https://new.kenyalaw.org/akn/ke/judgment/scc/2026/25

Oduor v Ochiel (Commercial Case E4626 of 2024) [2026] SCC 25 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] SCC 25 (KLR) Republic of Kenya In the Milimani Small Claims Court Commercial Case E4626 of 2024 GW Kiamah, RM May 22, 2026 Between Vilet Akinyi Oduor Claimant and Dusila Ochiel Respondent Judgment 1.The claimant instituted this suit via a statement of claim dated 6/5/2024 seeking judgment against the claimant for Kshs. 84,000/= on the basis that she loaned the respondent Kshs. 70,000/= to boost her Mpesa business and the same was payable with a monthly interest of 20% but the respondent failed to repay the same. 2.The respondent filed a response dated 20/10/2025 after successfully setting aside default judgment that had been entered against her. The parties had also attempted to settle the dispute out of court through reconciliation of accounts but the same was futile. In her response, she pleaded that she had since paid Kshs. 101,200/= since taking out the loan and she denied owing any money to the claimant. 3.The parties filed several affidavits in an attempt to reconcile the accounts. The respondent filed an affidavit dated 10/7/2025 attaching an Mpesa statement to proof payments made to the claimant as well as whatsapp correspondences. The claimant filed an affidavit dated 18/8/2025 claiming that the statement relied on by the respondent reflected direct deposits made personally by the claimant’s mobile number and that she had made those deposits for her personal use, and that the respondent had not proven that she owned the Company whose statement she had produced. 4.The claim proceeded under Section 30 of The Small Claims Act and the parties filed submissions which I have seen and considered alongside the pleadings and evidence before court. The main issue for determination is whether the claimant has proven its case as against the respondent. 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. 5.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. 6.It is not in dispute that the claimant loaned the respondent Kshs. 70,000/= payable with 20% interest to boost her Mpesa business. The issue is whether the loan was fully repaid. 7.The claimant maintained that the loan was due and owing whereas the respondent averred that she had fully repaid the loan. The respondent relied on Mpesa statements of Hunters Comm Ltd City Klasique Uniform Distributors & Fashion Designers Kiminini. The claimant denounced those payments and pleaded that she would personally make those deposits to herself for personal use. However, the record reflects a different story. 8.From the parties whatsapp correspondence, the claimant is seeing inquiring on whether the respondent received her ID number to which the respondent says that she was unable to make a direct deposit to the claimant due to long distance. From that alone, it is deduced that the respondent would directly make deposits to the claimant’s number. In any case, as admitted by the claimant, the respondent was an Mpesa agent noting that the loan was meant to expand that business as pleaded by the claimant thus it was likely that the respondent was able to make direct deposits to her. 9.Further, from the parties’ conversation, the claimant communicated that the loan stood at Kshs. 84,000/= as of 1/6/2024. On 6/6/2024, the respondent communicated that she had paid Kshs. 44,000/= and would clear the balance by 12th. Going back to the statements, indeed, Kshs. 44,000/= was directly deposited to the claimant on 6/6/2024. The claimant did not dispute that payment. By this, I do find that the statement produced by the respondent is credible and trustworthy and the same is admitted as evidence. Noting that the claimant did not dispute the payment or even the mode of payment, proofing ownership of the company would not have negated the fact that she received direct deposits made by the respondent towards clearing the instant loan. 10.The total amount of money paid to the respondent as per that statement is Kshs. 87,200/=. Indeed, the claimant pleaded that she had paid that sum from when the claim had been instituted. The claimant also admitted to having received a further Kshs. 11,000/= vide her Mpesa. Noting that the claim is for Kshs. 84,000/=, I do find that the respondent has since cleared up the amount claimed. The court considers all payments made, whether before or after filing suit, as relevant to determination of the outstanding balance. 11.I do note that there was no counter-claim for any excessive payment thus the court will remain silent on the issue. I find it imperative to note that the claimant has no further claim for interest noting that the interest charged was already inordinately high and unconscionable and the same would not be enforced by a court of law. 12.The upshot is that the claimant has not proven her case on a balance of probabilities. Consequently, the claim is found to lack merit and the same is dismissed. 13.Noting that costs follow the event, the respondent is awarded costs assessed at Kshs. 10,000/=. 14.The claimant is granted 30 days stay of execution.It is so decreed. DATED AND DELIVERED AT NAIROBI VIA CTS THIS 22ND DAY OF MAY 2026HON. GLADYS W. KIAMAHRESIDENT MAGISTRATE/ADJUDICATOR