Zenka Digital Ltd v Tuikeny (Commercial Case E97193 of 2025) [2025] SCC 50 (KLR)
The bottom line
#A Kenyan court threw out a lender's Kshs 95,700 mobile-loan claim because screenshots and an agreement alone could not prove the loan was actually disbursed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant proved on a balance of probabilities that the Respondent borrowed a loan of Kshs. 50,000/= on 20th October 2024
- 2.Whether the Respondent defaulted in repaying the loan reportedly advanced to her
- 3.Whether the failure to respond to the demand letter amounted to an admission of indebtedness
- 4.Whether the Mpesa message screenshot was admissible electronic evidence under section 106B of the Evidence Act
Key legal issues
#Burden of proof in formal proof/undefended claims
The claimant must still prove the claim on a balance of probabilities notwithstanding the absence of the respondent
Relying on section 107(1) of the Evidence Act and the Court of Appeal's decision in Daniel Toroitich arap Moi v Mwangi Stephen Muriithi, the court held that formal proof requires the claimant to lay evidence before the court, which the court must examine; if it falls short, the claim must be dismissed regardless of the absence of rebuttal.
Proof of disbursement of the loan
The Mpesa screenshot did not prove the Claimant disbursed the loan since the sender's identity was undisclosed and no Mpesa statement was produced
The screenshot did not disclose who sent the money to the Respondent's number; the Claimant's own Mpesa statement for the period would have advanced its case. Without these, there was no evidence the Claimant disbursed the loan.
Necessity of a loan statement/account
Only a statement of account/loan statement could prove the borrowing, default and extent of indebtedness under clause 9.5 of the loan agreement
Clause 9.5 of the loan agreement made the customer's loan statement conclusive evidence of transactions on the account. The Claimant did not produce any statement of account, so the court could not determine whether the Respondent defaulted or the extent of indebtedness.
Admissibility of electronic evidence
The Mpesa extract did not meet the admissibility test under section 106B of the Evidence Act, which requires a certificate
Drawing on County Assembly of Kisumu v Kisumu County Assembly Service Board, the court held the section 106B certificate requirement is mandatory. Although section 32(2) of the Small Claims Court Act permits admission of otherwise inadmissible credible material, judicial notice of the risk of manipulation of electronic evidence means such evidence, especially where a party is represented, must satisfy section 106B.
Legal principles established
#- Even in an undefended claim, the claimant remains duty-bound to prove the case to the required standard
- Failure to respond to a demand letter is not an admission of indebtedness and does not shift the burden of proof
- Electronic evidence before the Small Claims Court, at least where a party is represented, must be adduced per section 106B of the Evidence Act to pass the credibility and trustworthiness test
Court orders
#- 1.The claim is struck out with no order as to costs
- 2.File closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Small Claims Court Act (claim determined under section 30, Small Claims Court Act)
Relief refused
#Judgment in the sum of Kshs. 95,700/=
Claimant failed to prove the loan, the default, or the indebtedness to the required standard
Costs of the claim
No order as to costs
Interest at court's rate from when the breach arose
No judgment entered since the claim was not proved
Costs
No order as to costs (each party to bear own costs impliedly - 'struck out with no order as to costs')
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
even where the Respondent has not made an appearance, the Claimant is duty bound to prove their case to the required standards
A debtor’s failure to respond to a creditor’s demand letter does not shift the burden of proof of the existence of the loan to the debtor.
can only pass the test of credibility and trustworthiness if the said evidence is adduced per section 106 B of the Evidence Act
The upshot of the foregoing is that this claim is struck out with no order as to costs.
Issues in the judgment
#Judgment contains an inconsistent claim figure - claim pleaded at Kshs. 95,700/= but later referred to as Kshs. 97,500/=
Judgment contains a typographical error in the date - '20th October 202'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zenka Digital Ltd v Tuikeny (Commercial Case E97193 of 2025) [2025] SCC 50 (KLR)", Case Analysis (2025). Not stated in judgment (Small Claims Court claim, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2025/50/eng@2025-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.