Tina Koshi Tito & Another v Mwanajuma Tila Omara & 2 Others

a member had, she was allowed to take a loan, and that she had taken in two slots. 5. In re-examination, the witness stated that the three in total owed the group a sum of KShs. 334,120 and reiterated that they had not denied owing the money. 6. PW-2 was Salma Ghamang’ombe Jillo, who adopted her witness statement dated 15/1/2026 and the further statement dated 23/3/2026 as her evidence before the court. 7. In cross-examination, the witness stated that she is the secretary of the group named Umoja Self-Help Group. It was her evidence that members are given shares in the group and a member is allowed to have more than one share, and such a member is allowed to take a loan under each share. 8. She conceded that they had not indicated how much money each of the defendants owed the group, but she indicated that the total amount owed is KShs. 384,120. It was her evidence that they had recovered some of the money owed from the shares of the members as follows: Mwajuma—shares worth KShs. 36,000; Koshi John—shares worth KShs. 22,800; and Christine Haduyo—shares worth KShs. 22,400. It was her testimony that the monies owed were the amounts after deducting the shares. 9. PW-3 was Mary Muli, who adopted her witness statement dated 23/3/2026. 10. While being cross-examined, the witness stated that she is a member of the group and she is familiar with its operations. She stated that the members had consented to this case being filed and that they had signed a consent to that effect. Further, there was no auditor who inspected their books of accounts before the filing of this case. She confirmed that the shares of the three defendants had been deducted and the money claimed is after the deduction of the shares.

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11. In re-examination, she stated that Mwajuma had more than one share number and that she had taken a loan for each share number. 12. That marked the close of the Plaintiffs’ case. THE DEFENCE CASE 13. DW1 was Mwanajuma Tila Omar, who adopted her witness statement dated 13/3/2026 as her evidence before the court. She testified that, as far as she was aware, she took a loan and was unable to pay, and the group deducted her shares worth KShs. 36,000, and that the balance was now KShs. 70,000, and she proposed to be given time to pay KShs. 3,000 per month. 14. In cross-examination, the witness stated that she was given a loan of KShs.106,000 and they deducted her shares worth KShs.36,000, hence the balance of KShs.70,000. She stated that she did not have proof of the said deductions or proof of the monies advanced. 15. In re-examination, the witness was categorical that she did not dispute the debt owed but she maintained that she had been advanced a sum of KShs.106,000 only. It was her evidence that she tried to engage the officials, but they stopped after the case was filed in court. 16. DW-2 was Koshi Margaret John. She adopted her witness statement dated 13/3/2026 as her evidence. She stated further that she had been given a loan of KShs.25,000 and her shares worth KShs.22,000 had been deducted, and as such, her balance was KShs.5,600. From the balance, KShs.4,000 was for the loan and KShs.1,600 was for an emergency loan which she had taken. She stated that she is ready to pay KShs.2,000 per month to settle the balance. 17. In cross-examination, the witness stated that she did append her signature to the group constitution and that when she was taking the loan, the group did not have a name. She further stated that she never gave out her ID for purposes of registration or passing the constitution. She proceeded to state

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that she was given a loan of KShs. 26,600, but she stated she did not have proof of the said loan. It was her testimony that her shares worth KShs.22,000 had been deducted and the balance was therefore KShs.5,600. It was her evidence that the loans taken attracted interest KShs. 2,500500 for each loan taken. It was her evidence that she was compliant previously, but she was involved in an RTA in October 2025, hence causing the delay in the repayment. She denied owing the group a sum KShs. 97,500. It is her evidence that the group constitution was passed after she had taken the loan. 18. In re-examination, she stated that when the group started, it did not have a name. She further stated that all the group documents are with the group officials. She stated that she tried talking to the members of the group about settling the issue debt out of court but they refused, stating that the case had already been filed. She denied knowing anything about the constitution as it came in when she had already left the group. She further stated that when she was a member, the group was never known as Umoja Self-Help Group. She further clarified that though there was an interest charged on the loan amount, the same was only applicable once when the loan was given. 19. DW-3 was Christine Haduyo Samuel, who adopted her statement dated 13/3/2026. She stated that she borrowed a loan from the said group and she had defaulted in repaying. It was her evidence that she borrowed KShs.60,000 and the group had deducted her shares worth KShs.22,400 and that she had repaid the group KShs.10,000 and thus the money she owes the group is KShs.33,500. She further stated that the members of the group had taken her to the police and they had reached an amicable agreement to repay the loan in installments. She states that she does not dispute taking the loan but states that she be allowed to pay in monthly installments of KShs. 2,000. 20. In cross-examination, the witness stated that she took a loan of KShs. 60,000 in September 2025, which she was to pay with

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interest, hence the total of KShs. 66,000. She denied ever being part of the constitution-making or ever signing the same. She disputed the ID number used, saying it was not her ID number. She reiterated that for every loan a member got there was a 10% interest charged on the loan once. It was her evidence that the group had laws but the laws were unwritten. It was her evidence that she had shares worth KShs. 22,100, and the same can be reflected in the group’s books, which had been presented by the Plaintiffs in court. It was her evidence that the said book would also support her assertion that she had paid KShs. 10,000. It was her evidence that despite having attempted an out-ofcourt settlement, she did not have any evidence to support that assertion. 21. In re-examination, the witness stated that she never participated in the making of the constitution which was presented before the court. She further stated that payments in the group were being made in cash and then recorded in the book owned by the group. She went on to say that the interest charged was 10% and the same was charged once on the loan amount. Lastly, she admitted owing the group a sum of KShs.33.600 and she was willing to pay the same if given a chance. 22. That marked the close of the defence case. SUBMISSIONS 23. The parties were directed to file submissions by 22/9/2026, but by the said date none had filed their submissions. However, the Plaintiffs filed their submissions on 25/9/2026, and the defendants filed theirs on 27/9/2026. The court has considered the submissions therein together with the authorities quoted while making this judgment. ISSUES FOR DETERMINATION AND ANALYSIS 24. The main issue for determination is whether the Plaintiffs have proven their case to the required standards to warrant the orders sought. The following issues have not been disputed and thus the court will not dwell on them:

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a) The plaintiffs and the defendants were both members of one self-help group b) The defendants were advanced a certain amount of money by the group c) The defendants have not fully repaid the said money advanced 25. There are other issues raised by the Defendants in their submissions as to the capacity of the Plaintiffs herein. I believe the issues were well and duly addressed by this court in the ruling dated 28/4/2026, and there is absolutely no need to belabour the issues therein. 26. Apart from the main issue raised, there are other ancillary issues which the court has to determine to enable it to get an answer to the main issue for determination; a. How much money was advanced to the defendants, and how much have they repaid, if any? b. What were the terms of the loans given to the defendants, if any? 27. All these are determined by looking at the pleadings presented before the court, the documents, and analysis of the testimonies of the witnesses. Thus, the pleadings before the court must be supported by documentary evidence and the testimonies of the witnesses brought before the court. 28. It is noteworthy that the initial burden of proving a civil case rests with the plaintiffs, from the old legal adage of “he who alleges must prove”. This is so stated under Section 107 of the Evidence Act, and it is what is termed as the legal burden of proof. On the other hand, under Section 108 of the said Act, it provides that the onus of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. The initial legal burden of proof and the evidential burden of proof belong to the Plaintiff. In the case of Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court held as follows:

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As a general proposition under Section 107(1) of the Evidence Act, 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 is cast 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. 29. This burden of proving one's assertion in civil matters always shifts from one party to the other depending on their assertion. Whatever fact a party asserts, it is incumbent upon the party to prove it or provide such evidence to prove the assertion. 30. Justice BK Njoroge in Daud vs. Moraa [2025] KEHC 12007 (KLR) stated as follows as to the shifting of this burden of proof and mainly on the evidential part. Generally, it is only after a party has discharged their burden that the evidentiary burden shifts to the opposing party to adduce evidence in rebuttal. The evidential burden is dynamic, operating like a pendulum that may shift back and forth depending on the stage of the proceedings and the evidence presented. At any given point, its position is determined by asking: who would fail if no further evidence were adduced? 31. The court will therefore expect any party asserting or alleging to provide proof or evidence in support of their assertion. The evidence so presented should be able to prove the case on a balance of probability. One party in a case must be able to convince the court about their assertions, and whoever does so will carry the day. In Miller vs. Minister of Pensions [1947] 2 All ER 372, Lord Denning stated as follows:

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That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally unconvincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained. 32. The first issue to deal with would be how much the defendants were given from the group account. With this information, we would be able to know how much each had repaid and the balance. Thus, it is the Plaintiffs' to state first that the Defendants were loaned this amount, they have only repaid this and the balance. Upon providing such evidence, the defendants would be called upon to refute it and give the evidence available on their side. 33. The Plaintiffs, in their plaint, pleaded that the three defendants jointly owed the group a sum of KShs. 384,120. The Plaintiffs did not mention how much each defendant was given but only pleaded that, after conducting a reconciliation of the defendants' accounts, factoring in the repayments made and the shares, the three were found to be “jointly and/or severally indebted to the Plaintiffs in the sum of KShs. 384,120”. 34. Black’s Law Dictionary, 12th Edition defines “joint and several liability” as: “Liabilit that may be apportioned either among two or more parties or to only one or a few select members of the group, at the adversary’s discretion.

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35. It goes ahead to explain that: “Thus, each party is individually responsible for the entire obligation, but a paying party may have a right of contribution or indemnity from nonpaying parties.” 36. What this simply means is that the defendants can be individually liable for the total amount claimed or jointly liable for the same amount. I do have my doubts as to whether this is what the Plaintiffs had in mind when drafting the Plaint. If indeed it is so, then they were plainly wrong because each individual took their own loan and, as such, they cannot be held responsible for another person’s loan. Privity of contract. 37. Due to lack of specificity of the loan amounts for each defendant in the Plaint, the Plaintiffs’ case would fail. This is further emphasized by the fact that parties are bound by their pleadings. 38. In Daniel Otieno Migore vs. South Nyanza Sugar Co. Ltd [2018] eKLR, Justice Mrima stated as follows: It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all proceedings derive. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. 39. This position has also been affirmed by the Supreme Court of Kenya in its ruling in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR where it found and held as follows in respect to the essence of pleadings:“In the absence of pleadings, evidence, if any, produced by the parties cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties

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are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’ 40. The Plaintiffs having failed to provide proper evidence indicating how each defendant owed the plaintiffs money, their case must fall. The Plaintiffs have failed to provide proper details through their pleadings as to when the said loans were taken and when they were to be repaid. 41. The Court of Appeal in Kirugi & Another vs. Kabiya & 3 Others [1987] KLR 347, held that where individual members' property or dues are at stake, generalized group statistics cannot substitute for specific proof of loss. If members default on their table banking loans, those defaults constitute debts owed by individual members to the group. 42. The closest the Plaintiffs came to proving their case was vide the further statement of PW1, Tina Koshi Tito, dated 23/3/2026. In the statement, she tries to explain the same by explaining how each of the Defendants acquired the said loans. It is clear from the said statement that each of the individuals had a separate loan agreement and obligation, which therefore would mean that no orders would issue against them “jointly and severally” as prayed in the Plaint. 43. Even if the court were to try to stretch the said evidence to the limits, there is no clear information and evidence to support the figures mentioned therein. During the hearing, it was her evidence that Mwajuma owed them KShs. 256,510. However, a calculation of the figures mentioned in the statement reveals a

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different figure. All these figures mentioned are not shown by the Plaintiffs as to how they arrived at them. It was their duty to prove to the court how the said figures for every individual member were arrived at. 44. However, the Defendants, during their hearing of the case in court, admitted to owing the group, as represented by the Plaintiffs, some money. The same issue is admitted in the pleadings which they filed before the court. The point of departure is the exact amount owed. Considering it was incumbent upon the Plaintiffs to prove the amount owed per person and that was never done, the court would hesitantly award the amounts as admitted by the Defendants during the hearing. 45. The 1st defendant admitted owing the group a sum of KShs. 70,000, the 2nd defendant admitted a sum of KShs. 5,600, while the 3rd defendant admitted a sum of KShs. 33,600. The defendants having admitted these amounts while under oath and during the hearing, and without any cogent evidence from the Plaintiffs as to how much each defendant owed, this court agrees that the amount admitted by the Defendants is the amount due. CONCLUSION 46. In conclusion, the court enters judgment for the plaintiffs against the defendants: a) The 1st Defendant, Tina Koshi Tito, to pay a sum of KShs. 70,000, b) The 2nd defendant, Koshi Margaret John, to pay a sum of KShs. 5,600 c) The 3rd defendant, Christine Haduyo Samuel, to pay a sum of KShs. 33,600 d) That the said amounts by each defendant shall attract interest from the date of this judgment at the court rates. e) The Plaintiffs shall have costs of this suit.

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JUDGMENT READ, SIGNED, AND DELIVERED AT HOLA THIS DAY OF OCTOBER, 2026 W.O. KOMBWAYO, RM In the Presence of: Ms. Hajila for the Plaintiff Ms. Kiio for the Defendant CA- Mr. Kofa Said 6 th

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