https://new.kenyalaw.org/akn/ke/judgment/scc/2026/146

King’ara v Syuki & another (Claim E108516 of 2025) [2026] SCC 146 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] SCC 146 (KLR) Republic of Kenya In the Milimani Small Claims Court Claim E108516 of 2025 GW Kiamah, RM July 10, 2026 Between Kelly Wacheke King’Ara Claimant and Paul Usui Syuki Respondent and Martha Oder Third party Judgment 1.The claimant instituted this claim vide statement of claim dated 11/12/2025 seeking judgment against the respondent for Kshs. 306,000/=, costs of the suit and interest on the basis that she contributed Kshs. 6,000/= per day in a merry go round with 9 members where the respondent was the treasurer and she was to receive Kshs. 918,000/= between 4/5/2025 and 31/1/2026. That she received the amounts less Kshs. 306,000/= which remained due despite demand. 2.The respondent filed a response dated 3/2/2026 denying the claim and allocated any liability on the third party on the basis that she failed to remit her daily contributions amounting to Kshs. 306,000/=. That the 3rd party had enrolled the claimant and later failed to remit her daily payments. That the rules of the group provided that any member who was enjoined by an existing group member was required to shoulder the responsibility of paying any amount due by such member in the event of default. That the 3rd party was such liable to settle the claim. The respondent took out the 3rd party notice dated 3/2/2026. 3.The claim proceeded under Section 30 of The Small Claims Court Act and the claimant filed submissions dated 27/4/2026 whereas the respondent’s were dated 18/5/2026. I have considered the submissions on record as well as the pleadings and documents before this court. 4.I have seen and considered the pleadings, testimonies, evidence and submissions before court. The main issue for determination is whether the claimant has proven that the claim as against the respondent, and whether the respondent successfully transferred liability to the third party. 5.The standard of proof in civil claims is on a balance of probabilities. See the Court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR. 6.Sections 107, 108 and 109 of the Evidence Act, Chapter 80 of the Laws of Kenya places the burden of proof of a fact on the person who wishes the court to believe in the existence of such fact. 7.I do note that the respondent did not deny that the sum of Kshs. 306,000/= was not remitted to the claimant. The claimant also filed the transaction to support the claim. As such, the debt of Kshs. 306,000/= was proven. 8.As regards liability, I do note that though the respondent took out third party notice, the third-party notice was not prosecuted. There was no evidence that the same was served on the intended third party so as to allow her a chance to defend herself. Further, when the matter came up for mention on 13/5/2026, the respondent did not mention any pending third-party notice and instead requested for time to file submissions on the claim. As such, liability was not successfully transferred to any third party. 9.Vide the response, the respondent admitted that he received the member’s daily contributions. The respondent was the custodian of those funds and he ought to have remitted the same to the claimant. As the treasurer, the respondent occupied a position of trust regarding members' funds. Once the claimant proved payment of her contributions, the burden shifted to the respondent to account for the funds. 10.The respondent did not produce any documents to confirm the group’s account and members contributions. He also failed to support the allegation that he would deposit the daily sums to the group’s joint account, or the allegation that another member failed to remit her sum. Even then, noting that it was not denied that the claimant sent her daily contributions daily, the claimant could not be made liable for another member’s non-compliance. 11.Any non-compliance ought to have been followed up with the non-compliant member individually. Though the respondent claimed that the rule of the group was that the member introducing another member bore responsibility for defaults, the rule was not produced by evidence. There was nothing to support existence of such rule or that the claimant was aware of it. 12.In the circumstances, I do find that the claimant ought to have received the full amount. As such, the claim was successful and the sum of Kshs. 306,000/= was awardable. 13.The upshot is that the claim is found to be merited. To that end, I hereby order as follows: -1.Judgment is hereby entered in favour of the claimant as against the respondent for the sum of Kshs. 306,000/= plus interest at court rate from the date of judgment till payment in full.2.The claimant is awarded costs Kshs. 25,000/=. 14.The respondent is awarded 30 days stay of execution. It is so decreed. DATED AND DELIVERED AT NAIROBI VIA CTS THIS 10TH DAY OF JULY 2026HON. GLADYS .W. KIAMAHRESIDENT MAGISTRATE/ADJUDICATOR