Mohamed v Mahat (Commercial Case E023 of 2026) [2026] SCC 177 (KLR) (22 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT LAMU** **SCC COM NO. E023 OF 2026.** **THANAAN ALLAH MOHAMED........................................................................CLAIMANT** **-VERSUS-** **YUSUF ALI MAHAT………………………………………………..…………..….RESPONDENT** **JUDGEMENT.** **BRIEF FACTS.** 1. It is the claimant’s case that the respondent has not paid him Kshs.50,000/= an agreed amount for managing his 2 fishing boats namely MV Al-hajj and Aran for 2 trips. It was an agreement between the 2 of them that the cost per trip would be Kshs.25,000/= 2. The respondent in principle does not deny that the trips were taken by the claimant and that the agreed price per trip was Kshs.25,000/=. He seems to have an issue with other businesses they had with the claimant in terms of boat repairs which both agree are distinct and separate from the issue of trips and infact the respondent asserts those other businesses he used to pay the claimant in a different account from those of the trips. 3. The dispute arose after the parties mutually agreed to terminate the contract between them. The contract in question was signed by both parties on 6th November 2025. 4. The matter proceeded by oral evidence. I have considered the testimonies of both parties as well as the exhibits produced. **ISSUES FOR DETERMINATION** 1. The issues that are for determination are as follows; 2. **Whether the claim is merited.** 3. **Who bears costs of the claim.** 4. On the first issue, the respondent denies the claim on the basis that the claimant has to account for all the monies sent to him from the time they entered into the agreement and the respondent has produced an Mpesa statement for Kshs.573,000/=. 5. He takes the view that the claimant has to account for all those moneys amounting to Kshs.573,000/=. I find this strange as the amounts in the statement were not an issue until the debt fell due and immediately after the contract was terminated. 6. The respondent in his testimony seemed to be shifting goal posts and the court was at a loss as to what exactly was the position with regards to this debt. At one point he claims he has already paid him but when asked to show proof of the money paid he was unable to do so. The respondent was then tasked to make sense of the conversation between him and the claimant if that was indeed the case. The respondent admitted the chats were between him and the claimant but was quick to add that the claimant has only filed portions of the chats that were favourable to his case. 7. I mean any litigant would do that and it is incumbent upon the other party to also file those that are favourable to his case. That is the whole essence of evidence in a civil and criminal trial. It is only after such an exchange in terms of evidence that a court is able to make a conclusive determination as to the merits or otherwise of the claim or any defence thereto. 8. When a party asserts that there are messages and/or chats that are favourable to him but he fails to produce the said chats to counter what the opposing party has filed, the court as of necessity has to draw a negative inference that if such chats were availed by the complaining party they would be injurious to his/her case and would infact support the opposing party’s case and that is why they are not on the record. Such is the situation obtaining in this matter. 9. A look at the chats in question as filed by the claimant, it is clear without regurgitating the exact words that the respondent admits the claim and infact makes several promises to pay unfortunately he never kept any of them. The respondent after admitting that the chats are between him and the claimant he is estopped from denying such liability when he has clearly admitted the claim in question. 10. The issues being raised now on accountability of the moneys sent to the claimant are an afterthought and a desperate move to deny liability and deflect issues. They are not genuine concerns in my view. If indeed they were, he ought to have raised them in the chats as a precondition to the debt being paid and not raise it at the hearing not even in his pleadings. I should add at this point that parties are bound by their pleadings and there is no trial by ambush in this day and age. 11. The two trips having been taken and both parties having agreed that each trip would cost kshs.25,000/=, I do find and hold the respondent is bound to pay for the 2 trips as agreed in the contract between them. 12. On the 2nd issue of costs, it is evident with the finding above this claim is one for allowing and given the fact that costs follow events and are awarded to the successful party, costs are hereby awarded to the claimant. 13. The said costs are hereby assessed at Kshs.5,000/= payable by the respondent. **CONCLUSION AND DISPOSITION.** 1. The upshot of the foregoing and having considered the evidence and material before me I make the following final orders; 2. **The claimant’s claim contained in the statement of claim dated 10/6/2026 is allowed in the sum of Kshs.50,000/=.** 3. **Costs of Kshs.5,000/= and interest of the amount in (a) above at court rates from the date of filing until payment in full are awarded to the claimant as well.** 4. Orders accordingly. **DATED, SIGNED AND DELIVERED AT VOI SMALL CLAIMS COURT THIS…22nd ..DAY OF …July…2026.** **F.M. MULAMA** **ADJUDICATOR/RM** **In the presence of:** Court Assistant:- Abuswaleh Thanaan Allah Mohamed. Yusuf Ali Mahat.