https://new.kenyalaw.org/akn/ke/judgment/scc/2026/183

Kipkurui v Maiyo (Commercial Case E607 of 2026) [2026] SCC 183 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] SCC 183 (KLR) Republic of Kenya In the Small Claims Court at Eldoret Commercial Case E607 of 2026 ME Aligula, RM July 24, 2026 Between Evanson Kipkurui Claimant and Johnstone Sang Maiyo Respondent Judgment 1.Vide the statement of claim dated 7th May, 2026 the Claimant instituted this claim seeking judgment of Kshs.700,000/-, compensation and costs. The claimant averred that on or about the January, 2026 the claimant and the respondent entered into a car hire business with an agreement that the claimant would pay ksh 150,000/- on every 18th day of the month in respect of motor vehicle registration Number KCC 471 B Toyota pickup. That the claimant herein dutifully fulfilled his obligation by paying the said amount from the month of January, February and March 2026. On 16th April, 2026, the vehicle was towed and carted away by auctioneers from Eldoret and placed in a car yar in Nairobi to the detriment of the claimant as he was unaware of an existing charge against it. 2.The claimant further maintained that unknown to him, prior to the agreement, the respondent had applied for a loan at Ngao credit limited and registered a charge against the suit motor vehicle without informing him and in a bid to safeguard the charge the respondent requested the claimant for some money to clear the outstanding arrears as well as storage charges totaling to ksh 700,000/-. That the said money was sent via the respondent’s bank account and effort to have him refund the same have been futile. 3.The respondent filed a response to the statement of claim together with a counter- claim dated 22nd May, 2026. the respondent denied the claim and stated that on or about the 18th January, 2026 the claimant entered into a car hire agreement with the respondent whereby the respondent hired out the said vehicle to the claimant at an agreed monthly charge of ksh 150,000/-, the claimant took possession and control of the motor vehicle and undertook to pay the agreed car hire charges promptly, use the vehicle for transportation of one engineer, return the same in good condition and exercise due care and diligence while using the vehicle. The claimant avers that in breach of the said agreement the claimant failed to pay the car hire charges amounting to ksh 214,000/-, handled the vehicle negligently and recklessly causing extensive damages to it and the respondent incurred expenses in repairing he same and incurred a total loss of ksh 668,000/-. He prayed for the counter- claim to be allowed and for the claim to be dismissed with costs. 4.The matter proceeded for hearing by way of viva voce evidence, both parties testified without calling witnesses. CW 1, Evanson Kipkirui Kiptarus, testified and adopted his witness statement dated 7th May, 2026, as his evidence in chief, and produced documents on his list dated 7th May, 2026 as C exhibit 1- 3. On cross examination the witness stated that in January, 2026 he looked for the respondent for a car hire business of motor vehicle registration number KCC 471B. That he was supposed to start paying the ksh 150,000/- on 18th January, 2026 and the balance was to be paid in instalments on the 18th day of every month. The witness confirmed that as at 16th April, 2026 he had paid ksh 80,000/- only and as such had defaulted. It was CW 1's testimony that he had hired the vehicle to transport engineers. That upon his default, the vehicle was taken by auctioneers on 16th April, 2026. The witness was referred to WhatsApp conversation between him and the respondent and he confirmed that he knew the vehicle had damages. It was his testimony that he knew the respondent had a loan with Ngao credit limited but he could not confirm the exact figure. 5.In re-examination the witness stated that the vehicle was taken by auctioneers because the respondent had not paid his loan and the vehicle was in good condition. That the respondent had told him the loan was for ksh 420,000/- and requested to sell the vehicle to him and that at the time of the transaction he did not know of the loan. The Claimant confirmed that the amount sent via KCB bank was ksh 576,500/-, and that no mpesa statement had been filed before court. The witness closed by noting that the respondent sold the vehicle to him but they did not have a written sale agreement. The case was closed at this point. 6.The respondent, Johnstone Sang Maiyo, also adopted his statement dated 25th May, 2026 as his evidence in chief, produced documents on the list dated the same date as R exhibit 1-9. He testified that the vehicle was towed by auctioneers upon his instructions because he had a pending loan arrears and the claimant had defaulted to pay him. He further stated that the vehicle was in a bad state when he took it, he called the assessor who assessed the vehicle and recommended some repairs, the claimant was aware of the same and accepted to cater for the repair expenses. It was the respondent’s testimony that he incurred expenses making the repairs for two weeks and during that period, he had to get another vehicle to give to his other clients. The witness further stated that the vehicle had been hired to the respondent for 3 months for ksh 450,000/-. 7.On cross examination, the witness confirmed that they had a car hire agreement for ksh 150,000/- every 18th day of the month, that in the month of February he received partial payment not the full agreed amount and in the month of March the claimant failed to pay. Subsequently, on 16th April, 2026 he took the vehicle. He stated that the claimant was aware he had a loan to service with Ngao credit Limited. The witness went on to state that the claimant owes him ksh 214,000/- plus repair costs. He confirmed that the claimant was to repair the vehicle since it had been given whilst in good condition. He confirmed that there was no accident involving the suit vehicle but he engaged a private assessor to assess the damage on the vehicle. He stated that the claimant paid him in instalments, and the total as per what was confirmed in Court was ksh 448,200/-. It was his testimony that the claimant has defaulted and that is why he reposed the vehicle. In re-examination, he clarified that the ksh 150,000/- agreed upon was not diligently paid. He concluded by stating that the money paid in was to cover the car hire arrears and repairs done. The respondent closed its case as well. At the time of writing this judgment none of the parties had filed submissions pursuant to the court’s direction for the same to be filed within 5 days. Having carefully analyzed the pleadings and evidence this court finds the following issues arise for determination:a.Whether the claimant has proved his claim for ksh 700,000/-b.Whether the claimant has proved his counter claim for ksh 668,000/-c.Who is to bear the costs of the suit? 8.On the first issue, there is no dispute that the parties entered into a motor vehicle hire agreement in respect of Motor Vehicle Registration No. KCC 471B. The agreed amount was ksh 150,000/- payable on every 18th day of the month as per the testimony of parties herein. The said amount was to be paid from 18th January, 2026. It is not in doubt that by 16/4/2026 when the vehicle was allegedly towed by auctioneers the claimant herein had defaulted in his payment. However, the claimant sent to the respondent money totaling to a sum of ksh 576,500/- paid on different dates being ksh 20,000 on 23/2/2026, ksh 40,000/- on 6/3/2026, ksh 20,000 on 16/4/2026, ksh 100,000 on 22/4/2026, ksh 100,000 on 23/4/2026, ksh 21,500/- on 24/4/2026, ksh 50,000/- on 27/4/2026, ksh 100,000 on 27/4/2026, ksh 30,000/- on 29/4/2026, and ksh 95,000/- on 28/4/2026. The respondent equally filed an mpesa statement showing the amount he had received from the claimant via mpesa totaling to ksh 68,700/- and such the total amount sent by the claimant was ksh 645, 200/-. 9.The claimant testified that the claimant asked to sell the vehicle to him, there is nothing on record to demonstrate that the vehicle was sold to the claimant, I only rely on what parties indicated to this court. It is not disputed that the car was hired for 3 months of which the claimant was to pay ksh 450,000/- In as much as he defaulted within the first agreed months, later, he sent some amounts of money to the respondent which the respondent indicates was payment of the arrears and the repair charges. 10.A look at the message screenshot, which is not disputed by the claimant, when he was told by the respondent that the vehicle was being pulled out because he had a demand letter and bills to settle, the claimant responded and I quote “its alright brother I have no say”, As such seems it was not news to the claimant that the respondent had debts to settle and the vehicle was to be taken due to default. The respondent also shared with the claimant the photographs of the vehicle showing the damages sustained and the claimant indicated that he will recover the damages, from whom? This court wonders. 11.Further, when the claimant was told “suspension yote worn out”, his reply was” Nomaa”, upon the repairs being done and the windbreakers fitted, the claimant was informed, and in the text his response was “wow iko fine” and when told the quotation for the suspension was being waited for, the claimant acknowledged, essentially, there seems to be an admission of the damage on the vehicle by the claimant which he intended to recover from someone who was not privy to their engagement. The flow of their chat seems very smooth, a bargain that went awry.? Maybe. 12.I have looked at the assessment report prepared by Maka automotive works and assessors dated 18th April, 2026, it confirms the parts damaged, list of parts to be replaced duration of the repair being 20 days, and the estimated costs of ksh 303, 500/-. From the above analysis, it is not doubted that the vehicle was damaged and was repaired and the claimant was informed, at least he did not dispute in their conversation. The assessor was paid ksh 5,000/- for the exercise and the vehicle was then repaired at a cost of ksh 289,000/- as per the receipt produced dated 2/5/2026. Further, the vehicle was towed which at a cost of ksh 60,000/- as per the receipt from Ojana Auto garage, The respondent prayed for ksh 214,000/- as outstanding car hire charges and ksh 100,000/- loss of user during the repair period. 13.The respondent is seeking for outstanding car hire charges of ksh 214,000/- it is not disputed that as at the time of towing the vehicle the claimant had defaulted but he sent money to the respondent later and a such the figure of ksh 450,000/- is covered in the total sum paid and the balance from the amount sent to the respondent stands at ksh 195, 200/-. With respect to loss of user, the same has not been proved by any evidence In Macharia vs Kiruthi 2024 KOEHC 3685 KLR The High Court declined a claim for loss of user notwithstanding proof that the vehicle had been written off, reiterating that such damages are not automatically recoverable and must be strictly proved. I associate myself with the High court decision, the respondent has not proved loss of user and the same is not awarded. 14.With respect to repairs done, towing and the assessment fees, it is not in doubt the same was done as the receipts produced herein and subsequently the respondent is entitled to ksh 354,000/- less what the claimant had sent to the respondent in excess ksh 195, 200/-, the amount due is ksh 158,800/-. I note further that the claimant never responded to the counter claim raised by the respondent he concentrated on his claim, nevertheless, in spirt of article 159 of the constitution and in the spirit of ensuring that justice is not only done but seen to be done I have considered both the claim and counter claim together and grant the following orders: 15.The claimant has failed to prove its case on a balance of probability in the circumstances:a.The claim is dismissedb.The counter claim is allowed to the extent that the respondent is entitled to a sum of ksh 158,800/-.c.Each party to bear its own costs.Stay of 30 days execution is granted. JUDGEMENT DATED AND DELIVERED AT ELDORET THIS 24TH DAY OF JULY 2026.M. E. ALIGULARMIn the presence of C/A lepatoyeMr. G.K Okara h/h for Mrs. Okara for the claimantRespondent: Ms. Monda