Shiret v Mureithi & another (Commercial Case E696 of 2025) [2026] SCC 187 (KLR)

repaid back. Between 5th July 2022 and 16th August 2022 was offered a total of ksh 120,000/- with an interest of 12,000/- which was also repaid. 4. Further on 29th August 2022, the claimant claimed she had applied for a loan elsewhere in joint names of the claimant, Lydia and the 1st respondent worth ksh 75,000/- the Claimant repaid ksh 6,000/- Lydia ksh 12,000/- and the balance of ksh 57,000/- was hipped on the 1st respondent and she sought the 2nd respondent's assistance. That the 2nd respondent has been wrongfully sued in this matter. The respondents averred that they paid the claimant an excess amount of ksh 93,800.60/-, and sought for ksh 26, 200/- being damages for wrongfully suing the 2nd respondent. 5. Parties took directions on 6th July 2026 to dispose the matter under section 30 of the Small Claims Court Act. As such, parties are hereby bound by their documents. The issues for determination are: a. whether the Claimant has proved her claim b. Whether the respondents have proved their counter claim c. Who is to shoulder costs herein? 6. The burden of proof rests upon the Claimant to establish that she advanced 298,500/to the Respondents. The claimant filed copies of loan sheet detailing sums loan out and sum repaid. The first document is a list of members allegedly belonging to “Through thick and thin self-help group” with their ID numbers captured, the same is not signed by either of the members. The 2nd respondent is not listed thereon. I have also seen record sheet for 21st November, 2021, and 10th September, 2022, its indicated thereon that loan given to the 1st respondent is ksh 20,420/-, at the bottom loan given out to the 1st respondent is ksh 72,570/- and ksh 4,300/- and at the bottom ksh 43,700/- respectively. In these documents the 1st respondent did not sign but was signed by the secretary Lydia Jepchirchir and approved by one loan committee member, the claimant herein. There is further a handwritten note of loan repayment taken for the 1st respondent on November 2021, the same shows some amount paid. 7. I have also looked at the mpesa statement produced, the one between the period of 1st September, 2022 to 31st March, 2023 about ksh 45,500/- was paid in from Equity bank account and ksh 11,000/- was also received from the 2nd respondent. It is

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noteworthy that the funds were allegedly remitted to the claimant and not to the group's Treasurer or any other official ordinarily entrusted with the custody of the group's finances. No evidence was led to justify this departure from the expected procedure. Further, the Claimant did not establish the nexus between herself, the respondents and the self-help group. No evidence has been adduced to demonstrate the capacity in which the claimant acted or the authority she possessed to receive funds intended for the group. In the absence of such evidence, the Court is unable to conclude that payment to claimant’s amounted to payment to or on behalf of the selfhelp group. There is further no evidence showing any direct transaction from the claimant to the respondents herein. Even if the Claimant's case is that the amount was advanced in instalments, the documents produced do not account for or reconcile the various entries to arrive at the claimed total of Kshs. 298,500/-. Consequently, the Court is unable to ascertain from the evidence how the claimed sum was computed or advanced. He who alleges must proof. 8. The respondents raised a counter claim and i note that the same was not responded to by the claimant. I Have looked at the filed mpesa statement by the 1st respondent for the period running between 1st January 2021 to 31st December, 2024. The said statement shows money paid in by the claimant and what was paid out to the claimant. The total amount paid in from Zipporah Shiret is ksh 54,480/- Amount sent to the claimant is ksh 209,684/-. It is my conclusion that the claimant received ksh 155, 204/- more than she had advanced as per that statement. The claimant failed to explain the same. The Court has also examined the Rafiki Microfinance Bank statement. However, it is unable to determine from the statement whether any of the transactions represent payments made by the Respondents to the Claimant. The statement does not clearly identify the parties to the transactions, and in the absence of explanatory evidence, it cannot be relied upon to establish the alleged disbursement of the loan. 9. The evidence on record suggests that there were reciprocal financial transactions between the Claimant and the Respondents, making it unclear whether the payments related to the alleged loan or constituted separate advances between the parties. The mpesa statement by the 1st respondent reflects transactions between herself and the

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Claimant in both directions, thereby obscuring the true nature of the parties' financial relationship. 10. The Claimant's case is not entirely clear as to the capacity in which she advanced the alleged loan. If the sum claimed constituted a loan issued by the self-help group, it is not apparent why the proceedings were instituted by the Claimant in his personal capacity rather than by the group or its duly authorised officials. No evidence was adduced to demonstrate that the Claimant had the requisite authority to recover the alleged debt on behalf of the group this is based on the documents filed by the claimant in support of its case. 11. Conversely, if the Claimant's case is that the loan was advanced by her personally, then the evidential burden rested upon her to prove the disbursement of the funds to the Respondents. However, the evidence tendered does not satisfactorily demonstrate how or when the alleged sum was transmitted to the Respondents. This inconsistency as to the nature of the alleged loan and the capacity in which the Claimant seeks to recover it creates a significant evidential gap, which has not been resolved by the evidence on record. While the documentary evidence discloses some nexus between the Claimant and the 1st Respondent, no such nexus has been established in respect of the 2nd Respondent. There is no evidence of a contractual relationship or privity of contract between the Claimant and the 2nd Respondent upon which liability can be founded. 12. There is a counter claim for ksh 120,000.60/- being an excess amount sent of ksh 93,800.60/- and damages against the 2nd respondent for ksh 26,200/- Parties are bound by their pleadings. With regard to the claim for damages of Kshs. 26,200/- the respondents neither explained the basis upon which that figure was computed nor adduced evidence demonstrating the loss or prejudice allegedly suffered by the 2nd respondent. In the absence of such proof, that limb of the counterclaim cannot succeed. However, the evidence on record establishes, on a balance of probabilities, that the 1st respondent remitted Kshs. 93,800.60/- in excess of the amount received by the claimant. Consequently, the counterclaim succeeds only to that extent. As the claimant has failed to prove its claim on a balance of probabilities, the claim is dismissed. Judgment is accordingly entered for the respondents on the counter-claim

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in the sum of Kshs. 93,800.60/- together with costs of 15,000/- and interest at court rates from the date of filing the counterclaim until payment in full. Stay of 30 days is granted. Judgement signed and delivered at Eldoret this 31st day of 2026 M.E Aligula RM In the presence of: C/A Mr. Lepatoiye Claimant: Mr. Collins Kigen Respondent: Ms. Otuma

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