Cherowo v Kimtai & another (Commercial Case E094 of 2026) [2026] SCC 199 (KLR)
The bottom line
#A Kenyan Small Claims Court awarded a lender the full Kshs. 370,000 loan, ruling that borrowers must prove any repayments they claim to have made.
What this practically means
#Executive summary
#Key legal issues
#Whether the alleged repayment of Kshs. 20,000/= was proved
The Claimant proved on a balance of probabilities the advancement of Kshs. 370,000/=; the alleged repayment of Kshs. 20,000/= was not proved and the outstanding principal remains Kshs. 370,000/=
The Respondents conceded receipt of Kshs. 370,000/= but asserted repayment of Kshs. 20,000/=. The court found that no evidence was tendered to substantiate the alleged repayment, so the burden of proving the repayment fell on the Respondents and was not discharged. Judgment therefore remains for the full principal sum of Kshs. 370,000/=.
Whether Kshs. 37,000/= as collection charges and legal fees is recoverable in addition to costs
The prayer was declined; awarding such expenses in addition to costs would amount to double compensation
Following Aberdare Maize Milling Ltd v Julius Kiambati M'mbura [2020] KEHC 370 (KLR), the court held that costs ordinarily include search expenses and expenses of demand, so awarding collection charges and legal fees on top of costs is double compensation. Costs are also discretionary and should not be converted into an automatic additional award of compensation.
Whether the Respondents' instalment proposal should be allowed at this stage
Declined at this stage without prejudice to a proper application under Rule 27 of the Small Claims Court Rules upon issuance of the decree
Section 36(1)(a) of the Small Claims Court Act empowers the court to order payment of a judgment debt in a lumpsum or by instalments, but Rule 27 contemplates an application upon issuance of a decree supported by evidence demonstrating inability to satisfy the decree in a lumpsum. The Respondents had merely proposed instalments in submissions without such evidence.
Legal principles established
#- A party alleging repayment of a debt must tender evidence to substantiate the alleged repayment; unproved allegations of part payment do not reduce the principal
- Collection charges and legal fees cannot be awarded in addition to costs, as that amounts to double compensation since costs ordinarily include such expenses
Court orders
#- 1.Judgment be and is hereby entered for the Claimant against the Respondents in the sum of Kshs. 370,000/=
- 2.The sum of Kshs. 37,000/= claimed as collection charges and legal fees is declined
- 3.The sum of Kshs. 370,000/= shall attract interest at court rates from the date of filing of suit until payment in full
- 4.The Claimant shall have costs of the Claim assessed at Kshs. 25,000/=
- 5.The Respondents' proposal to liquidate the decretal sum by instalments is declined at this stage, without prejudice to the Respondents' right to make an appropriate application under the Small Claims Court Rules upon issuance of the decree
- Jurisdiction invoked
- Small Claims Court Act, Section 30 (disposal without formal trial)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherowo v Kimtai & another (Commercial Case E094 of 2026) [2026] SCC 199 (KLR)", Case Analysis (2026). SCCCOMM No. E094 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/199/eng@2026-08-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.