https://new.kenyalaw.org/akn/ke/judgment/scc/2026/84

Mwangi v Drenal Enterprises Ltd (Commercial Case E1294 of 2025) [2026] SCC 84 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] SCC 84 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Commercial Case E1294 of 2025 TN Mwangeka, RM June 9, 2026 Between Tonny Karanja Mwangi Claimant and Drenal Enterprises Limited Respondent Judgment 1.The Claimant seeks judgement in the sum of Kshs 800,000/- being the total of withheld container deposits by the Respondent. The Claimant avers that he has engaged the Respondent to clear his shipments as they arrive at the Mombasa Port for a period of over 10 years. At the onset of the business relationship, the Respondent would issue invoices for the amounts payable and also issued payment receipts after the funds were paid. However, over time the relationship became one of utmost good faith where the Director of the Respondent would ask for payment over a telephone call and receive the funds informally either through Mpesa or Bank transfers. It was not until earlier this year that the Claimant discovered that the Respondent has been fraudulently withholding some container deposits in a hope that the Claimant would not discover the fraud due to the large numbers and frequent shipments the Respondent cleared for him. 2.The Respondent entered appearance on 4th December 2025 but did not file a response to the claim. 3.The court has perused the statement of claim together with the documents in support as filed by the Claimant together with the oral testimony of the claimant and the written submissions in rendering its judgement. 4.It is trite law that the burden of proof in civil matters lies on the party who alleges, as provided under section 107(1) of the Evidence Act. This burden is shouldered even when the Respondent does not respond to the claim as herein. The aforesaid provision states that: 1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 2.When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 5.In the instant case, the Claimant has filled various unrelated invoices from the Respondent that evidence the Respondent would receive Kshs. 100,000/- as container deposits from the Claimant. The claim however is in respect of particular containers as per the following Bills of Lading for which there are no invoices;Bill of Lading no. MEDUPE041157Bill of Lading no. MEDUPE057021Bill of Lading no. MEDUPE012570Bill of Lading no. MEDUZR062429Bill of Lading no. MEDUPE158514 6.It is the Claimant’s evidence that Respondent would issue invoices for the amounts payable and also issued payment receipts after the funds were paid. However, over time the relationship became one of utmost good faith where the Director of the Respondent would ask for payment over a telephone call and receive the funds informally either through Mpesa or Bank transfers. 7.In Mandeep Singh Construction (K) Limited v Kauni (Civil Case E003 of 2021) [2022] KEHC 17247 the court while relying on RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH (2010) UKSC 14 on the issue of conduct of parties held as follows;“…The general principles are not in doubt. Whether there was a binding contract between the parties and if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance have not been finalized, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.” 8.In the present case, the Claimant has not produced any Mpesa or Bank Transfers to support his claim for refund of the Kshs. 800,000/- in respect of the said containers as under the aforementioned Bills of Lading. Given that this is how the parties would ordinarily conduct their business, the Claimant had the obligation to furnish this court with evidence of the said conduct in order for this court to affirm his entitlement. 9.Consequently, this court finds that the Claimant has not proved its case on a balance of probabilities. The claim is thus dismissed with no orders as to costs. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……9TH….DAY OF……JUNE………2026HON. THERESA N. MWANGEKARESIDENT MAGISTRATE/ADJUDICATORIn the presence of;…Ms. Nduta…for Claimant;……N/A… for RespondentC/A Esther