Zenka Digital Ltd v Tuikeny (Commercial Case E97193 of 2025) [2025] SCC 50 (KLR)
The bottom line
#A Kenyan court threw out a lender's Kshs 95,700 mobile-loan claim because screenshots and an agreement alone could not prove the loan was actually disbursed.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof in formal proof/undefended claims
The claimant must still prove the claim on a balance of probabilities notwithstanding the absence of the respondent
Relying on section 107(1) of the Evidence Act and the Court of Appeal's decision in Daniel Toroitich arap Moi v Mwangi Stephen Muriithi, the court held that formal proof requires the claimant to lay evidence before the court, which the court must examine; if it falls short, the claim must be dismissed regardless of the absence of rebuttal.
Proof of disbursement of the loan
The Mpesa screenshot did not prove the Claimant disbursed the loan since the sender's identity was undisclosed and no Mpesa statement was produced
The screenshot did not disclose who sent the money to the Respondent's number; the Claimant's own Mpesa statement for the period would have advanced its case. Without these, there was no evidence the Claimant disbursed the loan.
Necessity of a loan statement/account
Only a statement of account/loan statement could prove the borrowing, default and extent of indebtedness under clause 9.5 of the loan agreement
Clause 9.5 of the loan agreement made the customer's loan statement conclusive evidence of transactions on the account. The Claimant did not produce any statement of account, so the court could not determine whether the Respondent defaulted or the extent of indebtedness.
Admissibility of electronic evidence
The Mpesa extract did not meet the admissibility test under section 106B of the Evidence Act, which requires a certificate
Drawing on County Assembly of Kisumu v Kisumu County Assembly Service Board, the court held the section 106B certificate requirement is mandatory. Although section 32(2) of the Small Claims Court Act permits admission of otherwise inadmissible credible material, judicial notice of the risk of manipulation of electronic evidence means such evidence, especially where a party is represented, must satisfy section 106B.
Legal principles established
#- Even in an undefended claim, the claimant remains duty-bound to prove the case to the required standard
- Failure to respond to a demand letter is not an admission of indebtedness and does not shift the burden of proof
- Electronic evidence before the Small Claims Court, at least where a party is represented, must be adduced per section 106B of the Evidence Act to pass the credibility and trustworthiness test
Court orders
#- 1.The claim is struck out with no order as to costs
- 2.File closed
- Jurisdiction invoked
- Small Claims Court Act (claim determined under section 30, Small Claims Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zenka Digital Ltd v Tuikeny (Commercial Case E97193 of 2025) [2025] SCC 50 (KLR)", Case Analysis (2025). Not stated in judgment (Small Claims Court claim, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2025/50/eng@2025-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.