Mwazighe v Izwe Loans Kenya Limited (Commercial Case E020 of 2026) [2026] SCC 28 (KLR)

5. The matter was heard by way of viva voce evidence to which I have duly considered the respective testimonies of parties as well as the exhibits produced. Analysis a. Whether the respondent erroneously deducted the claimant a total of Kshs. 220,363/= b. Who pays the costs of the claim. Whether the respondent erroneously deducted the claimant a total of Kshs. 220,363/= 6. From the onset let me point out that the claimant has approached this court with unclean hands and she is guilty of material non-disclosure at least from the reading of the pleadings vis a vis what she actually stated in court on oath. What she pleaded, she reversed them when testifying. 7. On the application and receipt of the 1st loan of Kshs.200,000/= is not in dispute save that the claimant asserts that the repayment period was for 24 months. The respondent on the other hand asserts that the same was for 72 months. 8. What I gather the claimant to support his claim for 24 months and not the 72 months as claimed by the respondent was the fact that the 24 months was what was communicated to her by the respondent’s stafi and not necessarily what was in the application. Be that as it may at least on the part of the claimant, she repaid the loan within the 24 months as advised. There was no evidence of such advise on record presumably the same was by way of mouth but unknown to her, such despite are well settled using documentary evidence and this is what the respondent’s witness in his testimonies insisted time without number and which happens to be the true position of law especially in the absence of that stafi to support the allegations of the claimant. 9. Proceeding on the same wavelength with the claimant, she asserts but as it appeared later wrongly so that she cleared the 1st loan and the respondent advanced her another loan that she did not consent to and according to her therefore the erroneous deductions were as a result of the 2nd loan facility advanced to her. This is based on the questions posed to her by the court after being cross examined by the respondent. 10. As it would appear later when the respondent’s witness took to the dock, that was not the situation as it obtained. This is what is famously referred to in modern slang, “kwa ground vitu ni difierent”. 11. The respondent informed the court that when the first loan was advanced to the claimant, she not only executed the loan application form but also the payment schedule and as per the schedule, the loan was to be repaid in 72 months and not 24 as indicated by the claimant. Later on in September 2021, the loan was non performing (according to the respondent) and the claimant applied for a further Kshs.300,000/= and which was to be paid in 96 instalments. 12. It is the respondent’s testimony that the loan of Kshs.300,000/= herein after referred to as the 2nd loan was disbursed in 3 ways; Kshs.196,041.12 to ofiset the balance of the 1st loan, Kshs.36,000/= for fee arranging and Kshs.103,958.88 disbursed to the claimant’s mobile account. 13. The claimant despite stating that she did not apply for this 2nd loan, she duly acknowledged receipt and I dare say expended the money as there is no evidence that she refunded the money. The question that begs therefore is, if the claimant did not consent to the 2nd loan being disbursed, why did she acknowledge receipt and utilize the amount advanced? Your guess is as good as mine. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/28/eng@2026-04-17 2

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14. I have perused the payment schedule and I do confirm that indeed the claimant executed the said schedule thereby agreeing to those terms and conditions and she cannot now disassociate herself from the said agreement. It has been said time without number that agreements between parties are binding and the courts are meant merely to enforce the rights of the respective parties and not to rewrite the agreement save for those instances when the court can be called upon to interfere. Those instances are not present in this case. They were infact not pleaded. On this issue see the case of National bank of Kenya ltd vs Pipeplastic Samkolit ltd & another(2001) eKLR 15. The long and short of this is that upon perusal of the said application forms and the respective payment schedules, there are no erroneous deductions that were made or have been made. The same were done in accordance with the loan agreement executed between the claimant and the respondent and as they say, “dawa ya deni nikulipa”. The claimant is thus bound to settle any outstanding loan amounts and thus her claim cannot lay in the sphere of any erroneous deductions. 16. Before concluding this judgment, I have had the occasion to peruse the submissions filed by the claimant and the respondent alike. In the submissions by the claimant she raised 4 main issues. One that the respondent admitted charging huge interests on unsecured loans, two that there was non disclosure of the true loan terms and lack of consent, three that in duplum rule applies and lastly the continues unlawful deductions after loans were cleared. All these issues being raised in submissions save for the last one was not raised in pleadings. It has been held by courts above that submissions are not pleadings. Issues raised in submissions however fiowery cannot take the place of evidence. 17. Be that as it may on the issue of admission of charging huge interest rates, the claimant was well aware of this executed the loan applications and infact went for a second loan while well aware of the huge interest rates. She cannot now cry foul. On the 2nd issue about non disclosure and lack of consent, these were not pleaded as I have stated generally and nowhere in her statement and testimony in court does she complain that she was not aware of the terms of the agreement. The lack of consent was not demonstrated at least I am aware she is an adult of sound mind and capable of giving consent and this was evidenced by her executing the loan application forms. 18. On the 3rd issue of the in duplum rule, as I have stated it was not pleaded and parties cannot be ambushed midway of the proceedings and especially in submissions. It is appalling that despite agreeing that it was not an issue in dispute counsel went ahead and submitted on it. Lastly there is no proof that the has been continued and unlawful deductions after loans were cleared. This in my view appears to be the misguided assertion the claimant had pursuant to the alleged advice she received from one of the respondent’s employees and/or agents. The application form and the payment schedule are the true north in this regard and not hearsay if I may call it that way. 19. On the other hand, the submissions by the respondent agree to the issue of the binding nature of pleadings and new issues cannot be raised midstream and the fact that in duplum rule has no application in this case for the reasons that it was not pleaded and secondly that the same is only applicable to non performing loans which is not the case herein a fact also confirmed by RW 1 Mr. Mario. 20. In the circumstances I do find and hold that the claim as presented for the reasons stated above is not one for allowing for want of proof and it is indeed destined for dismissal shortly. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/28/eng@2026-04-17 3

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Who bears costs of the claim. 21. As to the issue of costs, the respondent has strenuously defended the claim and had the claimant understood her obligations as she signed for them she would not have unnecessarily dragged the respondent in court. 22. Consequently, the respondent being successful in the matter, it is awarded costs of the claim. Conclusion And Disposition. 23. 24. The upshot of the foregoing I make the following final orders; a. The claimant’s claim contained statement of claim dated 11/2/2026 is wholly without merit and the same is dismissed in toto. b. Costs are awarded to the respondent. Orders accordingly. DATED, SIGNED AND DELIVERED AT VOI SMALL CLAIMS COURT THIS 17th DAY OF April 2026. F.M. MULAMA ADJUDICATOR/RM In the presence of: Court Assistant:- Vivian Wambui. N/A for Claimant. N/A for the respondent https://new.kenyalaw.org/akn/ke/judgment/scc/2026/28/eng@2026-04-17 4

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