Tanui v Mutai (Commercial Case E740 of 2026) [2026] SCC 206 (KLR) (7 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT OF KENYA AT UASIN GISHU COUNTY** **COURT NAME: ELDORET SMALL CLAIMS COURT** **CASE NUMBER: SCCCOMM/E740/2026** **LUCY TANUI VS SHARON JEPCHUMBA MUTAI** **JUDGMENT** 1. Before this Court for determination is a Statement of Claim dated 11th June, 2026, in which the claimant seeks: a) A refund of Kshs. 995,100/-; b) General damages for breach of contract; c) Costs of the suit; and d) Interest. 1. The claimant's case, as pleaded in the Statement of Claim, is that the parties were friends and that between the months of April and May 2025, she transferred various sums of money to the respondent on diverse dates, as particularized in paragraphs 3(b) to 3(j) of the Statement of Claim, amounting to a total of Kshs. 995,100/-. She contends that despite demand and notice of intention to institute legal proceedings, the respondent has failed, refused and/or neglected to refund the said amount. 2. The respondent filed a Response dated 25th June, 2026, denying liability. She averred that no contract existed between herself and the claimant. She further contended that any alleged agreement whose purpose was to procure, purchase or influence employment with the Teachers Service Commission (TSC) for the claimant's dependant would be illegal, void and unenforceable, as pleaded in paragraphs 2(a) to 2(g) of the Response. The respondent further averred that she had advanced the claimant Kshs. 1,400,000/- in cash in the year 2024 and that the sums transferred by the claimant constituted repayments of that earlier advance by instalments. 3. The matter proceeded by way of viva voce evidence. Both parties testified in support of their respective cases without calling any additional witnesses. Upon the close of the hearing, both parties indicated that they did not wish to file written submissions. Having carefully considered the pleadings and the evidence on record, the Court is of the view that the following issues arise for determination: a) Whether the claimant transferred Kshs. 995,100/- to the respondent. b) If so, whether the said sum constituted a loan repayable by the respondent or repayment of an earlier debt allegedly owed by the claimant. c) Whether the claimant is entitled to the reliefs sought. 1. On the first issue, the claimant testified that she transferred various sums of money to the respondent on diverse dates between April and May 2025, amounting to Kshs. 995,100/-, and that the respondent has failed to refund the same. In support of her testimony, she produced M-Pesa statements showing the transfers, which collectively confirm that a total sum of Kshs. 995,100/- was remitted to the respondent. 2. The respondent did not dispute receiving the said sums. The respondent testified that she had advanced the claimant a sum of Kshs. 1,400,000/- in cash in the year 2024 and that the impugned M-Pesa transfers amounting to Kshs. 995,100/- constituted repayments of that earlier advance. However, apart from her bare assertions, she did not produce any documentary evidence, written agreement, acknowledgment, receipt or call eye witnesses to demonstrate that such a cash transaction ever took place. Equally, she did not call any witness to corroborate her testimony regarding the alleged advance. 3. The respondent further contended that the claimant sought to procure employment with the Teachers Service Commission (TSC) for a dependant through an unlawful arrangement. However, no evidence whatsoever was tendered to support that allegation. The Court has not been presented with any agreement, communication, payment instructions or any other material from which it could infer that the parties had entered into an agreement to secure, purchase or improperly influence employment with the TSC. That allegation therefore remains unsubstantiated. 4. The respondent also testified that she advanced the money to the claimant because the latter was experiencing financial distress. If indeed she had advanced Kshs. 1,400,000/- and had only recovered Kshs. 995,100/-, one would reasonably expect her to pursue the outstanding balance of Kshs. 404,900/-. Notably, she neither filed a counterclaim nor sought any relief for the alleged balance, besides her allegation that the balance has not been paid. This omission considerably weakens the credibility of her assertion that the M-Pesa transfers were repayments of an earlier loan. 5. On the other hand, the claimant produced M-Pesa statements demonstrating that she transferred a total of Kshs. 995,100/- to the respondent. The respondent admitted receiving those funds but failed to provide credible evidence explaining the legal basis upon which she was entitled to retain them. The evidential burden having shifted to the respondent, she failed to discharge it. 6. With respect to general damages, the claimant neither pleaded nor proved any exceptional circumstances that would warrant an award of general damages. Consequently, the prayer for general damages for breach of contract is declined 7. Consequently, upon evaluating the entire evidence on record on a balance of probabilities, this Court finds that the claimant has proved her claim for the refund of Kshs. 995,100/-. The respondent has failed to establish that the transfers constituted repayments of an earlier loan or to otherwise justify her retention of the said sum. The claimant is therefore entitled to recover the amount claimed together with costs of ksh 67,000/- plus interest. Stay of 30 days is granted Judgment dated and delivered at Eldoret this 7th day of August 2026 M. E. ALIGULA- RM In the presence of C/A Mr. Lepatoiye Claimant: N/A Respondent:N/A