https://new.kenyalaw.org/akn/ke/judgment/scc/2026/56

Mutiso v Mutuku (Commercial Case E101855 of 2025) [2026] SCC 56 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] SCC 56 (KLR) Republic of Kenya In the Milimani Small Claims Court Commercial Case E101855 of 2025 GW Kiamah, RM July 3, 2026 Between Stephen Mbuvi Mutiso Claimant and Patrick Mutuku Respondent Judgment 1.The claimant instituted this suit via the undated statement of claim dated 25/9/2025 seeking judgment against the respondent for Kshs290,000.00/= on the basis that the parties entered into an oral agreement for the purchase of a Toyota NZE at Kshs. 680,000/= and the claimant paid the respondent Kshs. 380,000/=. That the respondent failed to deliver the vehicle or transfer ownership and instead became unresponsive. That the parties later executed a repayment agreement on 8/2/2025 at the police station upon the claimant’s report wherein the respondent acknowledged owing Kshs. 311,000/= and refunded a total of Kshs. 90,000/= leaving a balance of Kshs. 290,000/=. 2.The respondent filed a response dated 9/2/2026 and denied the claim. He pleaded that the parties’ dealings only related to the supply of Ex-UK laptops and accessories and that the police report made by the claimant concerned that transaction. He admitted that he was arrested and consequently signed a repayment agreement acknowledging Kshs. 311,000/=. He however pleaded that he executed the agreement under coercion and the same was unenforceable. 3.The respondent also denied receiving Kshs. 119,000/= in cash and alleged collusion between the claimant and police officers to force repayment. He maintained that he only owed the claimant Kshs. 85,000/= relating to a faulty computer and a friendly loan, which he fully repaid in instalments including the Kshs. 40,000/= paid on 12/3/2025. He thus denied any liability for the sum. 4.The matter proceeded under Section 30 of the Small Claims Act. The claimant then filed an application dated 10/5/2026 seeking to file a supplementary witness statement, supplementary documents, and introduction of more witnesses. When the matter came up on 20/5/2026, the respondent’s advocate intimated that they did not oppose the application. Consequently, the claimant was granted leave to file the additional documents within 7 days thereof. The respondent was also granted leave to file a further response if any within 7 days of service, and thereafter, parties were directed to file two-page submissions within 14 days. 5.I have considered the court record and note that the claimant did not file any such documents despite leave and neither did he file any submissions. 6.Regardless, I have seen and considered the pleadings, testimonies, evidence and submissions before court. The main issue for determination is whether the claimant has proved the sums claimed. 7.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. 8.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. 9.I have considered the court record. According to the documents produced by the claimant, the total payments made to the respondent via bank and MPESA amounts to Kshs. 351,000/=. Though the claimant alleged that he paid an additional Kshs. 119,000/= in cash, the respondent denied receipt of the alleged cash payment and no receipt, acknowledgement, witness evidence or other documentary proof was tendered to substantiate the same. The burden of proving that payment rested with the claimant and, in the absence of cogent evidence, the court is unable to find th the alleged cash payment of Kshs. 119,000/= was made. 10.I do note that it was not disputed that the respondent had repaid a total of Kshs. 90,000/=, as such, the outstanding amount from the proven payment stood at Kshs, 261,000/= and not Kshs. 290,000/= as claimed. 11.I do however note that the respondent denied the nature of the transaction. The claimant on the one hand maintained that the debt streamed from a failed car purchase, whereas the respondent averred that the transaction related to supply of laptops and related accessories. The record reflects that the respondent produced invoices issued to the claimant for the supply of laptops, laptop bags and wireless mouses. 12.Notably, the invoices dated 7/7/2023, 8/7/2023, 99/7/2023 and 21/7/2023 were each for Kshs. 70,000/=. The dates and amounts reflected in those invoices substantially correspond with the payments shown in the claimant's own records including Kshs. 70,000/= paid on 7/7/ 2023, Kshs. 70,000/= paid on 8/7/2023, Kshs. 70,000/= paid on 9/7/2023, and Kshs. 70,000/= paid on 21/7/2023. 13.Further, apart from the pleadings and the complaint reported with the DCI, the claimant did not place before court any communication evidencing negotiations for, or purchase of, a motor vehicle. The correspondence produced does not refer to a Toyota NZE, a purchase price of Kshs. 680,000/=, delivery arrangements, transfer documents or any other matters ordinarily associated with a motor vehicle transaction. 14.On the other hand, the invoices produced by the respondent provide a plausible explanation for the payments reflected in the claimant's documents and are consistent with the respondent's defence that the parties were engaged in transactions relating to computer equipment. 15.I do note that the claimant produced an agreement dated 8/2/2025 which was executed between the two parties at a police station wherein the respondent acknowledged a debt of Kshs. 311,000/=. The respondent however averred that the same was executed following his arrest and under police pressure. In the circumstances of this case, and noting the evident inconsistencies between the pleaded motor vehicle transaction and the documentary material before court, the agreement alone is insufficient to establish, on a balance of probabilities, that the proven payments were made towards the purchase of a motor vehicle as alleged by the claimant. 16.In the circumstances, I am not convinced that the claimant had proven that the sum claimed arose from a car sale agreement. 17.That said, the record reflected that a balance of Kshs. 261,000/= remained due. Though the respondent averred that he had fully repaid the only outstanding debt of Kshs. 85,000/=, the claimant’s statements clearly indicated that the respondent had received Kshs. 351,000/= from the claimant. While the respondent contended that the payments related to laptops and accessories, he did not produce any evidence to proof delivery of goods equivalent to the monies received, and neither did he offer any plausible reason to establish a legal basis for retaining the balance. As such, that amount was recoverable. 18.The upshot is that the claim as framed was partly successful. 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. 261,000.00/= plus interest at court rate from the date of judgment till payment in full.2.The claimant is also awarded costs of Kshs. 25,000/=. 19.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