https://new.kenyalaw.org/akn/ke/judgment/scc/2026/111

 REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA SMALL CLAIMS COURT CASE NUMBER: SCCCOMM/E232/2026 NAUSHAD MOHAMED HUSSEIN AHMED VS ESMAIL ABDULLATIFF ESMAIL JUDGMENT Vide statement of claim dated 13th March 2026, the claimant seeks judgement for the sum of Kshs. 155,000/= arising out of an agreement dated 16th June 2010 entered into by the parties for the sale of a property. The consideration was Kshs. 600,000/=, which the Claimant paid. The sale however did not go through on account of a defect to title discovered later and acknowledged by the Respondent. As a result, the Respondent between the year 2014 to 2024 paid the Claimant Kshs. 445,000/= in remedy for the breach, leaving a balance of Kshs 155,000/= being money had and received, as claimed. In support of the claim, the Claimant filed the sale agreement dated 16th June 2010 and witness statements of the Claimant and a witness to the said agreement Nawaz Mohamed, which this court has perused. The Respondent denies the Claim and filed only the witness statement of the Respondent in support of their position wherein it states that the Respondent never entered into any agreement with the Claimant and that the purported Agreement does not provide the specification of the alleged plot. Furthermore, the Claimant's averment that he paid a purchase price of Kshs. 600,000/- is denied and it is curious to note that the purported agreement reflects only the Claimant's witness while the seller's witness is entirely blank. Further still, the Respondent admits receiving the Claimant's demand dated 22nd January, 2026 to which he responded by requestingg that the Claimant furnishes a copy of the sale agreement, a request which was ignored. How the purported agreement resurfaced after this request and for the purposes of instituting this suit should be construed as proof of the Claimant's lies. Sections 107, 108 and 109 of the Evidence Act place the burden of proof upon the party who alleges. The Claimant pleaded that the parties entered into an agreement for the purchase of a property in 2010 which subsequently flopped due to the Respondent’s fault. To prove this position, the Claimant filed the said agreement together with the witness statement of the person who witnessed the agreement. The Respondent has merely denied the transaction without pleading or producing any evidence of fraud, mistake, coercion or undue influence to attack the validity of the agreement. This court therefore finds that the Claimant has proved the existence of the said agreement between the parties herein. As a result of the failure of the agreement, the Respondent was to refund the purchase price of Kshs 600,000/-. The Claimant states that the Respondent has between the year 2014 to 2024 paid the Claimant Kshs. 445,000/= in remedy of the breach, leaving a balance of Kshs 155,000/=. The Respondent has denied receiving any money from the Claimant or making any part payments in settlement of the same. In ***Mogas Kenya Limited v Premium Petroleum Company Limited 2020 14KEHC 2893(KLR)*** the court while relying on ***Consolidated Bank Of Kenya V Mombasa Development Ltd & Another, Civil Appeal Number 79 OF 1995 (1995) LR 5616) CAK***, held that, *“…a Court can only enter judgment on admission when the admission is clear, unambiguous, unequivocal and sufficient, that is the admission must be plain and obvious.”* In the instant case, the Claimant has filed a demand letter sent and received by the Respondent that details the outstanding balance and despite successful delivery, the Respondent failed, refused, and/or neglected to respond or deny the contents therein. The Claimant thus submits that the Respondent has failed to rebut the evidence of the execution of the Sale Agreement; payment of the purchase price; acknowledgment of liability; and existence of the outstanding balance. In this court’s mind however, the evidential burden on the Claimant was not only to prove the existence of the agreement but also that payment was done by the Claimant and subsequent refunds done by the Respondent. This has not been done as the Claimant has failed to avail crucial evidence of these repayments. Additionally, the witness to the agreement, Nawaz Mohamed in his statement does not provide any evidence for the Court to glean on to help resolve this question. It is much easier for the Respondent to argue that no payment had been made than to make a case for judgment on implied admission to be entered absent circumstantial evidence. Consequently, this court finds that the Claimant has failed to prove on a balance of probabilities that the Respondent is indebted to him. The claim is thus dismissed with no orders as to costs. # DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE………10th …. DAY **OF………JUNE… 2026** In the presence of; # HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR Ms. Nyaga.. for Claimant; Mr. Wagumba h/b for Amugune… for Respondent C/A Esther SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. THERESA N. MWANGEKA** Mombasa Small Claims Court Small Claims Court Date: 2026-06-10 10:46:01