https://new.kenyalaw.org/akn/ke/judgment/scc/2026/90

Makungu v Ngambona (Claim E96695 of 2025) [2026] SCC 90 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] SCC 90 (KLR) Republic of Kenya In the Milimani Small Claims Court Claim E96695 of 2025 GW Kiamah, RM July 3, 2026 Between Abigael Makungu Claimant and Madalene Z Ngambona Respondent Judgment 1.The claimant instituted this claim vide the statement of claim dated 17/6/2025 seeking judgment against the respondent for Kshs. 609,000.00/=, costs of the suit and interest. It was the claimant’s case that the respondent borrowed Kshs. 500,000/= from the claimant out of which Kshs. 300,000/= was to be repaid in December 2023, while Kshs. 200,000/= was to be paid on demand. That the respondent defaulted causing the claimant to report the issue at Kitisuru Police Station where the respondent was summoned. That the parties executed an agreement dated 21/3/2023 whereby the respondent committed to settle the loan within 60 days which lapsed on 21/5/2025. The claimant thus sought the loan balance and interest of Kshs. 109,000/=. 2.The respondent filed a response dated 18/9/2025 and averred that the purpose of the loan failed to yield profits hence the delay in payments. That she had refunded Kshs. 380,000/= out of Kshs. 500,000/= loaned to her. That the agreement done at the police station was executed out of coercion and duress. The respondent however sought to settle the acknowledged amount of Kshs. 120,000/= in monthly instalments. 3.The claim proceeded under Section 30 of The Small Claims Court Act thus the witness statements and documents filed by the parties were produced by consent. The claimant filed submissions dated 4/12/2025. The respondent’s opted to rely on her pleadings. 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. 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 have considered the entire record. The respondent did not deny receiving the loan amount of Kshs. 500,000/=. Though she claimed that she had repaid Kshs. 380,000/=, the same was not supported by evidence. There was no proof of inter alia payment either by way of bank transactions, Mpesa statements transfer records, acknowledgements or receipts. The agreement dated 21/3/2025 provided for a loan of Kshs. 500,000/= and there was no evidence of subsequent payment. The allegations of coercion and duress in execution of that agreement were unsupported. 8.Despite alleging repayment of Kshs. 380,000/=, the respondent did not produce any documentary material in support of that assertion. Further, there was nothing in the party’s correspondence to indicate that any payment was made towards reducing the loan. 9.It was upon the respondent to produce cogent evidence to prove the claimed re-payments. I do place reliance on the case of Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, where the Court of Appeal held that the burden of proof in civil cases is discharged on a balance of probabilities and that a party must adduce evidence upon which a court can properly find in his favour. In the present case, once the claimant established that the loan was advanced and remained unpaid, the evidential burden shifted to the respondent to demonstrate repayment. The respondent failed to discharge this burden. 10.As such, I am convinced that the respondent owed the claimant the total amount of Kshs. 500,000/=. However, the claimant’s claim for interest of Kshs. 109,000/= was unsupported noting that there was nothing to indicate that the parties had agreed on any contractual interest terms. As such, the claim for interest fails. 11.In the end, I do find that the claim is 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. 500,000/= plus interest at court rate from the date of judgment till payment in full.2.The claimant is awarded costs Kshs. 35,000/=. 12.The respondent is awarded 30 days stay of execution.It is so decreed. DATED AND DELIVERED AT NAIROBI VIA CTS THIS 3RD DAY OF JULY 2026HON. GLADYS W. KIAMAHRESIDENT MAGISTRATE/ADJUDICATOR