https://new.kenyalaw.org/akn/ke/judgment/scc/2026/125

Gitau v Kikuvi (Commercial Case E015 of 2026) [2026] SCC 125 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] SCC 125 (KLR) Republic of Kenya In the Small Claims Court at Lamu Commercial Case E015 of 2026 FM Mulama, RM June 5, 2026 Between Hannah Wangari Gitau Claimant and Joseph Ngotho Kikuvi Respondent Judgment Introduction 1.At the hearing of the claim it became more apparent that the respondent only admits Kshs.186,480/= out of the claimed amount of Kshs.320,000/=. Consequently, the court entered judgment on admission for the said sum and now being called upon to determine whether the claimant is entitled to the balance of Kshs.133,520/=. 2.It is the claimant’s case that on or about 16th June 2025 together with the respondent entered into a written acknowledgement of debt agreement where the respondent acknowledged being indebted to the claimant for the sum of Kshs.320,000/=. The said agreement was produced in evidence. 3.The claimant states that the respondent is in breach of the said agreement hence this claim. 4.The respondent despite largely denying the claim, at paragraph 4(e)admits to owing the claimant only Kshs.186,480/= and not the entire sum of Kshs.320,000/= and in the same vein raised a counterclaim seeking among other orders that the agreement in question be declared null and void, an order for the claimant to return the warehouse key and payment of Kshs.72,000/= and costs of the counter claim. 5.In addition to the viva voce hearing parties have filed their respective submissions to which I have read and considered in this judgement. Issues for Determination. 6.The claimant in his submissions has raised 3 issues for determination as follows;a.Whether the Acknowledgment of Debt Agreement dated 16th June 2025 is a valid and binding contract, or whether it is voidable on account of duress, undue influence, unconscionable terms, or ill health.b.Whether the Respondent has proved his Counterclaim of Kshs. 72,000/= to the required legal standard.c.Whether the Claimant is entitled to the reliefs sought in the claim. 7.The respondent on the other hand has rather surprisingly only raised one issue for determination that is whether the debt agreement dated 16th June 2025 is enforceable and nothing has been said about the counterclaim. Analysis and Determination 8.In my view the claim turns on the agreement dated 16/6/2025. On one hand the claimant asserts that the agreement ought to be enforced and the respondent to comply with what he signed for whereas on the other hand the respondent asserts that the same was signed under duress and that he was not given an opportunity to read the averments thereto. 9.In a bid to rely on duress as a ground to invalidate the agreement, he asserts that at the time of the signing he was unwell and relied on treatment notes and that he signed the agreement after he had just come from the DCI officers. 10.When cross examined and upon perusal of the treatment records it became apparent that they related to a period way before the signing of the agreement and as such it has no bearing to the signing of the agreement in my view. I find and hold in similar terms. 11.As to whether there was undue influence from the DCI officers, the claimant admitted that she reported the matter to the police and who advised them to go to an advocate as it was more civil than criminal. He admitted in cross examination that the agreement was done at the advocates office and that there were no police officers when he signed the agreement. It is therefore not clear how the police interfered in any way with the signing of the agreement. 12.It is also clear and as submitted by the claimant that no particulars of such undue influence and/or coercion was ever pleaded by the respondent in defence or the counterclaim. It is therefore in addition to this I do find that there was no undue influence and/or coercion during the signing of the agreement whether from the DCI officers or anyone else. I further hold and find that the agreement in question is valid and parties thereto and bound by it. 13.Having so found, the court's role is one. To interpret and enforce the contract, not to rewrite it to shield a party from a bad bargain or subsequent regret. This position was well articulated by the Court of Appeal in the case of National Bank of Kenya Limited vs. Pipe Plastic Samkolit (K) Ltd [2002] eKLR, a case cited by the claimant in her submissions where the Court held:“A court of law cannot rewrite a contract between parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded or proved.” 14.As decreed by the court of appeal, this court will not attempt to rewrite the contract dated 16/6/2025. The parties willingly entered into it and they are therefore bound by it. My singular duty is to enforce the same. That is what I am about to do. 15.The respondent bound himself that he was indebted to the claimant in the sum of Kshs. 320,000/= and having admitted the sum of Kshs.186,480/= I do find also that the claimant is entitled to the difference being Kshs.133,520/=. 16.On whether the counterclaim has been proved, no evidence was led to prove how the Kshs.72,000/= came about. It therefore falls on that ground alone and this could possibly explain why the submissions by the respondent gave the issue a wide berth. 17.Consequently, the inevitable conclusion I must arrive at is that the claim has been proved on a balance of probability and that the counterclaim is not merited for want of proof. a. Who Bears Costs of the Claim? 18.It is well recognized that the principle costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case. The claimant being the successful party she is awarded costs. Conclusion and Disposition. 19.The upshot of the foregoing I make the following final orders;a.The claim contained in the statement of claim dated 7th April 2026 is allowed in the sum of Kshs.320,000/=.b.The counterclaim is dismissed with no orders as to costs.c.Costs and interests of the claim are awarded to the claimantd.The interest shall accrue from the date of filing of the claim and shall be at court rates.e.Let the file be closed forthwith. 20.Orders accordingly. DATED, SIGNED AND DELIVERED AT LAMU SMALL CLAIMS COURT THIS….5TH …..DAY OF …JUNE…2026.F.M. MULAMAADJUDICATOR/RMIn the presence of:Court Assistant:- Abuswaleh.Mr. Maina for the Claimant.Mr. Mutethia for respondent.