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Small ClaimsStruck OutNot stated in judgment (Small Claims Court claim, Bungoma)

Zenka Digital Ltd v Tuikeny (Commercial Case E97193 of 2025) [2025] SCC 50 (KLR)

Small Claims Court of Kenya
4 November 2025
1,506 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, a mobile loan application operator, sued the Respondent for Kshs. 95,700/= plus costs and interest, alleging that on 20th October 2024 the Respondent borrowed Kshs. 50,000/= repayable within one month at 39% interest, and that default triggered a daily interest of 1.5%, escalating the debt. The Respondent neither entered appearance nor filed a Response despite due service, and the claim proceeded to formal proof under section 30 of the Small Claims Court Act at the election of the Claimant's counsel. The Adjudicator, T.O. Omono, reiterated that even in an undefended claim the Claimant bore the burden of proving its case on a balance of probabilities, applying 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 found the loan agreement did not satisfy its own definition of a loan request; the Mpesa screenshot did not disclose the sender's identity and no Mpesa statement was produced, so disbursement was not proved. Under clause 9.5 of the loan agreement only a loan statement could conclusively prove borrowing, default and indebtedness, and none was produced. The court held that failure to respond to a demand letter is not an admission of indebtedness and does not shift the burden of proof. Further, the Mpesa extract failed the admissibility test under section 106B of the Evidence Act, per County Assembly of Kisumu v Kisumu County Assembly Service Board; section 32(2) of the Small Claims Court Act notwithstanding, electronic evidence from a represented party must satisfy section 106B. The claim was struck out with no order as to costs and the file closed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the Respondent defaulted in repaying the loan reportedly advanced to her
  3. 3.Whether the failure to respond to the demand letter amounted to an admission of indebtedness
  4. 4.Whether the Mpesa message screenshot was admissible electronic evidence under section 106B of the Evidence Act

Key legal issues

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01

Burden of proof in formal proof/undefended claims

Holding

The claimant must still prove the claim on a balance of probabilities notwithstanding the absence of the respondent

Reasoning

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.

p. 2
02

Proof of disbursement of the loan

Holding

The Mpesa screenshot did not prove the Claimant disbursed the loan since the sender's identity was undisclosed and no Mpesa statement was produced

Reasoning

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.

p. 4
03

Necessity of a loan statement/account

Holding

Only a statement of account/loan statement could prove the borrowing, default and extent of indebtedness under clause 9.5 of the loan agreement

Reasoning

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.

p. 5
04

Admissibility of electronic evidence

Holding

The Mpesa extract did not meet the admissibility test under section 106B of the Evidence Act, which requires a certificate

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The claim is struck out with no order as to costs
  2. 2.File closed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

TO
T.O. OmonoAdjudicator
majority

Wrote the judgment

Jurisdiction invoked
Small Claims Court Act (claim determined under section 30, Small Claims Court Act)

Relief refused

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Judgment in the sum of Kshs. 95,700/=

Claimant failed to prove the loan, the default, or the indebtedness to the required standard

p. 6

Costs of the claim

No order as to costs

p. 6

Interest at court's rate from when the breach arose

No judgment entered since the claim was not proved

p. 6

Costs

No order as to costs (each party to bear own costs impliedly - 'struck out with no order as to costs')

Quotable passages

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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
p. 2burden of proof in undefended claims
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.
p. 5effect of non-response to demand letter
can only pass the test of credibility and trustworthiness if the said evidence is adduced per section 106 B of the Evidence Act
p. 6electronic evidence before the Small Claims Court
The upshot of the foregoing is that this claim is struck out with no order as to costs.
p. 6disposition

Issues in the judgment

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minor

Judgment contains an inconsistent claim figure - claim pleaded at Kshs. 95,700/= but later referred to as Kshs. 97,500/=

minor

Judgment contains a typographical error in the date - '20th October 202'

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, "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.