Hussein v Duba (Commercial Case E1380 of 2025) [2026] SCC 95 (KLR) (4 May 2026) (Judgment) Neutral citation: [2026] SCC 95 (KLR) REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT MOMBASA COMMERCIAL CASE E1380 OF 2025 TN MWANGEKA, RM MAY 4, 2026 BETWEEN HUSSEIN ..................................................................................................... CLAIMANT AND MOHAMMED DUBA .......................................................................... RESPONDENT JUDGMENT 1. This judgment relates to a Statement of Claim dated 1st December 2025 seeking various reliefs as reproduced hereunder; a. Refund of Ksh. 200,000 money b. Damage of Ksh. 800,000 for breach of contract and loss c. Cost of this suit of Ksh. 200,000 money had and received of Ksh. 800,000 for breach of contract and loss occurred on purchase of land on purchase of land. d. Interest at court rates from date of filing until full payment at court rates from date of filing until full payment. 2. From the facts, the subject matter herein relates to money held and received by the respective parties subject to a contract for the sale of land and its consequent breach for reasons as pleaded by the parties. Section 12 of the Small Claims Court Act defines the nature of claims and jurisdiction of the Court to be (a) contract for sale and supply of goods or services; (b) a contract relating to money held and received; (c) liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property; (d) compensation for personal injuries; and (e) set-ofi and counterclaim under any contract. 3. Section 13 (5) of the Act goes further to exclude all claims founded upon defamation, libel, slander, malicious prosecution or is upon a dispute over a title to or possession of land, or employment and labour relations. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/95/eng@2026-05-04 1
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4. The court has considered the pleadings as well as the submissions filed and finds that it is important to restate what the facts herein relate to in brief. The facts are as follows; the parties herein entered into an agreement for the purchase of a house located at Khadija Estate owned by the Claimant. The Respondent paid Kshs. 200,000/- which has not been disputed by either side. The agreement however did not materialize. This is where the dispute starts. The Claimant alleges that the Respondent swore a false afidavit intending to disposes him of his property stating that he was the Claimant’s brother –in law and that he was the one to transfer the tenancy ownership to himself. That it is after the Claimant questioned him, that the Respondent became furious and demanded to be refunded his money. 5. On the other hand, the Respondent states that the Claimant breached the contract by failing to disclose that the house was occupied by another tenant causing the former to rescind the contract and demand refund of deposit paid. He therefore counterclaims against the Claimant Kshs. 205,000/-. 6. A look at the evidence on record clearly shows that the Claimant at the time of entering the agreement with the Respondent failed to disclose that there was another tenant living in the said house. In fact, in the acknowledgement of Kshs. 200,000/- filed, the Claimant states that he is the one occupying the house. 7. The Respondent on his part has filed an afidavit, though not signed by him stating that he was the Claimant’s brother–in law and that he was the one to transfer the tenancy ownership to himself an act which caused alarm for the Claimant. The Respondent has also filed an unexecuted good will agreement which does not help his cause. It is trite law that unsigned contracts and agreements are not legally binding. This means that parties may not be able to enforce the terms and conditions stated in the contract. This also is an indication that there was no agreement between the parties. The document relied on herein is blank hence it is as good as the plain paper on which it was made. I rely on the decision in High Court Civil Appeal No. 098 of 2023 Mercy Waithaka v Timothy Njuguna Wanyoike. 8. What then is left as evidence of the parties’ agreement, is the handwritten acknowledgment of Kshs. 200,000/- signed by both parties and witnessed, in which the Claimant states that he is the one living in the house and not a third party at the time of the acknowledgment. The Claimant therefore materially misrepresented the facts and the Respondent is not wrong to rescind the agreement. However, the Respondent is also not innocent. As noted, the afidavit filed by the Respondent shows that the Respondent had an intention of fraudulently dispossessing the Claimant of the house before fully settling the purchase price. 9. From the conduct of the parties, both acted in a manner that would ordinarily result in a breach of contract. The Claimant concealed a material fact and the Respondent harbored fraudulent intentions of dispossessing the Claimant of his house before completing payment of the purchase price. 10. This court cannot allow parties to benefit from their own wrongdoings as both parties are using the court to further a dishonest dispute. In essence, the Claimant seeks to force the Respondent’s hand to pay the full purchase price despite his material concealment of facts while the Respondent seeks to have the court sanitize his fraudulent intentions. To this court’s mind, the claim and counterclaim herein constitute an abuse of the court process as the same are founded on improper and unethical conduct exhibited by both sides. 11. The instances that give rise to an abuse of court process are inexhaustible. Abuse of court process has been defined by the courts in Chunky Limited v Director of Criminal Investigations (Petition E004 of 2022) [2022] KEHC 297 as as everything, which is contrary to good order established by usage that is a complete departure from reasonable use. An abuse is done when one makes an excessive or improper use of a thing or to employ such thing in a manner contrary to the natural legal rules for its use. It https://new.kenyalaw.org/akn/ke/judgment/scc/2026/95/eng@2026-05-04 2
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involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. 12. Consequently, since the court has inherent jurisdiction to protect itself from abuse of process, the claim herein together with the counter claim are dismissed. Parties to bear their own costs. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE………4TH….DAY OF………MAY… 2026 HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR In the presence of; ……N/A….for Claimant; …Ms. Wambani… for Respondent C/A Sabina SIGNED BY/FOR: THE JUDICIARY OF KENYA HON. THERESA N. MWANGEKA MOMBASA SMALL CLAIMS COURT SMALL CLAIMS COURT DATE: 2026-05-04 10:13:59 https://new.kenyalaw.org/akn/ke/judgment/scc/2026/95/eng@2026-05-04 3
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