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Small ClaimsPartially AllowedKitale SCC CC. No. E105 of 2024· [2024] SCC 12 (KLR)

Buyechero v Soita (Commercial Case E105 of 2024) [2024] SCC 12 (KLR)

Small Claims Court
7 October 2024
2,429 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitale court awarded a private lender Kshs. 600,000 based on WhatsApp messages, but capped interest at the loan amount, halving the claim.

What this practically means

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Executive summary

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The Claimant sued in the Kitale Small Claims Court claiming Kshs. 1,000,000/= on the strength of a loan of Kshs. 300,000/= advanced to the Respondent in February 2023 through Mpesa and bank transfers, allegedly repayable within a month at 20% compound interest. The Respondent denied receiving the loan and disputed any agreement on interest. The court framed three issues: admissibility of the WhatsApp extracts, whether only licensed lenders may charge interest, and whether the claim was proved. It held that section 32 of the Small Claims Court Act frees the court from strict evidentiary rules, so the WhatsApp extracts were admissible despite the absence of a section 106B Evidence Act certificate. On party autonomy, an unlicensed lender is not precluded from charging interest voluntarily agreed. The Respondent, having admitted the phone number and profile photo in the messages and not pleaded forgery or fraud, failed to impeach the correspondence, which established the loan and a debt of Kshs. 432,000/= as at April 2023 with agreed interest of Kshs. 1,000/= per day. However, the court declined to blindly enforce the bargain: interest exceeding the principal was held unconscionable, excessive and oppressive, and the in duplum rule - applied out of public interest under articles 10 and 158 of the Constitution and guided by the Mugure (HELB) case - capped interest at Kshs. 300,000/=. Judgment was entered for the Claimant for Kshs. 600,000/= with interest at court rates from the date of filing, and costs assessed at Kshs. 30,000/=.

Key legal issues

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01

Admissibility of WhatsApp messages in the Small Claims Court

Holding

The WhatsApp extracts were properly before the court; the objection based on section 106B of the Evidence Act was misplaced because the Small Claims Court is not bound by strict rules of evidence under section 32 of the Small Claims Court Act.

Reasoning

The Respondent argued the WhatsApp extracts offended section 106B of the Evidence Act for want of a certificate of electronic records. The court held that such objections belong to mainstream civil courts; section 32(2) of the Small Claims Court Act permits admission of any record the court considers credible or trustworthy, so the extracts were admissible.

p. 2
02

Whether only licensed money lenders may charge interest

Holding

No; parties' autonomy allows voluntary agreement on interest rates, and an unlicensed lender may charge interest where the debtor voluntarily agrees. Courts intervene only where the contract is unconscionable.

Reasoning

Counsel for the Respondent cited no authority for the proposition that only Central Bank-licensed lenders may charge interest. The court held that party autonomy is the cornerstone of contracts; courts can step in only where a contract is unconscionable.

p. 3
03

Whether the Claimant proved her claim

Holding

The court found a binding money lending agreement of Kshs. 300,000/= and an agreement to pay Kshs. 432,000/= plus Kshs. 1,000/= per day interest, but capped the recoverable interest at the principal, awarding Kshs. 600,000/=.

Reasoning

The Respondent's evidence was evasive and untruthful; he admitted the phone number and profile photo in the WhatsApp messages but did not plead forgery or fraud. The messages showed the loan and the agreed debt of Kshs. 432,000/= with Kshs. 1,000/= daily interest. However, interest of over Kshs. 700,000/= was unconscionable, so the in duplum rule limited the claim to Kshs. 600,000/=.

p. 4
04

Enforcement of an unconscionable interest rate and application of the in duplum rule

Holding

Equity may relieve a party from a bad bargain or unconscionable interest; the in duplum rule was applied out of public interest to cap interest at the principal amount.

Reasoning

The court relied on Shah JA in Fina Bank Ltd v Spares & Industries and Ajay Indravadan Shah v Guilders International Bank to hold that courts must enforce agreed interest only unless it is illegal, unconscionable or fraudulent. Interest exceeding double the principal advanced was excessive and oppressive. Guided by the Mugure (HELB) case, the court extended the in duplum rule to money lenders as a public interest measure under articles 10 and 158 of the Constitution.

p. 7

Legal principles established

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  • The Small Claims Court is not bound by the strict rules of evidence and may admit material it considers credible or trustworthy even if inadmissible in other courts
  • A party who admits ownership of the phone number and profile picture in WhatsApp messages and does not plead forgery or fraud cannot later impeach the authenticity of those messages
  • An unlicensed money lender is not precluded from charging interest on money lent where the debtor voluntarily agrees
  • A money lending agreement need not be in writing to be enforceable; parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved
  • Courts may decline to enforce an unconscionable interest rate; the in duplum rule applies out of public interest so interest cannot exceed the principal advanced

Court orders

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  1. 1.Judgment is entered against the Respondent for the sum of Kshs. 600,000/=
  2. 2.The sum of Kshs. 600,000/= shall earn interest at court rate from the date of filing the claim until payment in full
  3. 3.The costs due to the Claimant are assessed at Kshs. 30,000/=
  4. 4.Decree and Certificate of Costs to issue forthwith
Jurisdiction invoked
Small Claims Court Act, pecuniary jurisdiction of Kshs. 1,000,000/= invoked by the Claimant

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Buyechero v Soita (Commercial Case E105 of 2024) [2024] SCC 12 (KLR)", Case Analysis (2024). Kitale SCC CC. No. E105 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2024/12/eng@2024-10-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.