https://new.kenyalaw.org/akn/ke/judgment/scc/2026/178

 **REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT VOI** **SCC COM NO. E039 OF 2026.** **FAULU MICROFINANCE BANK LTD.................................................................CLAIMANT** **-VERSUS-** **JACKSON MRABU MDZOMBA…..………………….……………………..….RESPONDENT** **JUDGEMENT.** **BRIEF FACTS.** 1. The claimant advanced a loan of Kshs.562,000/= to the respondent upon the respondent’s own application for the said loan. The loan had terms and conditions to which both parties agreed to. 2. According to the respondent all was well until more and unforeseen deductions to wit SHA, housing levy and NSSF tier to deductions were introductions and this had a devastating effect to his payslip and ultimately his payslip. 3. The respondent vide his response dated 8th June 2026 in essence does not deny the claim but asks the court to restructure and/or vary the monthly instalments payable to the claimant every month. 4. The matter proceeded *ex parte* as the respondent was not a no show on the hearing date despite being aware of the date and in the spirit of Section 30 of the SCC Act I have in the interest of justice considered the response as filed alongside the exhibits filed by the claimant. **ANALYSIS** 1. **Whether the claim is merited** 2. **Whether the court can vary and/or restructure the loan agreement.** 3. **Who pays the costs of the claim.** 4. **Whether the claim is merited.** 5. From the onset and as already observed in the opening paragraphs of this judgment, the claim is not opposed in principle. The respondent is just asking the court the vary and/or restructure the loan due to unforeseen deductions that have been introduced in his payslip effectively interfering with his obligations to the claimant. 6. The long and short of it is that the claim has merit for the reason that it is not opposed by the respondent. 7. **Whether the court can vary and/or restructure the loan agreement.** 8. The request by the respondent to restructure the loan agreement is akin to asking the court to renegotiate and/or rewrite a new agreement for the parties. 9. Parties are bound by the terms and conditions of the agreements that they voluntary entered into. In addition, it is trite law that the court cannot rewrite the agreement between parties. In the case of [**National Bank of Kenya Ltd. v Pipe Plastic Samkolit (K) Ltd and anor**](https://new.kenyalaw.org/akn/ke/judgment/keca/2001/362) **(2001) eKLR.** The court held as follows; **“A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the charge.”** 1. The respondent has not pleaded or even suggested that there was coercion, fraud or undue influence at the time of signing the agreement and therefore in the absence of all those, this court has no power to interfere with the agreement. 2. The duty of the court therefore in the circumstances is to enforce the terms and conditions set therein. This is the position advanced in the case of [**Matex Commercial Supplies Limited vs Euro Bank Ltd (In Liquidation)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2007/2428) **(2008) eKLR** where the court stated that the duty of the court is to enforce or legitimize what parties have agreed upon themselves. 3. The respondent invited the court to peruse the payslips attached to the claim in a bid to persuade the court to restructure the agreement. The court has since acceded to the request. 4. A keen perusal of the payslips especially 2022 to 2024 shows that the respondent was paying the loan though not as agreed but there was no much difference between the agreed amount and the amount paid and this may suggest why the claimant did not take any precipitate action. 5. The rain started beating the respondent in the year 2025 and this was due to a frolic of his own. Despite the disposable income having already shrunk, the respondent took another with Platinum Credit which further overloaded the payslip and effectively reducing the amount payable to the claimant. 6. It is not the business of the court to determine and/or decide for the respondent whether or not to take a loan but he should be cognizant of the fact that he has other earlier liabilities and that he should live within his means in light of prevailing circumstances in his payslip. 7. It is therefore the finding of the court that guided by the decision of the cases I have referred to this court cannot grant the request to restructure and/or vary the terms of the agreement in terms of the monthly instalments. The request is therefore declined. 8. **Who bears costs of the claim.** 9. As to the issue of costs, they follow events. For the reasons discussed above had the respondent been prudent in the management of his affairs the suit wouldn’t have been necessary. 10. Consequently, the claimant being successful in the matter, it is awarded costs of the claim. **CONCLUSION AND DISPOSITION.** 1. The upshot of the foregoing I make the following final orders; 2. **The claimant’s claim contained in the statement of claim dated 12/5/2026 is allowed in the sum of Kshs.560,860.66/= being the balance due as at 30/6/2026.** 3. **Costs and interest at court rates from the date of filing until payment in full are awarded to the claimant.** 4. Orders accordingly. **DATED, SIGNED AND DELIVERED AT VOI SMALL CLAIMS COURT THIS…22nd …..DAY OF …July…2026.** **F.M. MULAMA** **ADJUDICATOR/RM** **In the presence of:** Court Assistant:- Abuswaleh N/A for Claimant. N/A for the respondent