https://new.kenyalaw.org/akn/ke/judgment/scc/2026/193

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT NAIROBI** **CLAIM NO. E106398 OF 2025** **JOSIAH NYAWARA WAIRIMU…….………………………...……CLAIMANT** **VERSUS** **MARTIN MUNGOYA KINYANJUI T/A** **GITHEMBE GENERAL STORES………...………………….RESPONDENT** **JUDGMENT** 1. The claimant instituted this claim vide the statement of claim dated 5/11/2025 seeking judgment against the respondent for Kshs. 520,000/= plus costs and interests. It was the claimant’s case that pursuant to a Memorandum of Understanding dated 1/5/2025 he supplied red soil on behalf of the respondent for delivery to Kenya Clay Products Ltd. That between May and July 2025, he supplied red soil valued at Kshs. 825,000/=. That the respondent then issued various post-dated cheques, including Cheque Nos. 000971 and 000969, which were both dishonoured upon presentation. That the respondent subsequently issued replacement Cheque Nos. 000032 and 000031, but only made a part payment of Kshs. 300,000/= leaving an outstanding balance of Kshs. 520,000/=. One of the replacement cheques for Kshs. 50,000/= was also returned unpaid with the remark “Payment Stopped by Drawer.” He thus sought payment for Kshs. 520,000/=. 2. The respondent filed a response dated 11/2/2026 and admitted the memorandum of understanding with the claimant and another subcontractor on John Kimani Thuku, for the supply of red soil to Kenya Clay Products Ltd. The respondent averred that he paid a total of Kshs. 552,000/= towards the contract sum, leaving a balance of Kshs. 273,000/= payable jointly to the claimant and John Kimani Thuku. He further contended that the claimant and his co-contractor improperly pursued separate claims arising from the same contract despite being joint parties to the agreement. The respondent maintained that the present suit was res judicata in light of a related suit filed by John Kimani Thuku and urged the court to dismiss the claim with costs. 3. The matter proceeded under ***Section 30 of the SCC Act.*** The claimant filed submissions dated 13/4/2026 whereas the respondent’s were dated 30/5/2026. I have considered those submissions alongside the pleadings and evidence before court and the main issue for determination is whether the claimant has proven the claim on a balance of probabilities. 4. The Court of Appeal in **Mumbi M'Nabea v David M.Wachira [2016] eKLR** while discussing the standard of proof in civil liability claims in our jurisdiction had this to say: - ***“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not.”*** 1. ***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. This essentially means that the burden of proof lies on the party alleging a fact of which correlative rule is that he who asserts a matter or a fact must prove but he who denies it need not prove it. The party on whom lies the burden must adduce evidence of the disputed facts or failing his contention. Simply put, he who alleges must prove. See **Daniel Muthuka Ngui v Bernard Nganda Mutua & another [2019] eKLR.** 2. There is no dispute that the parties entered into the Memorandum of Understanding dated 1/5/2025. The agreement shows that the claimant and John Kimani Thuku were subcontracted to supply red soil under the respondent’s contract with Kenya Clay Products Ltd. 3. The respondent’s principal defence was that the contract was jointly held by the claimant and John Kimani Thuku. However, the evidence placed before the Court demonstrates that the respondent treated the subcontractors separately in payment. I do note that the respondent issued several cheques specifically in favour of the claimant, including cheques for Kshs. 775,000/= and Kshs. 50,000/= which form part of the subject matter of this suit. The issuance of those cheques constituted a clear acknowledgment of indebtedness to the claimant personally. Notably, the respondent did not deny that it issued the cheques complained of and that they failed to clear. 4. The Court has also considered the pleadings and judgment in SCCOMM No. E106393 of 2025 filed by John Kimani Thuku. In that suit, John Kimani Thuku sought payment of Kshs. 775,000/= on account of his own deliveries and obtained judgment. The existence of that suit does not extinguish the claimant’s separate claim, particularly where the evidence shows that the respondent issued separate cheques to the claimant acknowledging a distinct liability. 5. The respondent alleged that he paid a total of Kshs. 552,000/=. The claimant admitted receipt of Kshs. 300,000/= and satisfactorily explained that the further sums relied upon by the respondent either related to a different transaction or had been refunded. The respondent did not place before the Court sufficient evidence to demonstrate that those payments were made towards satisfaction of the debt that forms the subject of this claim. 6. Having considered the documentary evidence, including the Memorandum of Understanding, delivery notes, dishonoured cheques, and correspondence between the parties, the Court is satisfied that the respondent acknowledged the claimant's entitlement and failed to settle the outstanding amount. 7. Further, it is trite that issuance of a dishonest cheque is in itself an admittance of the amounts therein. See **Equatorial Commercial Bank v Wilfred Nyasim Oroko [2015] eKLR, Modern Distributors Vs Ndungu Njeru t/a Ndungu Njeru Filling Station [2006] eKLR, Thammo Holdings Limited v Timothy Mwaniki Muriithi [2012]eKLR** and **Maimuna Mohammed (suing as the Legal Representative of the late Stephen Maina Kariuki) v Kenya Bus Services [2004] eKLR** where our courts have consistently held that a dishonored cheque is an admission of liability on the part of the issuer and that the payee acquires an immediate right of recourse against the drawer for the recovery of the money the moment the cheque is dishonored. See also ***Section 43*** of the ***Bills of Exchange Act.*** 8. Accordingly, I am satisfied that the claimant proved the claim on a balance of probabilities. To that end, I hereby enter judgment in the following terms: - 9. **Judgment is hereby entered in favour of the claimant as against the respondent for Kshs. 520,000/= plus interest at court rate from the date of judgment till payment in full.** 10. **The claimant is awarded costs of Kshs. 25,000/=.** 11. The respondent is granted a 30-day stay of execution. **It is so decreed.** **DATED** and **DELIVERED** at **NAIROBI** this 7TH Day of August 2026 **HON. GLADYS. W. KIAMAH** **RESIDENT MAGISTRATE/ADJUDICATOR**