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Small ClaimsPartially AllowedSCCOME6792 of 2026

Kopo Kopo Inc v Kalee t/a Bei Nafuu Enterptises-Redsoil (Commercial Case E6792 of 2026) [2026] SCC 223 (KLR)

Small Claims Court
14 August 2026
1,089 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Nairobi court cut a lender's 85% annual interest to 18%, ruling excessive loan charges can be thrown out even when the borrower never defends the case.

What this practically means

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Executive summary

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The claimant instituted a claim dated 12/6/2026 seeking judgment against the respondent for Kshs. 309,535/= plus costs and interest, arising from a loan of Kshs. 305,000/= disbursed on 20/8/2024 and repayable on 16/2/2025 at Kshs. 432,649/= within 180 days. The respondent did not enter appearance or file a defence despite opportunities to do so, and the matter proceeded under Section 30 of the SCC Act, with the claimant filing submissions. The court framed the principal issue as whether the claim was proven on a balance of probabilities, restating that a defaulting defendant's absence does not relieve a claimant of the burden of proof under Sections 107 and 109 of the Evidence Act. Finding sufficient evidence of the loan application and disbursement, the court turned to the enforceability of the contractual charges. It computed the charge at approximately 41.85% of the principal over six months, equivalent to about 84.9% per annum, and held the interest rate unconscionable. Relying on authority that courts may decline enforcement of unconscionable bargains and on the rationale of the in duplum rule under Section 44A of the Banking Act as instructive, the court declined to enforce the claimed interest. It instead allowed interest at 18% per annum on the principal for the six-month contractual period, deducted the Kshs. 123,114/= already repaid, ordered the balance to attract court rates interest from judgment, awarded costs assessed at Kshs. 10,000/=, and granted the respondent 30 days stay of execution. The claim therefore succeeded only in part.

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 has proven the claim on a balance of probabilities despite the respondent's failure to enter appearance or file a defence
  2. 2.Whether the contractual interest and charges levied on the loan are enforceable or unconscionable

Key legal issues

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01

Whether the claim was proven on a balance of probabilities

Holding

Yes. Sufficient evidence was on record that the respondent applied for, received, and was disbursed a loan of Kshs. 305,000/=, notwithstanding the undefended nature of the proceedings.

Reasoning

Sections 107, 108 and 109 of the Evidence Act place the burden of proof on the party alleging a fact. The respondent having failed to enter appearance or file a defence, the claimant's averments were uncontested, but the court emphasised that default does not relieve the claimant of the evidentiary burden. Sufficient documentary evidence of the loan application, disbursement and repayment terms was adduced, satisfying the balance-of-probabilities standard.

p. 3
02

Whether the contractual interest and charges of approximately 84.9% per annum were enforceable

Holding

No. The interest rate was unconscionable, excessive and disproportionate, and the court declined to enforce it, awarding interest at 18% per annum instead.

Reasoning

The charges translated to about 41.85% of the principal over six months, or approximately 84.9% per annum. Although parties are bound by contract, courts may refuse enforcement of unconscionable bargains. The in duplum rule under Section 44A of the Banking Act, though not directly applicable to a non-bank lender, was treated as instructive on preventing unjust enrichment and oppressive lending.

p. 4

Legal principles established

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  • Even in undefended proceedings, the claimant must prove the claim on a balance of probabilities; default does not substitute for proof.
  • Courts retain discretion to decline enforcement of contractual terms that result in unjust, oppressive or unconscionable outcomes.

Court orders

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  1. 1.Interest allowed on the principal amount of Kshs. 305,000/= at the rate of 18% per annum for the contractual period of six (6) months from 20/8/2024
  2. 2.The sum of Kshs. 123,114/= already repaid by the respondent to be deducted
  3. 3.The balance to attract interest at court rates from the date of judgment till payment in full
  4. 4.Costs assessed at Kshs. 10,000/= awarded to the claimant
  5. 5.The respondent granted 30 days stay of execution

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Small Claims Court Act, Section 30 (proceedings in absence of a response)

Relief refused

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The full claimed sum of Kshs. 309,535/= inclusive of the contractual interest and charges

The contractual interest and charges were unconscionable, disproportionate and inequitable and the court declined to enforce them

p. 5

Costs

The claimant is awarded costs assessed at Kshs. 10,000/=.

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 in undefended proceedings, the claimant must adduce sufficient evidence to prove the claim on a balance of probabilities. A default judgment is not a substitute for proof of a claim, particularly where the relief sought is unliquidated or requires evidentiary substantiation
p. 3Standard of proof in undefended claims
While parties are generally bound by the terms of their contract, this Court retains discretion to decline enforcement of terms that result in unjust, oppressive, or unconscionable outcomes.
p. 4Unconscionable contractual terms
The Court finds it just and reasonable to allow interest on the principal amount of Kshs. 305,000/= at the rate of 18% per annum for the contractual period of six (6) months from 20/8/2024. The amount of Kshs. 123,114/= shall be deducted being the sum already repaid by the respondent.
p. 5Final orders - interest and repayment
The claimant is awarded costs assessed at Kshs. 10,000/=. The respondent is granted 30 days stay of execution. It is so decreed.
p. 5Final orders - costs and stay

Issues in the judgment

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minor

The judgment describes the claimant as having been loaned the money, which appears to be a typographical reversal of the roles

minor

The date of the statement of claim (12/6/2026) post-dates the loan events but the judgment does not otherwise present internal contradictions

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, "Kopo Kopo Inc v Kalee t/a Bei Nafuu Enterptises-Redsoil (Commercial Case E6792 of 2026) [2026] SCC 223 (KLR)", Case Analysis (2026). SCCOME6792 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/223/eng@2026-08-14

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