https://new.kenyalaw.org/akn/ke/judgment/scc/2026/118

 REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA SMALL CLAIMS COURT CASE NUMBER: SCCCOMM/E020/2026 COLIN STUART VS ABSA BANK KENYA PLC JUDGMENT It is not in dispute that this matter revolves around Kshs. 642,123/- held by the Respondent as security following a bank guarantee entered into by the Claimant and Sea Turtle Enterprises Limited and Barclays Bank, now ABSA Bank. The guarantee dated 3rd January 2017 was borne out ***of Mombasa High Court Civil Appeal No. 95 of 2016*** [***Stuart & another v Miya Enterprises Limited & another***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2023/20457/eng%402023-07-11) [***[2023] KEHC 20457 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2023/20457/eng%402023-07-11)in which the Claimant herein being dissatisfied with the judgment of the Kwale Magistrate Court in Civil Case No. 35, 36 and 37 of 2013, appealed the said decisions and was ordered to take out a security for costs for the intended appeal. The parties to the appeal were; **Colin Stuart & Sea Turtle** # Enterprises Limited v Miya Enterprises Limited & another. On 11th January 2023, the High Court delivered its judgment in the subject appeal file finding that the judgment debt ought to be paid by the company, that is Sea Turtle Enterprises Limited and not the Claimant in his personal capacity. The Claimant has thus filed the instant suit seeking restitution of the Kshs. 642,123/- held by the Respondent as under the bank guarantee as the same were according to him his personal funds. The Respondents on their part hold that the bank guarantee can only be extinguished as per the terms therein which are that upon demand for payment the parties to the guarantee are to avail a copy of the agreement in writing settling the sum due and payable and or a copy of the final judgment of the court awarding the amount due and payable, neither of which has been done by the Claimant. During hearing, the Claimant confirmed in cross examination that the guarantee was taken out jointly and severally for the Claimant and Sea Turtle Limited and that there has been no demand for payment made to date. Additionally, that Sea Turtle Limited was required to pay the then Plaintiffs and that it had not done so. The witness for the Respondent on their part in cross examination stated that there is no unjust enrichment on the part of the Respondent and that the bank is operating within the law. Until the bank’s responsibilities are extinguished either by the court or an agreement by the parties, the bank holds the money in trust. Further that the funds are still active and cannot go to the Unclaimed Financial Assets Authority. It is trite law that courts cannot rewrite contracts and as per the bank guarantee herein, the funds can only be released subject to two preconditions as outlined earlier in this judgment. Looking at the said guarantee, it is discernable that the same was issued jointly and severally on behalf of the Claimant and Sea Turtle Limited who were found liable in the magistrate court and the liability of the latter was upheld subsequently upheld in the appellate court. Sea turtle, while yes is separate and distinct from the Claimant, is still the judgment debtor and no evidence has been adduced to prove that the said company has paid the Kwale Plaintiffs as per the terms of the guarantee. The fact that the guarantee was joint and several is evidenced by the Claimant’s letter dated 8 November2021 to the Respondent where he requested for the guarantee to be extinguished. This court wonders how this would have been possible and yet the appeal had not been determined as at this date. Therefore, upon consideration of the evidence on record, this court finds that the Claimant has not proved its case on a balance of probabilities. It is the finding of the court that the intention of the parties on execution of the guarantee was clearly spelt out including as to who was bound. The bank guarantee as per its terms, which this court will not rewrite as there has been no imputation or evidence of fraud, coercion or undue influence in the making of the same, remains active as there has been no demand made either through an agreement by both parties evidencing the settlement of the judgment debt by Sea Turtle or a judgment awarding the said sums to the Claimant. Ultimately, the claim is dismissed with costs of Kshs. 10,000/- to the Respondent. # DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……7th…….DAY **OF……MAY……2026** In the presence of; # HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR …N/A… for Claimant; …Mr. Mureithi.. for Respondent C/A Sabina SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. THERESA N. MWANGEKA** Mombasa Small Claims Court Small Claims Court Date: 2026-05-07 10:49:48