https://new.kenyalaw.org/akn/ke/judgment/scc/2026/197

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT NAIROBI** **MILIMANI LAW COURTS** **SCCOMM NO. E99879 OF 2025** **EMART MOBILE…………………….…............…..……............CLAIMANT** **VERSUS** **BEGEM CONSULT LIMITED…………....……….……....1ST RESPONDENT** **SIMON NGANDU KANGARI…………………………….2ND RESPONDENT** **JUDGMENT** 1. The claimant instituted this claim vide the statement of claim dated 4/9/2025 seeking judgment against the respondent for the sum of Kshs. 700,000/= plus costs and interests. It was on the basis that the claimant loaned the 2nd respondent Kshs. 500,000/= vide the 1st respondent’s account and the same was payable in four installments but the respondents defaulted causing the claimant to incur legal costs of Kshs. 50,000/= and suffer financial loss of Kshs. 150,000/=. 2. The respondent filed the response dated 6/1/2026 denying the claim. Vide the 2nd respondent’s witness statement dated 6/1/2026, the respondent stated he only became aware of the claimant upon filing of the claim and had never sought any loan from the claimant. 3. The claim proceeded under **Section 30** of the **Small Claims Act** and the claimant filed submissions dated 12/6/2026 whereas the respondent’s were dated 18/6/2026. 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. It was the claimant’s case that he loaned the respondents Kshs. 500,000/=. The claimant produced the Pesalink transaction receipt showing transfer of Kshs. 500,000/= from an account in the name of the claimant at Stanbic Bank to an account in the 1st respondent’s name at Equity Bank on 7/7/2024. The respondents denied receipt of any loans. 6. It is trite that the claimant bore the duty to prove not only that Kshs. 500,000/= was transferred to the 1st respondent’s account, but also that the transfer constituted a loan repayable within four months. While the Pesalink receipt produced by the claimant demonstrates that Kshs. 500,000/= was transferred to the 1st respondent on 7/7/2024, it does not, by itself, establish the purpose of the transfer noting that there was no narration on the receipt. 7. Notably, there was no loan agreement, acknowledgement of debt, correspondence, text messages, emails, demand for repayment, bank narration, or any other evidence produced to demonstrate that the respondents requested for a loan or agreed to repay the amount advanced. 8. Though the claimant alleged that the loan fell due on 7/11/2024, there was no correspondence on record showing any request for repayment, acknowledgment of indebtedness, promise to pay, demand for settlement, or response from the respondents. In an age where commercial transactions are ordinarily accompanied by electronic communication, the complete absence of any documentary trail concerning the alleged loan significantly weakens the claimant’s case, more so where the respondents deny any transactions or knowledge of the claimant. 9. Though there was proof of transfer of Kshs. 500,000/=, I do find that the mere proof of transfer of money did not necessarily prove the existence of a loan. As such, the court was unable to infer the existence of a loan merely from proof of remittance without evidence demonstrating an agreement to repay. 10. In **Kirugi & Another v Kabiya & 3 Others [1987] KLR 347,** the Court of Appeal held that the burden of proof rests upon the party who asserts a fact. The burden therefore remained upon the claimant to prove, on a balance of probabilities, that the transfer constituted a loan. The claimant failed to discharge that burden. 11. As such, I am not satisfied that the claimant proved the existence of a loan agreement or a corresponding obligation to repay. 12. The upshot is that the claim is found to be unmerited and the same is hereby dismissed. 13. Each party shall bear its own costs. **It is so decreed.** **DATED** and **DELIVERED** via **CTS** at **NAIROBI** this 7TH Day of August 2026 **HON. GLADYS. W. KIAMAH** **RESIDENT MAGISTRATE/ADJUDICATOR**