Mutiso v Mutuku (Commercial Case E101855 of 2025) [2026] SCC 56 (KLR)

introduction of more witnesses. When the matter came up on 20/5/2026, the respondent’s advocate intimated that they did not oppose the application. Consequently, the claimant was granted leave to file the additional documents within 7 days thereof. The respondent was also granted leave to file a further response if any within 7 days of service, and thereafter, parties were directed to file two-page submissions within 14 days. 5. I have considered the court record and note that the claimant did not file any such documents despite leave and neither did he file any submissions. 6. Regardless, I have seen and considered the pleadings, testimonies, evidence and submissions before court. The main issue for determination is whether the claimant has proved the sums claimed. 7. The standard of proof in civil claims is on a balance of probabilities. See the Court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR. 8. Sections 107, 108 and 109 of the Evidence Act, Chapter 80 of the Laws of Kenya places the burden of proof of a fact on the person who wishes the court to believe in the existence of such fact. 9. I have considered the court record. According to the documents produced by the claimant, the total payments made to the respondent via bank and MPESA amounts to Kshs. 351,000/=. Though the claimant alleged that he paid an additional Kshs. 119,000/= in cash, the respondent denied receipt of the alleged cash payment and no receipt, acknowledgement, witness evidence or other documentary proof was tendered to substantiate the same. The burden of proving that payment rested with the claimant and, in the absence of cogent evidence, the court is unable to find th the alleged cash payment of Kshs. 119,000/= was made. 10. I do note that it was not disputed that the respondent had repaid a total of Kshs. 90,000/=, as such, the outstanding amount from the proven payment stood at Kshs, 261,000/= and not Kshs. 290,000/ = as claimed. 11. I do however note that the respondent denied the nature of the transaction. The claimant on the one hand maintained that the debt streamed from a failed car purchase, whereas the respondent averred that the transaction related to supply of laptops and related accessories. The record refiects that the respondent produced invoices issued to the claimant for the supply of laptops, laptop bags and wireless mouses. 12. Notably, the invoices dated 7/7/2023, 8/7/2023, 99/7/2023 and 21/7/2023 were each for Kshs. 70,000/=. The dates and amounts refiected in those invoices substantially correspond with the payments shown in the claimant's own records including Kshs. 70,000/= paid on 7/7/ 2023, Kshs. 70,000/= paid on 8/7/2023, Kshs. 70,000/= paid on 9/7/2023, and Kshs. 70,000/= paid on 21/7/2023. 13. Further, apart from the pleadings and the complaint reported with the DCI, the claimant did not place before court any communication evidencing negotiations for, or purchase of, a motor vehicle. The correspondence produced does not refer to a Toyota NZE, a purchase price of Kshs. 680,000/ =, delivery arrangements, transfer documents or any other matters ordinarily associated with a motor vehicle transaction. 14. On the other hand, the invoices produced by the respondent provide a plausible explanation for the payments refiected in the claimant's documents and are consistent with the respondent's defence that the parties were engaged in transactions relating to computer equipment. 15. I do note that the claimant produced an agreement dated 8/2/2025 which was executed between the two parties at a police station wherein the respondent acknowledged a debt of Kshs. 311,000/=. The https://new.kenyalaw.org/akn/ke/judgment/scc/2026/56/eng@2026-07-03 2

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respondent however averred that the same was executed following his arrest and under police pressure. In the circumstances of this case, and noting the evident inconsistencies between the pleaded motor vehicle transaction and the documentary material before court, the agreement alone is insuficient to establish, on a balance of probabilities, that the proven payments were made towards the purchase of a motor vehicle as alleged by the claimant. 16. In the circumstances, I am not convinced that the claimant had proven that the sum claimed arose from a car sale agreement. 17. That said, the record refiected that a balance of Kshs. 261,000/= remained due. Though the respondent averred that he had fully repaid the only outstanding debt of Kshs. 85,000/=, the claimant’s statements clearly indicated that the respondent had received Kshs. 351,000/= from the claimant. While the respondent contended that the payments related to laptops and accessories, he did not produce any evidence to proof delivery of goods equivalent to the monies received, and neither did he ofier any plausible reason to establish a legal basis for retaining the balance. As such, that amount was recoverable. 18. The upshot is that the claim as framed was partly successful. To that end, I hereby order as follows: - 19. 1. Judgment is hereby entered in favour of the claimant as against the respondent for the sum of Kshs. 261,000.00/= plus interest at court rate from the date of judgment till payment in full. 2. The claimant is also awarded costs of Kshs. 25,000/=. The respondent is awarded 30 days stay of execution. It is so decreed. DATED AND DELIVERED AT NAIROBI VIA CTS THIS 3RD DAY OF JULY 2026 HON. GLADYS .W. KIAMAH RESIDENT MAGISTRATE/ADJUDICATOR https://new.kenyalaw.org/akn/ke/judgment/scc/2026/56/eng@2026-07-03 3

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