED THIS 29TH DAY OF MAY, 2025.
PATRICK J O OTIENO
JUDGE
DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 29TH DAY OF MAY, 2025.
S. MBUGI
JUDGE
In the presence of:
No appearance for the parties
C/A: Agong’a
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