https://new.kenyalaw.org/akn/ke/judgment/scc/2026/224

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT NAIROBI** **SCCOMM NO. E6765 OF 2026** **PETER KINGORO………….………...............……...……….CLAIMANT** **VERSUS** **PETER MUTHINI…………….………………………………RESPONDENT** **JUDGMENT** 1. The claimant instituted this claim vide the statement of claim dated 23/6/2026 seeking judgment against the respondent for Kshs. 500,000/= plus costs and interests. It was the claimant’s case that he issued the respondent with a friendly loan of Kshs. 500,000/= on 12/1/2026 in cash and despite demands, the same remained unpaid. 2. There was no response on record despite that the respondents were given opportunities to file their responses, statements and documents. The respondents failed to comply thus the claimant’s averments remained uncontested. 3. The matter proceeded under ***Section 30 of the SCC Act*** and the claimant filed submissions dated 7/8/2026. I have considered those submissions alongside the pleadings and evidence before court. The main issue for determination is whether the claimant has proven the claim on a balance of probabilities. 4. The Court of Appeal in **Mumbi M'Nabea v David M.Wachira [2016] eKLR** while discussing the standard of proof in civil liability claims in our jurisdiction had this to say: - ***“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not.”*** 1. ***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. As such, the burden of proof lies on the party alleging a fact of which correlative rule is that he who asserts a matter or a fact must prove but he who denies it need not prove it. The party on whom lies the burden must adduce evidence of the disputed facts or failing his contention. Simply put, he who alleges must prove. See **Daniel Muthuka Ngui v Bernard Nganda Mutua & another [2019] eKLR.** 2. Notably, the fact that the respondent failed to enter appearance or file a defence does not automatically entitle the claimant to judgment. The legal burden of proof remains throughout on the Claimant pursuant to ***Sections 107 and 109 of the Evidence Act.***Even in undefended proceedings, the claimant must adduce sufficient evidence to prove the claim on a balance of probabilities. A default judgment is not a substitute for proof of a claim, particularly where the relief sought is unliquidated or requires evidentiary substantiation 3. In **Mweni v Kagai & another (Civil Appeal 17 of 2021) [2022] KEHC 17264 (KLR),** the High Court reiterated that a plaintiff must prove his case on a balance of probabilities and is not entitled to judgment merely because the defence has not controverted the evidence. See also **Karugi & Another v Kabiya & 3 Others [1987] KLR 347,** where the court held that the burden of proof remains with the plaintiff and is not lessened merely because the case is undefended. 4. In the case before me, though the loan was issued in cash, there was sufficient evidence on record more so vide the party’s correspondence confirming that the transaction occurred. However, as per the claimant’s own texts, the loaned amount was Kshs. 400,000/= whereas Kshs. 100,000/= was said to be the interest charged. 5. In his responses, the respondent acknowledged the loan and committed to settle the same on various occasions. As such, I am convinced that the claimant indeed loaned the respondent Kshs. 400,000/= and the same is awardable. 6. As regards the claim for interest, I do note that the loan attracted interest of Kshs. 100,000/= within a few days of disburse of the principal amount of Kshs. 400,000/=. I do find that the interest terms applied were unconscionable, more so noting that the same was a friendly loan. Application of such terms would lead to a rapid and disproportionate escalation of the debt beyond the principal sum advanced and eventually produce a debt that bears no reasonable relationship to the amount borrowed and would result in an oppressive burden upon the borrower. 7. As such, enforcement of the impugned interest amount would offend the principles of fairness, equity and good conscience that guide the Court in the enforcement of contractual obligations. While parties are generally bound by the terms of their contract, this Court retains discretion to decline enforcement of terms that result in unjust, oppressive, or unconscionable outcomes. In the circumstances, the Court finds the claimed interest to be disproportionate and inequitable and the same is not enforceable. 8. In the end, I do find that the claimant successfully proved his claim on a balance of probabilities albeit partly. To that end, I hereby order as follows: - 9. **Judgment is hereby entered in favor of the claimant as against the respondents jointly and severally for the sum of Kshs. 400,000/=.** 10. **The sum shall attract interest at court rates from the date of judgment till payment in full.** 11. **The claimant is awarded costs of the claim assessed at Kshs. 20,000/=.** 12. The respondent is granted 30 days stay of execution. **It is so decreed.** **DATED** and **DELIVERED** at **NAIROBI** this 14th Day of August 2026 **** **HON. GLADYS. W. KIAMAH** **RESIDENT MAGISTRATE/ADJUDICATOR**