https://new.kenyalaw.org/akn/ke/judgment/scc/2026/50

Abalo v Kariuki & Kariuki (Commercial Case E101292 of 2025) [2026] SCC 50 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] SCC 50 (KLR) Republic of Kenya In the Milimani Small Claims Court Commercial Case E101292 of 2025 GW Kiamah, RM June 26, 2026 Between Grace Abalo Claimant and G.N Kariuki & Deb. W. Kariuki Respondent Judgment 1.The claimant instituted this suit via the statement of claim dated 27/6/2025 seeking judgment against the claimant for Kshs. 40,000.00/= on the basis that she entered into a lease agreement with the respondents and paid one month rent of Kshs. 40,000/= as well as one-month deposit of Kshs. 40,000/=. That upon issuance of notice to vacate one year later, the respondents failed to refund the deposit of Kshs. 40,000/= despite demand. 2.The respondent filed a response and counter-claim dated 16/10/2025 and averred that deposit was to refunded upon satisfactory repairs were done. Vide the witness statement dated 19/11/2025, the respondents stated that they incurred Kshs. 52,577/= in repairs of clearance of water bill and they thus countered for Kshs. 12,577/= as the deposit of Kshs. 40,000/= was not enough to cater for repair costs. 3.In response, the claimant asserted that she handed over the house in good condition and no inspection report was shared or notice of damages after she vacated. That the repair costs were thus an afterthought. 4.The matter proceeded under Section 30 of the Small Claims Act and the claimant filed submissions dated 5/2/2026 whereas the respondent’s were dated 13/3/2026. 5.I have seen and considered the pleadings, testimonies, evidence and submissions before court. The main issue for determination is whether the deposit of Kshs. 40,000/=, or whether the claimant indeed owed the repair costs of Kshs. 12,577/=. 6.The standard of proof in civil claims is on a balance of probabilities. See the Court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR. 7.Sections 107, 108 and 109 of the Evidence Act, Chapter 80 of the Laws of Kenya places the burden of proof of a fact on the person who wishes the court to believe in the existence of such fact. 8.It is not in contention that the parties had a lease agreement and that the claimant rented the unit for one year after which she issued a notice to vacate. It was also not contested that the claimant had paid a deposit of Kshs. 40,000/=. 9.Clause 7 and 8 of the lease agreement provided that upon termination or expiry of the tenancy, the landlord would repaint the house with 2 coats of paint and repair damage related to the tenant’s occupation, and the costs thereof would be deducted from the security deposit. It was also a term that the tenant would be refunded upon satisfactory repairs and repainting, and on condition that there were no outstanding bills. 10.From the foregoing, I do find that the respondents were authorized under the agreement to repaint the house and carry out repairs related to the tenancy. Though the repairs were tied to damage attributable to the tenant, the repainting clause appeared to be automatic and not dependent on tenant-caused damage. 11.Whereas the claimant asserted that she was not issued with an inspection report, the agreement did foresee that such repainting would be undertaken upon vacation. In any case, the claimant had occupied the house for one year, as such, it was expected that the house would be repainted before occupation by another tenant. 12.I do note that the burden to proof repairs and paint works lay with the respondents. I have seen the statement of account produced by the respondent. It listed down the items used for repainting as well as the repair items. 13.Starting with the claim for repairs, I note that there was nothing to demonstrate the damage claimed relating to the shower mixer. There were no before and after photographs to proof that some damage existed and the same was repaired, and neither were there any receipts to proof the sum of Kshs. 6,000/= indicated in the respondents’ account was used to fix such damage. Though the respondents averred that the inspection report was shared to the claimant via whatsapp, no such communication was produced to indicated that damages were noted and communicated to the claimant. The claim for repairs of Kshs. 6,000/= thus fails as the same were special damages and ought to have been specifically pleaded and strictly proved. 14.As relates to paint works, it has already been found that the agreement provided for repainting after the claimant’s vacation, as such, the claimant could not avoid liability for reasonable repainting costs as contractually agreed. However, it was upon the respondents to prove the actual costs incurred. 15.This Court is not convinced that the statement produced by the respondents was credible noting that the list was not prepared by either a painter or supplier, but by the respondents themselves. The listed prices for paints and related items were not proven by way of receipts and there was nothing to support such figures. Further, the items revealed six different types of paint including matt, silk, multiple gloss colours, and varnish. The size of the house was not disclosed in the pleadings, however, six different types of paint were unrealistic for standard re-painting. 16.As already stated, there was no proof that all the listed items were purchased and used for paintworks in the subject house. Labour charges of Kshs. 12,000/= were also not proven. Noting the nature of the respondents’ counter-claim, I do find that the same was not strictly proven, and the entire counter-claim relied on a self-generated statement that lacked credibility without further support or proof of purchase or expenditure. 17.It is trite that where a party entitled under a contract to reimbursement fails to prove actual expenditure, the court cannot speculate or substitute evidence. I do find that the counter-claim related to quantified expenditure for repairs and repainting and such claim is in the nature of special damages which must be strictly proved. 18.While the agreement anticipated repainting, it did not fix a specific sum payable. The respondent was therefore required to demonstrate the actual or reasonably incurred cost, which was not done. As such, the claim for Kshs. 52,577/= cannot succeed as the Court is not inclined to award an arbitrary figure that lacks evidentiary support. 19.As such, the counter-claim fails in its entirety as the respondents failed to proof any damage attributable to the claimant, any actual expenditure on repairs, or any quantified or verifiable repainting costs. In the same breath, there is no lawful justification to withhold the claimant’s deposit. 20.The upshot is that the claimant’s claim succeeds, whereas the respondent’s counter claim fails. 21.To that end, I hereby order as follows: -1.Judgment is hereby entered in favour of the claimant as against the respondent for the sum of Kshs. 40,000/= being the full security deposit.2.The claimant is awarded costs Kshs. 8,000/=3.The respondents counter-claim is dismissed with no orders as to costs. 22.The respondent is awarded 30 days stay of execution.It is so decreed. DATED AND DELIVERED AT NAIROBI VIA CTS THIS 26TH DAY OF JUNE 2026HON. GLADYS .W. KIAMAHRESIDENT MAGISTRATE/ADJUDICATOR