Hassan v Dore (Commercial Case E99417 of 2025) [2026] SCC 63 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] SCC 63 (KLR) REPUBLIC OF KENYA IN THE MILIMANI SMALL CLAIMS COURT COMMERCIAL CASE E99417 OF 2025 GW KIAMAH, RM JULY 3, 2026 BETWEEN MOHAMUDHAKAN HASSAN .............................................................. CLAIMANT AND ABDUL KAHIA DORE ....................................................................... RESPONDENT JUDGMENT 1. The claimant instituted this suit via the undated statement of claim judgment seeking judgment against the respondent for Kshs. 737,504.00/= on the basis that the parties entered an agreement dated 5/12/2020 for the purchase of a motor vehicle for the sum of Kshs. 737,504.00/= but the respondent failed to deliver the vehicle despite payments. 2. The respondent filed grounds of opposition dated 4/9/2025 which were deemed to be the respondent’s response to the claim. They were on grounds that the claim was a non-starter as the parties had entered into an illegal oral agreement for the respondent to import the vehicle under the Disability Duty Exemption (DDE) program for the claimant. It was thus pleaded that the claimant could not pursue any legal remedy and had no right of action based on an illegal contract. 3. denying any such transaction or balance. It was pleaded that there was no satisfactory evidence and the claimant was put to strict proof. 4. The matter proceeded under Section 30 of the Small Claims Act and the claimant filed submissions dated 16/2/2026. The respondent’s were however not on record. 5. I have seen and considered the pleadings, testimonies, evidence and submissions before court. The main issue for determination is whether the claimed amount was satisfactorily proven. 6. 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. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/63/eng@2026-07-03 1
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7. 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. 8. I have considered the court record. The claimant’s case was founded on an alleged car sale agreement between the parties. The claimant produced the car sale agreement dated 8/3/2025 in support of the claim. Notably, the same was executed by both parties. Further, the respondent did not denounce the agreement. The sam provided that the respondent would sell to the claimant a vehicle (Mercedes Benze C0.20 Black) for Kshs. 1,300,957/=. It also refiected that the claimant had paid Kshs. 737,504/= and there was a balance of Kshs. 563,453/=. The respondent was to deliver the vehicle by 30/5/2025 or refund the cash on the same day, however, the claimant pleaded that delivery was not done thus the filing of the claim. There was also documentary proof of the payments made to the respondent. 9. Though the respondent claimed that the same was an illegal contract as the vehicle was to be imported under the DDE contract, there was nothing to support such allegation. The agreement did not make any such provision, and the respondent did not produce any evidence such as correspondence between the parties or documents supporting import under such program for the specified vehicle. Having failed to proof the allegation of illegality, the defense could not succeed. 10. In Palace Investment Ltd v Geofirey Kariuki Mwenda & Another [2015] eKLR, the Court of Appeal stated that a party bearing the burden of proof must adduce evidence of such quality that the court can conclude that the claim is more likely than not to be true. As such, the burden of proof in civil matters remains with the party asserting the claim, and where the evidence is evenly balanced or insuficient, the party bearing that burden fails. It was upon the respondent to proof that the contract was illegal as alleged. From the record, the burden of proof was not discharged and the same remained a mere allegation. 11. Consequently, in absence of delivery, I do find that the sums paid to the respondent in connection to the transaction were recoverable. 12. In the end, I do find that the claimant has proven the claim to the required standard thus the claim is merited. To that end, I hereby order as follows: - 13. 1. Judgment is hereby entered in favour of the claimant as against the respondent for the sum of Kshs. 737,504.00/= plus interest at court rate from the date of judgment till payment in full. 2. The claimant is also awarded costs of Kshs. 40,000/=. 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/2026/63/eng@2026-07-03 2
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