Makasoma v Dondi & another (Commercial Case E4168 of 2026) [2026] SCC 192 (KLR)

2. The respondent filed the response dated 21/4/2026 and admitted entering into the contract for fabrication at Kshs. 910,000/= out of which Kshs. 810,000/= was paid leaving a balance of Kshs. 100,000/=. They denied breaching the contract and maintained that they fabricated and delivered the contracted items in phases, which the claimant collected and installed. That only the balcony grills remained uncollected despite being ready for collection and that the claimant had failed to pay the outstanding balance. They further averred that they incurred storage costs as a result of the claimant’s failure to collect the balcony grills and, by way counterclaim, sought payment of the outstanding of Kshs. 100,000/= together with storage charges and costs. 3. The claimant filed a response dated 11/5/2025 maintaining its case and denied the counterclaim. That Kshs. 100,000/= was only payable upon completion of work by the respondent. 4. The claim proceeded under Section 30 of the Small Claims Act and the claimant filed submissions dated 1/6/2026, whereas the respondent’s were not on record. I have considered those submissions alongside the pleadings and documents on record. The main issue for determination is whether the claimant has proven the claim as against the respondent. 5. The standard of proof in civil matters is on a balance of probabilities. See the court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR. It is also trite that he who 2|Page JUDGMENT SCCE4168 OF 2026

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alleges must prove as provided for in Section 107 and 108 of the Evidence Act. 6. It was not disputed that the parties entered into a contract for a consideration of Kshs. 910,000/= out of which the claimant paid Kshs. 810,000/=. 7. Though the claimant claimed the full Kshs. 810,000/= on the basis that the work was not done, the respondents produced delivery notes demonstrating that a substantial portion of the fabricated items was delivered and received by the claimant. The claimant did not deny or challenge those delivery notes. There was also evidence of the demand made by the respondents for the balance upon completion. In the circumstances, the claimant’s prayer for a refund of the Kshs. 810,000/= was not sustainable. 8. Further, both parties relied on documents acknowledging an outstanding balance of Kshs. 100,000/=. Notably, both parties agreed that the same was payable upon completion of the work. From the WhatsApp correspondence produced by the claimant, the only issue raised by the claimant related to the replacement of a window. There were no complaints of incomplete works, nor was there any dispute raised regarding the outstanding balance which the respondents consistently demanded. As such, I find that the balance of Kshs. 100,000/= was payable. 9. As regards the claim for storage fees as pleaded in the counterclaim, the respondents produced a demand letter dated 3|Page JUDGMENT SCCE4168 OF 2026

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23/4/2025 notifying the claimant that certain items remained in their possession and attracted storage charges at the rate of Kshs. 200/= per day. The letter also demanded payment of the outstanding contract balance and requested collection of the items. While I accept respondents did not that a demand produce was made, sufficient evidence the to demonstrate the nature and quantity of the goods allegedly retained, their completion, or the contractual basis upon which storage charges were levied. 10. No records, invoices, receipts, or other evidence were tendered to substantiate the storage charges claimed. Consequently, although the demand letter lends support to the respondents’ assertion that collection was sought, the claim for storage charges remains unproved and is declined. However, I am satisfied that the sum of Kshs. 100,000/= was proven. 11. Accordingly, I find that whilst the claim was unmerited, the counter-claim was partly merited. To that end, I hereby order as follows: 1. The claim is unmerited and hereby dismissed. 2. Judgment is entered in favor of the respondent as against the claimant for the sum of Kshs. 100,000/=. 4|Page JUDGMENT SCCE4168 OF 2026

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3. The sum shall attract interest at court rate from the date of judgment till payment in full. 4. The respondent is awarded costs of the suit assessed at Kshs. 10,000/=. 12. The respondent is awarded 30 days stay of execution. It is so decreed. DATED and DELIVERED via CTS at NAIROBI this 7TH Day of August 2026 HON. GLADYS. W. KIAMAH RESIDENT MAGISTRATE/ADJUDICATOR 5|Page JUDGMENT SCCE4168 OF 2026

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