https://new.kenyalaw.org/akn/ke/judgment/scc/2026/113

Papa v Tata Africa Holdings Limited (Commercial Case E190 of 2026) [2026] SCC 113 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] SCC 113 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Commercial Case E190 of 2026 TN Mwangeka, RM June 9, 2026 Between Gnasio Omukaga Papa Claimant and Tata Africa Holdings Limited Respondent Judgment 1.Vide statement of claim dated 25th February 2026, the clamant filed suit as against the Respondent seeking for inter alia Kshs. 550,000/= being the excess of the amount paid for the truck together with the body being a water bowser which however on completion did not include the said body which the claimant financed himself. 2.On their part, the Respondent denies the claim for refund of Kshs. 550,000/- on account of the Claimant having no evidence or confirmation showing that the parties herein had allegedly agreed that the purchase price would be Kshs. 4. 250,000/= instead of the Kshs. 4,799,999/= inclusive of VAT. 3.From the evidence produced, it is not in dispute that the parties herein entered into an agreement for the purchase of a Tata truck KDU 753M exclusive of a body, for the sum of Kshs. 4,799,999/= inclusive of VAT. What is contended is whether the Claimant overpaid for the truck that was sold as a cab and chassis, which he later modified to suit his specifications. 4.Before delving into the disputed facts, I shall address the issue of whether the Claimant possesses locus standi to pursue this claim. The Respondent has submitted that the Claimant in the absence of a Board Resolution by Nile Water Enterprises Limited nominating him to sue on behalf of the company, does not have any locus to bring this suit in his personnel name. In Diesel Inject Services v Shajand Holdings Ltd (Civil 5.Appeal 53 of 2020) [2024] KEHC 4902 (KLR) while finding that the failure to file an authority to act was not fatal, the court looked at when the issue of locus had been raised and held that on perusal of the pleadings, the issue of failure to file resolution on authority to file suit was not raised in the statement of defence but in submissions; if this issue had been raised in defence or if the defendant had pled preliminary objection, the plaintiff would have addressed the court on it. 6.In the instant case, similar to the Disel Inject case, the argument was neither pleaded in the response to claim nor raised as a preliminary point of objection but has been raised in the submissions of the Respondent. I therefore find that the failure to file an authority to act does not invalidate the suit herein. 7.Turning to the bone of contention, whether the Claimant is entitled to a refund; the court has scrutinized the invoice No 250110212, issued on 25/07/2025 to the Claimant, which has been relied on by both parties and found that the same does not contain a quotation of Kshs. 550,000/- for the body of the truck. What is present is the total amount payable for the vehicle at Kshs. 4,799,999/-. 8.The Claimant during cross examination claimed that the arrangement to vary the purchase price of the truck to Kshs. 4,250,000/- was reached orally and that he had the receipt to prove that he spent Kshs. 550,000/- on refabrication of the truck though not filed. Section 107 to 109 of the Evidence Act are clear, he who alleges must prove. Absent any corroborating evidence to substantiate the validity of the alleged oral agreement, this court cannot find in favor of the Claimant. 9.The facts are thus resolved to be that the parties herein entered into an agreement for the purchase of the truck for Kshs. 4,799,999/- of which 90% of the purchase price was financed by the Claimant’s bank and 10% of the purchase price by the Claimant personally. Further, upon payment of the purchase price, the Claimant refabricated the vehicle and on 15th August 2025, the Claimant’s bank authorized delivery of the truck to the Claimant upon undertaking to pay Kshs. 540,000/- being full and final settlement of the amount invoiced. It is therefore not correct as stated by the Claimant that he paid for the repairs. 10.In the end, this court finds that the Claimant has not proved its case against the Respondent on a balance of probabilities and consequently dismisses the same 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;Mr. Sewe….for Claimant;N/A…… for Respondent C/A EstherSigned By/for:HON. THERESA N. MWANGEKA