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

The Respondent neither entered appearance nor filed a Response to the Claim despite having been duly served with all the pleadings and the relevant notices. Given the nature of the claim, this matter proceeded to formal proof when the Claimant’s counsel elected to have this claim determined under section 30 of the Small Claims Court Act. ANALYSIS & DETERMINATION This court has duly considered all the pleadings and all the evidence placed before it. It is given that this is an undefended claim. Be that as it may, the law in this jurisdiction is that even where the Respondent has not made an appearance, the Claimant is duty bound to prove their case to the required standards. The foregoing position finds support in the authorities set out below. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides thus: ‘’Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.’’ In Daniel Toroitich Arap Moi –vs- Mwangi Stephen Muriithi & Another [2014] eKLR, the Court of Appeal held that: “It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be

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dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.” A common thread running through the authorities above is that even in the absence of the Respondent’s evidence to controvert the Claimant’s claim, this court is duty-bound to determine whether the Claimant proved their claim to the required standards or not. The Claimant relied on a copy of the loan agreement dated 20 th October 2024, a Demand Letter dated 15 th May 2025, and an Mpesa transaction message screenshot for 20th October 2024 to prove this claim. The first hurdle the Claimant was expected to surmount in a bid to prove on a balance of probabilities that the Respondent owed them Kshs. 97,500/= was to prove on a balance of probabilities that the Respondent borrowed a loan of Kshs. 50,000/= from them on 20th October 202. Clause 2 of the loan agreement dated 20 th October 2024, adduced by the Claimant, defines a request for a loan as a request or instruction received by Zenka from a customer or purportedly from a customer through the system and upon which Zenka is authorised to act on. The Claimant relied on the loan agreement herein to prove that the Respondent borrowed a loan of Kshs. 50,000/= from them as pleaded in the Statement of Claim herein. This court is of the considered view that the loan agreement herein does not meet the definition of a loan request per clause 2 of the loan agreement herein.

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One may be tempted to argue that the Mpesa transaction message screenshot filed by the Respondent proved on a balance of probabilities that the Respondent received from the Claimant Kshs. 50,000/= on 20 th October 2024, which can only be implied to be a loan advanced by the Claimant to the Respondent. However, the said Mpesa message screenshot does not disclose the identity of whoever was sending money to the Respondent’s mobile phone number. If the Claimant wanted to rely on the said Mpesa message screenshot to prove that they disbursed money to the Respondent as alleged in their Statement of Claim, their Mpesa statement for the period in question would have advanced their case. Given the absence of the identity of the person who sent money to the Respondent’s phone number, and in the absence of the Claimant’s Mpesa statement for the period in question, there is no evidence on record that the Claimant disbursed a loan of Kshs. 50,000/= to the Respondent as pleaded in the Statement of Claim herein. The other question is whether the Respondent defaulted in repaying the loan reportedly advanced to her by the Respondent. Clause 9.5 of the loan agreement herein is explicit that a Statement of the customer’s (Respondent’s) loan account shall be conclusive evidence of the transactions carried out on the Respondent’s account during a given period. The foregoing shows that only a statement of account/loan statement could prove on a balance of probabilities that the Respondent borrowed a loan of Kshs. 50,000/= from the Claimant, defaulted in repaying the said loan, and the extent of the Respondent’s indebtedness to the Claimant.

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The Claimant did not place before this court the statement of account/loan statement relating to the claim herein. In the absence of the statement of account/loan statement with respect to the loans herein, this court cannot tell if the Respondent defaulted in repaying the loan reportedly advanced to her by the Claimant. It is not lost to this court that it could be an attractive argument that the failure by the Respondent to respond to the demand letter herein was an admission of the Respondent’s indebtedness to the Claimant to the tune of Kshs. 97,500/=. This court takes the considered position that the failure by a party to respond to a demand letter demanding the repayment of an alleged debt is not an admission of indebtedness by the alleged debtor to the alleged creditor in that demand letter. 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. It is also worth noting that the Mpesa message extract herein relied upon by the Claimant to prove their claim does not meet the test of admissibility of electronic evidence under section 106B of the Evidence Act. To this end, this court draws inspiration from the Court of Appeal’s holding in County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR where the court stated that, despite the introduction of the blanket declaration of admissibility under the provisions of section 78A, the requirement of a certificate as described in section 106B is a mandatory one which cannot be obviated by constitutional prohibitions against undue regard to procedural technicalities This court is well aware that section 32 (2) of the Small Claims Court Act provides that the Court may admit as evidence in any proceedings before it,

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any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence. However, this court takes judicial notice of the risk associated with the manipulation of electronic evidence in this modern age. It is against this backdrop that this court takes the position that electronic evidence adduced before the Small Claims Court, more so in instances where a party is represented by an advocate well versed in the rules of evidence, can only pass the test of credibility and trustworthiness if the said evidence is adduced per section 106 B of the Evidence Act. The reasons above incline this court to only draw the irresistible conclusion that the Claimant failed to prove their claim to the required standards. DETERMINATION The upshot of the foregoing is that this claim is struck out with no order as to costs. Judgment accordingly. File closed. Read, signed, and delivered in open Court at Bungoma this 04 th day of November 2025 T.O. OMONO ADJUDICATOR In the presence of: Ms. Nakhanu for the Claimant

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C/A: Mr. Rioba

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