https://new.kenyalaw.org/akn/ke/judgment/scc/2026/142

Elizabeth v Ariwi t/a St David Primary School (Commercial Case E230 of 2026) [2026] SCC 142 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] SCC 142 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Commercial Case E230 of 2026 TN Mwangeka, RM June 18, 2026 Between Elizabeth Claimant and Dedan Ariwi t/a St David Primary School Respondent Judgment 1.The claim herein relates to an alleged loan agreement entered into by the parties on 23rd April 2025 per the Statement of Claim. The Claimant loaned the Respondent Kshs. 20,000/- which was to be repaid plus interest as agreed. The Claimant states that up to now, the Respondent has paid Kshs. 11,000/- after taking the Respondent to the police. The Claimant now seeks judgment for Kshs. 29,000/- being the remaining balance plus interest. 2.The Respondent on his part denied the claim and filed a response to that effect. 3.On 4th June 2026, the matter proceed for hearing where the Claimant gave oral evidence and stated that the Respondent sent his workmate David Lewa to come and get a loan of Kshs. 20,000/-. The said David Lewa filled the loan application form and received the funds. They said that they would refund the money in two weeks and subsequently Kshs. 6,000/- was returned in cash. After that the Respondent did not pay up resulting in the Claimant reporting the matter to the police. After this the Respondent through his wife sent Kshs. 5,000/- which was the last payment made to date. On cross examination, she stated that the loan application form was signed by David and not the Respondent. 4.On his part, the Respondent denied ever taking a loan from the Claimant and that he was not the one who signed the form. The Respondent admitted to knowing both the Claimant and David and that he never sent David to take a loan from the Claimant nor did he give his wife money to send to the Claimant. On cross examination, he stated that he does not know why his wife sent the Claimant money and that he was called to Junda Police Station but did not go, only talked to the police officer over the phone. 5.From the evidence on record and in consideration of the testimonies of the parties herein, this court finds that the sole issue for determination is whether the Claimant has proved its case on a balance of probabilities against the Respondent. 6.The Claimant has filed a Loan Agreement dated 23rd April 2025 which shows the Respondent as the applicant for a loan of Kshs. 20,000/-. The said David Lewa is listed as the Referee. The signature on the said application is that of David as submitted by the Claimant who came on behalf of the Respondent to obtain the loan for him. I note that in his evidence, the Respondent did not dispute the existence of the agreement or the details captured therein only that he did not sign the said agreement. Further, the fact that the Respondent was called to the police over this matter has been confirmed by his own testimony as well as the OB extract filed herein. Additionally, the Respondent has failed to sufficiently explain why his wife would send the Claimant money if indeed he was not indebted to the Claimant. 7.In the case of Margaret Njeri Mbugua v Kirk Mweya Nyaga (2016) eKLR the court dealing with a defence of mere denial held as follows;“A mere denial is not a sufficient defence and a defendant has to show either by affidavit, oral evidence, or otherwise, that there is a good defence…….When a party in any pleading denied an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with diverse circumstances, it shall be sufficient to deny it as alleged along those circumstances, but fair and substantial answer must be given… ….First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.” 8.Section 112 of the Evidence Act provides that in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him. Accordingly, in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, it was 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 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...” 9.In the present case, this court finds that the Respondent has not adduced any evidence to support his case. He has merely denied taking the loan and deflected liability to David Lewa whom he has neither called as a witness nor taken out a third-party notice in respect of. The Respondent has therefore failed to disprove that David Lewa was not acting under his instructions when taking the loan from the Claimant. 10.Consequently, judgment is entered in favor of the Claimant against the Respondent for Kshs. 9,000/- being the balance of the principal sum of Kshs. 20,000/-. The claim for interest is denied as the Claimant is not a registered money lender as per the law. The said sum shall attract interest at court rates from date of filling. Costs are awarded at Kshs. 2,000/-. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……18TH…. DAY OF……JUNE……2026HON. THERESA N. MWANGEKARESIDENT MAGISTRATE/ADJUDICATORIn the presence of;Claimant in person;..N/A.. for Respondent C/A EstherSigned By/For:THE JUDICIARY OF KENYAHON. THERESA N. MWANGEKAMOMBASA SMALL CLAIMS COURTSMALL CLAIMS COURTDATE: 2026-06-18 10:26:09