https://new.kenyalaw.org/akn/ke/judgment/scc/2026/220

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT NAIROBI** **MILIMANI LAW COURTS** **SCCOMM NO. E98128 OF 2025** **ROY MBURU KIARIE...………………….......................................CLAIMANT** **VERSUS** **JOSEPH MOYA……………...…...…………....……….…….....RESPONDENT** **JUDGMENT** 1. The claimant instituted this claim vide the statement of claim dated 29/7/2025 seeking judgment against the respondent for the sum of Kshs. 120,000/= plus costs and interests on the basis that on 14/9/2024, the respondent traded in a Samsung A55 valued at Kshs. 30,000/= for an iPhone 12 Pro Max valued at Kshs. 85,000/= leaving a balance of Kshs. 55,000/= that remained unpaid. Further, that on 21/4/2025, he purchased a PlayStation 5 from the respondent valued at Kshs. 60,000/= offsetting Kshs. 30,000/= against the outstanding balance and paying a further Kshs. 30,000/= to the respondent in cash. According to the claimant, the outstanding balance thereafter stood at Kshs. 25,000/=. He further alleged that he incurred Kshs. 35,000/= in expenses following police investigations into the ownership of the PlayStation 5 which was allegedly stolen. 2. The respondent filed the response dated 27/10/2025. He admitted the phone trade-in transaction and admitted selling the PlayStation 5 to the claimant. He however maintained that he subsequently paid the Kshs. 55,000/= balance in cash and that no amount remained outstanding. He denied liability for the alleged expenses incurred by the claimant following police investigations and contended that he sold the PlayStation 5 in good faith. 3. The claim proceeded under **Section 30 of the Small Claims Act** and the claimant filed submissions dated 9/3/2026. The respondent’s were not on record. I have considered those submissions alongside the pleadings and documents on record. The main issue for determination is whether the claimant has proven the claim as against the respondent. 4. The standard of proof in civil matters is on a balance of probabilities. See the court of Appeal in **Mumbi M'Nabea v David M.Wachira [2016] eKLR**.It is also trite that he who alleges must prove as provided for in ***Section 107 and 108 of the Evidence Act.*** 5. I have considered the court record. I do find that the phone trade-in transaction was sufficiently proven by the transfer of ownership document produced by the claimant. Further, the respondent admitted the transaction and admitted that a balance of Kshs. 55,000/= became due. Though the respondent alleged that he later paid the amount in cash, he did not produce any receipt, acknowledgement, correspondence, witness evidence, or other material to prove such payment. The burden of proving payment rested upon the respondent. In the absence of any evidence of repayment, I do find that the balance of Kshs. 55,000/= remained outstanding. 6. As regard to the PlayStation 5 transaction, the claimant produced MPESA records showing payments totaling Kshs. 25,000/= to the respondent and explained that the balance of the agreed consideration was offset against the earlier debt. I do also note that the claimant produced an Occurrence Book extract supporting his assertion that a complaint relating to the PlayStation 5 had been made to the police. Notably, the respondent did not dispute that the claimant was subjected to a police process regarding the console. 7. In the circumstances, and considering that the claimant parted with value for the PlayStation 5 which later became the subject of a criminal complaint, I do find that the claim for refund of Kshs. 25,000/= was proved on a balance of probabilities. I say so noting that the claimant only proved disbursement of Kshs. 25,000/= to the respondent and not Kshs. 30,000/= as claimed. 8. Turning to the claim of Kshs. 35,000/= allegedly incurred in following up the matter, I do note that such claim constituted special damages which required strict proof. The claimant neither particularized the expenditure nor produced receipts, invoices, or any documentary evidence demonstrating the costs allegedly incurred. That claim therefore failed for want of proof. 9. In the end, I do find that the claim was partly proven. To that end, I hereby order as follows: - * + 1. **Judgment is hereby entered in favor of the claimant as against the respondent in the sum of Kshs. 80,000/=.** 2. **The amount shall attract interest at court rate from the date of judgment till payment in full.** 3. **The claimant is awarded costs of the suit assessed at Kshs. 8,000/=.** 10. The respondent is awarded 30 days stay of execution. **It is so decreed.** **DATED** and **DELIVERED** via **CTS** at **NAIROBI** this 14TH Day of August 2026 **** **HON. GLADYS. W. KIAMAH** **RESIDENT MAGISTRATE/ADJUDICATOR**