https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12076

Moiz Motors Limited v Ogega (Civil Appeal E168 of 2024) [2026] KEHC 12076 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12076 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E168 of 2024 J Ngaah, J July 31, 2026 Between Moiz Motors Limited Appellant and Nancyline Asuguta Ogega Respondent (Being an appeal and cross-appeal from the judgment of Hon. J. W. Mwangi, Resident Magistrate/Adjudicator, delivered on 24 May 2024 in Small Claims Court at Mombasa SCCCOMM No. E907 of 2023) Judgment Introduction and background 1.This judgment determines both the appellant’s appeal and the respondent’s cross-appeal against the judgment of the Small Claims Court at Mombasa (Hon. J. W. Mwangi, Resident Magistrate/Adjudicator) delivered on 24 May 2024 in SCCCOMM No. E907 of 2023, by which judgment was entered for the respondent, the claimant before that court, against the appellant in the sum of Kshs 390,000/= together with the costs of the claim. 2.The material background is largely undisputed. By a hire purchase agreement made on 14 October 2022, the respondent agreed to purchase from the appellant motor vehicle registration number KDJ 125V, a Toyota Axio, chassis number NRE161-0002182. The agreed price was Kshs 1,900,000/=. The respondent paid a deposit of Kshs 450,000/= on the date of the agreement, leaving a balance of Kshs 1,450,000/= which was payable in twenty-four equal monthly instalments of Kshs 60,416/=. 3.The registered owner of the vehicle was Motorology Limited which, by a letter of even date with the agreement, authorised the appellant to sell the vehicle and to receive funds on its behalf. It was accordingly the appellant that dealt with the respondent throughout, both in concluding the sale and in receiving her payments; its own sales manager, in a witness statement filed in the trial court, described the transaction as one in which the respondent approached Motorology Limited “through its authorized agent Moiz Motors Limited”. 4.I note, in passing, that the statement of claim and the judgment of the trial court describe the vehicle as “KDJ 152V”. The hire purchase agreement, the registration certificate, the insurance documents and the photographs on the record all identify it as KDJ 125V of the chassis number I have set out. It is not in doubt that one and the same vehicle was the subject of the transaction and of the suit, and nothing turns on the discrepancy. 5.On 22 July 2023, while in the respondent’s possession, the vehicle was involved in an accident and was written off. It was comprehensively insured with MUA Insurance (Kenya) Limited in the joint names of the respondent and Motorology Limited. By a motor discharge voucher dated 31 August 2023, the insurer settled the claim on a total loss basis at Kshs 1,425,000/=; and by a real time gross settlement effected on 20 September 2023, evidenced by a SWIFT confirmation on the record, it remitted that sum to Motorology Limited. The claim, the response and the judgment of the trial court 6.By a statement of claim dated 24 October 2023, the respondent sued the appellant for Kshs 700,000/= with costs. Her case was that, by the date of the accident, she had paid the appellant a total of Kshs 860,000/= made up of the deposit and monthly instalments; that upon the write-off, the insurer paid out the full value of the vehicle; that the appellant could not both keep the insurance settlement and retain her payments; and that, having voluntarily deducted Kshs 160,000/= as interest for the seven months or so during which she had had the use of the vehicle, she was entitled to a refund of Kshs 700,000/=. 7.Interlocutory judgment in default was initially entered for the respondent on 29 November 2023 for the full sum claimed. On the appellant’s application dated 23 February 2024, however, that judgment was set aside and the appellant was granted leave to defend the claim. 8.By its response to the statement of claim dated 18 March 2024, the appellant denied owing the respondent anything and counterclaimed Kshs 95,000/=, said to be the balance payable by the respondent on the purchase of the vehicle. In the supporting witness statement of its sales manager, Nicholus Ngoli Inyangala, the appellant contended that the respondent had defaulted on her instalments; that it instructed auctioneers to repossess the vehicle, only for them to establish that it had been involved in an accident; and, remarkably, as it will shortly appear, that “the insurance did not make any payments into the accounts of the Respondent”. 9.Among the documents which the appellant itself filed was a financial statement of the account it maintained for the transaction. That statement debits the respondent with the purchase price of Kshs 1,900,000/=, an auctioneer’s fee of Kshs 55,000/= and a sum of Kshs 25,000/= refunded to the insurer; and credits her with the deposit of Kshs 450,000/= paid on 14 October 2022, an instalment of Kshs 200,000/= paid on 18 May 2023, and the insurance settlement of Kshs 1,425,000/= received on 20 September 2023. The credits total Kshs 2,075,000/= against debits of Kshs 1,980,000/=. 10.The claim proceeded to hearing on 14 May 2024. Although the hearing date had been taken in the presence of both parties, and a hearing notice was in any event served, the appellant neither attended nor called any evidence. The respondent testified and produced her documents. Both parties thereafter filed written submissions. 11.In the judgment now under challenge, the learned trial magistrate found that the documents proved payments of Kshs 550,000/= by the respondent as at the date of the accident, that being the amount vouched by receipts issued in the appellant’s name. The learned magistrate declined to act on the mobile telephone messages and the bank statement by which the respondent sought to prove further payments of Kshs 220,000/=, that is, Kshs 200,000/= on 18 May 2023 and Kshs 20,000/= on 4 July 2023, both transferred to account number 01136392340300, for the reason that those documents:…do not list or bear the recipient’s name and it is unclear to whom the said monies were sent to. 12.The learned magistrate went on to find that the insurer had assessed the value of the vehicle at Kshs 1,425,000/= and had paid out that sum; that the appellant could not “be said to keep the full insurance sum paid to them and further keep the claimant’s payment for the vehicle”; and, guided by Patrick Kimutai Kiprono v Erick Kipkurgat Kiprono [2019] eKLR on unjust enrichment, held that the claim had been “partially proven to the requisite threshold” and entered judgment for the respondent in the sum of Kshs 390,000/= together with the costs of the claim. The appeal 13.Aggrieved, the appellant preferred the present appeal on the eleven grounds set out in its memorandum of appeal dated 19 June 2024. Shorn of repetition, the complaint is that the learned magistrate erred in law and in fact in: holding that the respondent had partially proved her claim, without appreciating that the burden of proof is in no way lessened where a matter proceeds by way of formal proof; awarding the respondent Kshs 390,000/= “without an explanation of how this huge sum was arrived at”; disregarding what the appellant terms the proof that it was, in fact, the respondent who was indebted to it, and the appellant’s evidence and submissions to that effect; finding for the respondent when, in the appellant’s view, she had adduced no proof of payments made towards the purchase of the vehicle, or that the insurer had paid the appellant the purchase price; failing to deduct the sums owing to the appellant by the respondent; and failing to consider that the respondent had enjoyed the use of the vehicle without paying for it in full, thereby rendering a judgment said to be “unfair, biased, unjust and an absurdity to the norms of equity and justice”. The appellant prays that the appeal be allowed with costs and that the judgment of the trial court be set aside. The cross-appeal 14.The respondent, for her part, filed a cross-appeal dated 22 July 2024 on three grounds. First, that the learned magistrate erred in law and in fact in finding that the respondent had only partially proved her case to the extent of the receipted Kshs 550,000/=, when the appellant had expressly admitted that the respondent paid a total of Kshs 650,000/= before the vehicle was involved in the accident. Secondly, that the learned magistrate erred in rejecting the messages and bank statement evidencing payments of Kshs 220,000/= to account number 01136392340300 for want of the recipient’s name, when the appellant had not objected to those documents and had acknowledged the payments in its own list of documents, and when section 19 of the Small Claims Court Act in any event empowers the court to summon any witness and to call for the production of any document or record relevant to the proceedings. Thirdly, that the learned magistrate failed to make an enquiry into the exact amount the respondent had paid, and the amount the appellant had expressly acknowledged, before rendering judgment. The respondent prays that the cross-appeal be allowed, that the judgment be set aside and judgment for Kshs 700,000/= be substituted in her favour, and that the appeal be dismissed with costs. 15.The appeal and the cross-appeal fall to be determined on the memorandum of appeal, the cross-appeal and the record of appeal filed on 6 March 2025, together with the parties’ written submissions, to which I now turn. The appellant’s submissions 16.In its written submissions dated 13 June 2025, filed by Osoro Juma & Company Advocates, the appellant condensed its grounds into four issues: whether the trial court misapprehended the standard and burden of proof applicable to formal proof proceedings; whether it erred in awarding Kshs 390,000/= without a legal and evidentiary basis; whether it failed to account for the appellant’s evidence demonstrating indebtedness on the part of the respondent; and whether it ignored the contractual framework and the principles governing hire purchase transactions. 17.On the first issue, counsel submitted that the burden of proof is in no way lessened where a matter proceeds by way of formal proof, citing Karugi & another v Kabiya & 3 others [1983] eKLR; that under sections 107 and 108 of the Evidence Act, Cap 80, as expounded by the Court of Appeal in Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] eKLR, he who alleges must prove; that the respondent merely asserted payments totalling Kshs 860,000/=; that the bank statement she tendered did not reflect the name of the recipient; and that the appellant never acknowledged receipt of the monies said to have been so paid. On the second issue, counsel characterised the sum claimed as special damages, which must be specifically pleaded and strictly proved, relying on Hahn v Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716 and Swalleh C. Kariuki & another v Viloet Owiso Okuyu [2021] eKLR; submitted that an invoice, or a bank statement not naming the payee, is not a receipt; and contended that the trial court awarded Kshs 390,000 without any computation or explanation, an “arbitrary judicial imposition” offending the principle in Jane Chelagat Bor v Andrew Otieno Oduu [1988-92] 2 KAR 288, as adopted in Nairobi Hospital & another v Mumo & 2 others (Civil Appeal 137 & 150 of 2019 (Consolidated)) [2024] KEHC 7657 (KLR), that an appellate court interferes with an award of damages where the court below acted on a wrong principle of law, misapprehended the facts, or made a wholly erroneous estimate of the loss. 18.On the third issue, counsel rehearsed the appellant’s accounting: that the respondent paid only Kshs 650,000/=; that upon the accident the appellant’s side recovered Kshs 1,425,000/= from the insurer, of which Kshs 25,000/= was claimed back and refunded on 25 October 2023; that auctioneer’s fees of Kshs 55,000/= were incurred upon instructions to repossess the vehicle, given before the respondent notified the appellant of the accident; and that upon a full reconciliation the respondent owed the appellant Kshs 95,000/=, so that the appellant was out of pocket and not enriched. On the fourth issue, counsel submitted that the respondent had possession and beneficial use of the vehicle for a material period without completing payment, a benefit never reversed; that under the principle against unjust enrichment she could not seek a refund of money for a benefit already enjoyed; that a hirer who takes possession and benefits from the use of the vehicle without paying in full cannot later demand a refund, on the authority of Abson Motors Ltd v Dominic B. Onyango Konditi [2018] eKLR and John Mwangi Muchira v Hyper Cars Ltd & 2 others [2013] eKLR; and that in departing from the parties’ bargain the trial court rewrote their contract, contrary to National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd [2001] KLR 112, Fina Bank Ltd v Spares & Industries Ltd (Civil Appeal No. 51 of 2000) (unreported) and Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd [2017] eKLR. The appellant accordingly prayed that the appeal be allowed in its entirety; that the judgment of the trial court be set aside and substituted with an order awarding the appellant Kshs 95,000/= as the outstanding balance of the purchase price; and that it be awarded the costs of the appeal and of the court below. The respondent’s submissions 19.For the respondent, Oreko Neriko & Associates Advocates filed written submissions dated 25 August 2025. Counsel submitted, first, that the trial did not proceed by way of formal proof at all: the default judgment initially entered had been set aside on the appellant’s own application; the appellant had filed a defence; the hearing date was taken in the presence of counsel for both parties, yet the appellant simply failed to attend, a course counsel attributed to a design to avoid cross-examination, and thereafter filed submissions in support of its defence. Secondly, counsel submitted that the respondent proved payments totalling Kshs 860,000/= by receipts issued by the appellant and by bank and M-PESA statements; that the appellant has in any event unequivocally admitted, in its submissions before the trial court, receiving Kshs 650,000/= from the respondent and Kshs 1,425,000/= from the insurance company; and that it is estopped from resiling from those admissions. On counsel’s arithmetic, the appellant holds, from the respondent and the insurer together, more than the entire purchase price of the vehicle, while the respondent has neither her money nor the vehicle she was paying for; and this, counsel submitted, is unjust enrichment of the kind condemned in Stephen Karanja Kibuku v Safaricom Ltd [2018] KEHC 1367 (KLR), adopting Madhupaper International Ltd & another v Kenya Commercial Bank Ltd & 2 others (2003) eKLR. 20.Thirdly, counsel submitted that the respondent is not indebted to the appellant: the agreement was to run for twenty-four months, of which only some seven had elapsed when the vehicle was written off, and the appellant cannot claim in respect of the seventeen months that had not fallen due; the vehicle was never repossessed on account of non-payment; and the burden of proving the alleged debt lay on the appellant under sections 107, 108 and 109 of the Evidence Act, as restated in Bata Brands SA & another v Umoja Rubber Products Ltd (Commercial Case 501 of 2017) [2025] KEHC 5186 (KLR), a burden the appellant made no attempt to discharge by evidence. The respondent prayed that the appeal be dismissed with costs and that the cross-appeal be allowed, with judgment for Kshs 700,000/= substituted in her favour. 21.I observe, before leaving the submissions, that some of the figures and dates in them are at variance with the record: the respondent’s submissions give the date of the agreement as 24 November 2022 and the insurance settlement as Kshs 1,450,000=, while the appellant’s submissions at one point put the sum due under the agreement at Kshs 1,950,000/= and the instalment period at sixteen months. The hire purchase agreement, the discharge voucher and the SWIFT confirmation speak for themselves: the agreement is dated 14 October 2022; the price was Kshs 1,900,000/=, the balance payable in twenty-four instalments; and the settlement was Kshs 1,425,000/=. It is on the record, and not on counsel’s recollection of it, that the appeal and the cross-appeal fall to be decided. The jurisdiction of this court and the standard on appeal 22.This being an appeal from the Small Claims Court, the starting point is section 38(1) of the Small Claims Court Act, No. 2 of 2016, which provides that:A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. 23.The jurisdiction of this court on such an appeal is, therefore, a limited one. Unlike the ordinary first appeal, the court does not re-evaluate the evidence with a view to reaching its own conclusions of fact; it interferes only where the decision of the trial court is affected by an error of law. On what amounts to a matter of law, the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, construing a similarly worded limitation, explained that the phrase embraces three elements: the interpretation or construction of the Constitution, a statute or a legal doctrine; the application of the law to a set of facts established by the trial court; and the conclusions of the trial court, where it is contended that they rest on no evidence, or are unsupported by the evidence on record, or are so perverse that no reasonable tribunal could have arrived at them. 24.Two consequences follow for the present appeals. First, grounds which merely quarrel with the weight that the trial court attached to the evidence, or which invite this court to substitute its own view of the facts, are not open to the parties. Secondly, and conversely, a finding of fact made in disregard of an admission on the record, or contrary to unchallenged documentary evidence, or resting on no evidence at all, raises a matter of law which this court is entitled, indeed bound, to correct. Issues for determination 25.From the grounds of appeal and of cross-appeal, and the parties’ submissions on them, three issues arise: first, whether the learned magistrate erred in law in entering judgment for the respondent at all, which is the burden of the appeal; secondly, whether the learned magistrate erred in law in limiting the proved payments to Kshs 550,000/= and the award to Kshs 390,000/=, which is the burden of the cross-appeal; and thirdly, what orders should issue, including as to costs. Whether the trial court erred in entering judgment for the respondent 26.The greater part of the appellant’s grounds which are that the respondent was the party truly indebted, that she enjoyed the vehicle without paying for it in full, that her evidence of payment ought not to have been believed, and that the judgment is unfair and biased, are, on their face, complaints of fact. They are cognisable in this court only through the narrow evidentiary window I have described: that is, only if the conclusions of the trial court lacked any foundation in the evidence. Examined through that window, they do not begin to succeed. 27.I take first the complaint that the burden of proof was lessened because the matter proceeded by way of formal proof. The record shows the very opposite. The learned magistrate put the respondent to strict proof of every payment she alleged; accepted only those sums, Kshs 550,000/=, which were vouched by receipts issued in the appellant’s name; and declined to act on documentary material, amounting to a further Kshs 310,000/= of the sums claimed, which the court considered insufficiently linked to the appellant. Whatever else may be said of that approach, and the cross-appeal says a great deal, it cannot be said that the threshold of proof was lowered. The ground fails. 28.The parties joined issue in their submissions on whether the hearing of 14 May 2024 was a formal proof at all, the respondent pointing out, correctly, that the default judgment had been set aside, that a defence was on the record, and that the hearing proceeded with the appellant simply absent. The point is well taken, but nothing turns on the label, for the appellant’s own authority answers it. In Karugi & another v Kabiya & 3 others (supra) the Court of Appeal held that the burden of proof is in no way lessened because a case is heard by way of formal proof: the burden on the plaintiff to prove the case remains the same, though where the matter is not defended it may in practice become easier to discharge. Whether the hearing is styled a formal proof or, more accurately, a hearing which the defendant chose not to attend, the respondent bore, and was held to, the ordinary civil standard which sections 107 and 108 of the Evidence Act and Jennifer Nyambura Kamau v Humphrey Mbaka Nandi (supra) prescribe. 29.The related complaints, that the respondent proved no payments, that the insurer paid the appellant nothing, and that the trial court disregarded “all the evidence presented” by the appellant, fare no better, and for a reason that lies at the appellant’s own door. The appellant filed a response, a witness statement and documents, and then absented itself from a hearing of which it had notice; the hearing date was taken in the presence of both parties and a hearing notice was, in addition, served. It failed or chose nott o testify. A party which deliberately declines to participate in the trial cannot afterwards be heard to complain that its evidence was disregarded. 30.But the matter does not rest there, for even if the appellant’s filed documents were read in its favour, they destroy rather than advance its case. Its own financial statement credits the respondent with the deposit of Kshs 450,000/=, an instalment of Kshs 200,000/= on 18 May 2023 and the insurance settlement of Kshs 1,425,000/= on 20 September 2023; and it closes with the credits exceeding the debits by Kshs 95,000/=. That is to say, on the appellant’s own accounting, and after charging the respondent the entire twenty-four-month hire purchase price and even its auctioneer’s fee, the appellant still holds Kshs 95,000/= of the respondent’s money. The counterclaim for Kshs 95,000/=, renewed in the appellant’s submissions as a prayer that this court award it that sum, simply reads the appellant’s own ledger upside down. 31.The assertion, solemnly made in the appellant’s witness statement, that the insurer made no payment is contradicted four times over on the record: by the SWIFT confirmation of the real time gross settlement (RTGS) of Kshs 1,425,000 on 20 September 2023 in favour of Motorology Limited, the appellant’s principal; by the appellant’s own ledger, which credits that very sum on that very date to the account of this very transaction; by the appellant’s debit of Kshs 25,000/= described as a return to the insurance company on 25 October 2023, one cannot refund part of a payment one never received; and by the appellant’s own written submissions before the trial court, which admitted receipt of the Kshs 1,425,000/= on 20 September 2023 and the refund of Kshs 25,000/=. Indeed, the appellant’s submissions before this court no longer dispute the receipt; they assert it, and build the reconciliation upon it. Nor can the appellant find refuge in the circumstance that the remittance was made to Motorology Limited rather than to itself. It sold the vehicle and received the respondent’s deposit and instalments as Motorology’s authorised agent under the authority letter it exhibited; it cannot approbate the agency for the purpose of the sale and the payments and reprobate it for the purpose of the insurance settlement, least of all when its own ledger treats the settlement as received. 32.As for the complaint that the trial court failed to deduct the sums owing to the appellant, no such sums were established. No default in the instalments was proved; the schedule of payments was never worked through in evidence because the appellant called none. The auctioneer’s fee of Kshs 55,000/= relates to a repossession that never took place: the vehicle was never repossessed, and on the appellant’s own statement the auctioneers merely “found out that it had had an accident”. There was accordingly no basis in law or in fact upon which the trial court could have made the deductions the appellant says were omitted, beyond the Kshs 160,000/= which the respondent had herself conceded as interest for her period of use. 33.Nor is the appeal advanced by recasting the claim as one for special damages insufficiently proved. Taking the authorities the appellant cites, Hahn v Singh (supra) and Swalleh C. Kariuki & another v Viloet Owiso Okuyu (supra), at their full breadth, they require that special damages be specifically pleaded and strictly proved. Both requirements were met to the extent of the award: the respondent pleaded the precise sums she said she had paid and the precise refund she sought, and the trial court awarded only what it found vouched by receipts issued in the appellant’s own name, less the interest the respondent had conceded. Receipts issued by the very party said to have been paid are the paradigm of the strict proof the authorities demand. The appellant’s further point, that a bank statement not naming the payee is no receipt, concerns the Kshs 220,000/= which the trial court in fact declined to award, and which accordingly arises on the cross-appeal, not on the appeal. 34.That leaves the second ground, that the award of Kshs 390,000/= was made “without an explanation of how this huge sum was arrived at”. As a criticism of form, the ground is not without substance: a court’s arithmetic ought to appear on the face of its judgment. But the computation, though unexpressed, is readily discernible from the judgment itself. The respondent’s own approach, which the trial court recorded, was to deduct Kshs 160,000/= as interest for her months of use from the Kshs 860,000/= she said she had paid, to arrive at her claim of Kshs 700,000. The trial court, having found only Kshs 550,000/= of the payments proved, applied the same conceded deduction: Kshs 550,000/= less Kshs 160,000/= is Kshs 390,000/=. An unexpressed but discernible computation is not a ground for setting a judgment aside. The appellant’s own authority, Jane Chelagat Bor v Andrew Otieno Oduu (supra), permits an appellate court to interfere with an award only where the court below acted on a wrong principle, misapprehended the facts, or made a wholly erroneous estimate; and to the extent that the estimate here was erroneous, the error, as the cross-appeal demonstrates, operated against the respondent, not the appellant. The appellant cannot complain of an error from which it benefited. 35.Finally, there is nothing wrong in law with the principle upon which liability was founded; and there is, indeed, a more fundamental way of viewing what happened on 22 July 2023 which supplies the surest legal foundation for the trial court’s conclusion. The write-off of the vehicle was the destruction of the very subject matter of the hire purchase agreement. From Taylor v Caldwell (1863) 3 B & S 826, in which the burning down of a music hall discharged the parties from a contract for its use, the common law, which applies to contracts in Kenya by dint of section 2(1) of the Law of Contract Act, Cap 23 – has treated the destruction of the subject matter of a contract, without the fault of either party, as a frustrating event; and the modern test, stated in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696, is whether a supervening event has rendered performance radically different from that which the parties undertook. A hire purchase agreement whose subject vehicle has been written off answers that description exactly: there remained nothing to hire, nothing to purchase, and no ownership capable of passing to the respondent upon completion of the instalments. Neither party suggested, still less proved, that the accident was attributable to the fault of the other. The agreement was accordingly frustrated, and the parties were discharged from further performance from that moment, automatically and by operation of law: Hirji Mulji v Cheong Yue Steamship Co Ltd [1926] AC 497. Neither party employed the term “frustration” below or before me; but the doctrine is no more than the legal characterisation of facts which are common ground, the destruction of the vehicle, and the application of the law to the facts established by the trial court is the second of the elements of a “matter of law” identified in Munya (supra). It is squarely within this court’s remit. 36.The consequences follow. Frustration discharges the future obligations of both parties. That is a complete answer to the appellant’s claim to the unpaid instalments, including, as the respondent’s submissions rightly point out, the seventeen months’ worth that had not fallen due, and to its counterclaim of Kshs 95,000/=, which is built upon debiting the respondent with the entire twenty-four-month price as though the agreement had run its full course. As to the money already paid, the law does not leave the loss to lie where it fell. In Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, the House of Lords held that money paid under a contract subsequently frustrated is recoverable where the consideration for the payment has wholly failed; and it rested that recovery on the very principle the trial court invoked, that a party shall not be unjustly enriched by retaining money paid for a consideration it can no longer furnish. The guiding aim, so far as money can achieve it, is restitutio in integrum: upon the frustration of the contract, each party is to be restored, as nearly as is practically possible, to the position it occupied before the contract was made. 37.Measured against that aim, the result below was sound in principle. The owner’s side of the transaction was restored, restored in full, by the insurer’s indemnity of Kshs 1,425,000/=, the entire assessed value of the vehicle. The respondent could be restored only by the return of the payments she had made towards a purchase that could no longer be completed. Restoration could not, however, be perfect, for she had enjoyed seven months’ use of the vehicle, a benefit incapable of being returned in kind; and in so far as that use meant that the consideration for her payments had not wholly failed, the respondent met the point herself, by conceding Kshs 160,000/= as the value of the use she had had, and seeking restitution only of what she had paid beyond the benefit she had received. The refund of her payments, net of that concession, thus left each party as nearly as practicable where it began: the appellant’s side with the full value of its vehicle and the price of the hire actually enjoyed; the respondent with her money, less the value of what she had received. To have permitted the appellant to keep both the indemnity and the payments would have left one party enriched and the other doubly stripped, the antithesis of restitution, and precisely the unjust enrichment which the trial court, guided by Patrick Kimutai Kiprono v Erick Kipkurgat Kiprono (supra), and the respondent’s submissions, invoking Stephen Karanja Kibuku v Safaricom Ltd (supra) and Madhupaper International Ltd (supra), rightly condemned. 38.The authorities marshalled under the appellant’s fourth issue do not alter that conclusion. National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd (supra), Fina Bank Ltd v Spares & Industries Ltd (supra) and Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd (supra) affirm that it is not the business of courts to rewrite contracts; but no term of the hire purchase agreement was rewritten. A contract discharged by frustration is determined by operation of law, not by the court; and the agreement, which fixed the price, the deposit and the instalments, was not shown to make any provision for the destination of the parties’ respective entitlements upon the total loss of the vehicle and the indemnification of the owner’s interest by the insurer. The restitutionary consequences of frustration therefore operated not against the contract but in the space the contract left vacant. Abson Motors Ltd v Dominic B. Onyango Konditi (supra) and John Mwangi Muchira v Hyper Cars Ltd & 2 others (supra), which concerned hirers in default seeking to resist the consequences of their default while the subject matter of the bargain subsisted and no frustrating event had intervened, are for that reason of no assistance to the appellant. And in so far as the point is that the respondent enjoyed the use of the vehicle without paying for it in full, the judgment under appeal accounted for that benefit in the only quantified manner the record offered: the respondent herself surrendered Kshs 160,000 as interest for her seven months of use, and the award was net of that concession. The appellant, having called no evidence, proposed no other measure of the benefit. 39.The appeal is, accordingly, without merit. Whether the trial court erred in limiting the proved payments to Kshs 550,000 40.The cross-appeal stands on firmer ground. Its foundation is the elementary principle, codified in section 61 of the Evidence Act, Cap 80, that facts admitted need not be proved:"No fact need be proved in any civil proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings…" 41.Before the trial court, the appellant’s own written submissions stated in terms that “the Claimant paid to the Respondent Kshs. 650,000/=”; and its financial statement, filed under its own list of documents, credits the respondent with the deposit of Kshs 450,000/= and with an instalment of Kshs 200,000/= paid on 18 May 2023. The Kshs 200,000/= which the learned magistrate rejected because the transfer confirmation did not bear the recipient’s name was therefore acknowledged in writing by the intended recipient itself, in documents forming part of the record before the court, to the very shilling and on the very date. The respondent frames the point in her submissions as an estoppel against the appellant’s resiling from its unequivocal statements; section 61 makes shorter work of it: what is admitted need not be proved. To put a claimant to proof of a payment which the payee has admitted receiving, and then to find the payment unproved, is to arrive at a conclusion contrary to the record. That is an error of law within the evidentiary element identified in Munya (supra), and it is one this court must correct. 42.The error was compounded by the character of the forum. Section 32 of the Small Claims Court Act relieves that court of the strictures of the rules of evidence and permits it to inform itself in the manner it considers just; the whole scheme of the Act is one of informal, expeditious and inexpensive justice. To exclude proof of payment on the formal ground that an electronic funds transfer confirmation omitted the payee’s name, a feature of the message format, not of the transaction, was precisely the species of technicality the statute enjoins the court to look past; the more so where the record itself supplied the missing link. Section 19 of the Act, on which the cross-appellant relies, would in any event have permitted the court to call for the bank’s records had any genuine doubt remained; none could remain in the face of the appellant’s own acknowledgment. 43.The further payment of Kshs 20,000/= on 4 July 2023 stands on the same footing. The respondent’s bank statement, which was produced and never challenged, records a transfer of that sum on that date from her account at the Co-operative Bank to account number 01136392340300. That is the same account which received the Kshs 200,000/= of 18 May 2023 that the appellant credits in its ledger. Once the destination account is shown, out of the appellant’s own records, to be an account on which it received the respondent’s instalments, the only reasonable conclusion open on the evidence was that the Kshs 20,000/= was likewise received. The contrary conclusion rested on no evidence at all. 44.The proved payments must therefore be restated. They comprise the deposit of Kshs 450,000/=; the receipted payment of Kshs 100,000/= of 9 May 2023, which the trial court accepted and whose acceptance has not been challenged on any tenable ground of law, the appellant’s assertion in its submissions that the receipt was a forgery was never the subject of any evidence; the Kshs 200,000/= of 18 May 2023; and the Kshs 20,000/= of 4 July 2023. The total is Kshs 770,000/=. 45.It follows, however, that the cross-appeal cannot succeed to its full extent. Counsel’s submission is that the receipts and the bank and M-PESA statements prove the entire Kshs 860,000/= pleaded; but the balance of Kshs 90,000/= beyond the Kshs 770,000/= I have found is not vouched by any receipt, message, bank entry or ledger entry to which I have been pointed on the record, and a court of law acts on evidence, not assertion. To that limited extent, the trial court’s conclusion that the claim was proved only in part survives, though at Kshs 770,000/= and not Kshs 550,000/=. 46.As to the measure of the award, the trial court’s approach less a refund of the hirer’s payments where the owner has been indemnified in full by the insurer, less the interest which the respondent herself conceded for her months of use of the vehicle, was not challenged in principle by the appellant, whose complaint was that any award was made at all, and it is embraced by the cross-appellant. Nothing has been shown to be wrong with it in law; it is, indeed, the measure which restitutio in integrum upon the frustration of the agreement itself commends, as I have explained, and, I adopt it. Applying it to the payments as correctly found, the respondent was entitled to Kshs 770,000/=less the conceded Kshs 160,000/=, that is, Kshs 610,000/=. The award of Kshs 390,000/= cannot stand and must be substituted accordingly. The substituted figure remains within the sum of Kshs 700,000/= claimed. Disposition 47.In the result, the following orders commend themselves to me and are hereby issued:a)The appellant’s appeal dated 19 June 2024 is dismissed.b)The respondent’s cross-appeal dated 22 July 2024 is allowed to the extent that the award of Kshs 390,000/= made by the trial court is set aside and there is substituted therefor judgment for the respondent against the appellant in the sum of Kshs 610,000/=.c)The substituted sum of Kshs 610,000/= shall carry interest at court rates from 24 May 2024, the date of the judgment of the trial court, until payment in full. The order of the trial court on the costs of the claim is undisturbed.d)The respondent shall have the costs of the appeal and of the cross-appeal.Orders accordingly. SIGNED, DATED AND DELIVERED ON 31 JULY 2026NGAAH JAIRUSJUDGE