https://new.kenyalaw.org/akn/ke/judgment/scc/2026/209

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT OF KENYA AT UASIN GISHU COUNTY COURT NAME: ELDORET SMALL CLAIMS COURT** **CASE NUMBER: SCCCOMM/E731/2026** **SHADRACK MAMBA OYUCHI VS RAJAB KIPKOSGEI MAGUT** **JUDGMENT** 1. The Claimant instituted this claim seeking judgment against the Respondent for Kshs.400,000/-, compensation, costs of the claim and loss of expected profits in the sum of Kshs.200,000/-. The Claimant’s case is that on or about 4th September 2025, he entered into a land lease agreement with the Respondent for one acre of land at a consideration of Kshs.100,000/-. The Claimant was to plant sugarcane on the land and harvest the crop three times. She paid Kshs.70,000/- and subsequently cleared the balance of Kshs.30,000/- on 23rd October 2025. 2. The parties subsequently entered into another agreement dated 31st October 2025 at a consideration of Kshs.100,000/- for the lease of land for purposes of planting sugarcane. It was agreed that land preparation and planting would take place in April 2026 and that in the event of a breach, the defaulting party would refund double the amount paid. 3. The Claimant states that when he went to prepare the land for planting, she found another person on the parcel claiming to have leased the same land from the Respondent. He thereafter approached the Respondent, who promised to refund the monies paid, but failed to do so. 4. In his Response dated 16th July 2026, the Respondent denied breaching the agreement and averred that it was the Claimant who breached the agreement by requesting a refund of all the monies paid under the two agreements. The Respondent, however, admitted that he refunded Kshs.50,000/- to the Claimant and that a balance of Kshs.150,000/- remained outstanding. He did not dispute the Claimant’s entitlement to recovery of the said balance and reaffirmed his commitment to settling the same. 5. The parties took directions on 20th July 2026 to dispose of the matter under Section 30 of the Small Claims Court Act. Consequently, the Court is bound to determine the matter on the basis of the pleadings and documents filed by the parties. The issues for determination are: a. whether the Claimant has proved her claim. b. Who should bear the costs of the claim? 1. The burden of proof rests upon the Claimant to establish his claim on a balance of probabilities. The Claimant relies on the lease agreements dated 4th September 2025 and 31st October 2025 and M-pesa statements. Both agreements were executed by the parties and acknowledge payment of Kshs.100,000/- in respect of each transaction. The fact of payment is not disputed. What is principally disputed is the party responsible for the alleged breach and the extent of the Claimant’s entitlement arising therefrom. 2. The Claimant’s position is that when he went to prepare the land for planting, she found another person on the land who claimed to have leased the same parcel from the Respondent. According to the Claimant, he thereafter approached the Respondent, who undertook to refund the monies paid. 3. The Respondent, on the other hand, maintains that it was the Claimant who breached their agreement and sought for a refund of the monies paid. The Respondent relies on the M-Pesa statement demonstrating that Kshs.50,000/- was refunded to the Claimant. He further admits that Kshs.150,000/- remains outstanding. 4. I have considered the agreements produced by the Claimant. The agreement dated 4th September 2025 contains a clause providing that in the event of breach, the defaulting party would pay double the amount paid. In the agreement dated 31st October 2025, it is the leaser who is to refund double the amount incurred in the event of a default. Parties therefore expressly provided for the consequences of breach. However, the evidence before the Court is insufficient to conclusively establish, on a balance of probabilities, which party breached the agreements. The Claimant did not place before the Court independent evidence, such as testimony from a person who witnessed the alleged occupation of the land by the third party, correspondence between the parties concerning the alleged breach, or any other communication demonstrating that the Respondent had leased the same parcel to another person. 5. Equally, the Respondent did not produce sufficient evidence to substantiate his assertion that it was the Claimant who breached the agreements by requesting a refund. Although he alleges that the Claimant sought a refund, the fact remains that the Respondent admits having refunded Kshs.50,000/- and further admits that Kshs.150,000/- remains due and payable to the Claimant. The Court therefore cannot, on the evidence before it, make a definitive finding as to which party was responsible for the breach so as to invoke the contractual provision requiring payment of double the amount paid. 6. I have also considered the fact that the Respondent did not file a counterclaim seeking any relief arising from his allegation that the Claimant was the party in breach. This is in respect to the agreement dated 4th September, 2025. More importantly, the Respondent expressly admits that Kshs.150,000/- remains outstanding. The M-Pesa statement corroborates the payment of Kshs.50,000/- to the Claimant. In the circumstances, the admitted outstanding amount is recoverable by the Claimant. 7. The Claimant, however, has not proved his entitlement to the sum of Kshs.400,000/-. In particular, the contractual double-refund clause can only be invoked upon proof of breach by the party against whom the contractual consequence is sought. That burden has not been discharged in the present case. 8. As regards the claim for loss of expected profits in the sum of Kshs.200,000/-, no documentary or other cogent evidence was tendered to demonstrate the alleged profits, the basis upon which the amount was computed, or that such profits were actually lost as a consequence of the Respondent’s breach. The claim is therefore not proved and must fail.Consequently, I find that the Claimant has proved his claim only to the extent of the admitted outstanding sum of Kshs.150,000/-. 9. On the issue of costs, the Respondent admits owing the Claimant Kshs.150,000/-. The Claimant was therefore compelled to institute these proceedings to recover the amount due. I accordingly find that the Claimant is entitled to the costs of the claim. 10. In the result, judgment is hereby entered in favour of the Claimant against the Respondent as follows: a. Kshs.150,000/- being the admitted outstanding amount; b. The claim for Kshs.400,000/- is otherwise dismissed; c. The claim for loss of expected profits in the sum of Kshs.200,000/- is dismissed for want of proof. d. The claimant shall have costs of ksh 32,000/- and interest of the suit Stay of 30 days is granted. Judgement signed and delivered at Eldoret this 14st day August of 2026 ME Aligula RM In the presence of: C/A Mr. Lepatoiye Claimant: Respondent: