https://new.kenyalaw.org/akn/ke/judgment/scc/2026/182

Kosgei v Kerich (Commercial Case E438 of 2026) [2026] SCC 182 (KLR) (14 July 2026) (Judgment) Neutral citation: [2026] SCC 182 (KLR) Republic of Kenya In the Small Claims Court at Eldoret Commercial Case E438 of 2026 ME Aligula, RM July 14, 2026 Between Shadrack Kosgei Claimant and Ditolas Kerich Respondent Judgment 1.Vide a Statement of Claim dated 23rd March, 2025, the Claimant averred that he gave the respondent ksh 350,000/- with the commitment that the respondent’s agency will facilitate work placement abroad for him, the same was not done. 2.The Claimant further averred that he demanded for the money back and the respondent only paid him Ksh 100,000/- leaving a balance of ksh 250,000/- and consequently moved court and prays for judgment in the sum of ksh 250,000 plus costs and interest. 3.The Respondent denied the contents of the Statement of Claim vide the response dated 7th May 2, 2026 and averred that he only owed the claimant a portion of an amount being ksh 60,000/-. He contended that he is employed by Novice Global Consultancy Limited in the capacity of an accountant and denied that the company was engaged to facilitate the claimant’s employment abroad and avers that its role was limited solely to assist the claimant in obtaining a travel invitation to Canada and it duly performed its obligation but the claimant's application was declined. He maintained that the company remined willing to proceed with a reapplication in accordance with the policy but the claimant was impatient and instead demanded for a refund and upon consultation it was agreed that the company would reimburse the claimant less the funds already expended towards medical examination, biometrics and other related disbursements. That further a memorandum of understanding dated 24th December, 2025 was entered into and the claimant was to be refunded ksh 160,000/-, he acknowledged receipt of ksh 100,000/- and the balance of ksh 60,000/- was to be settled on or before 31st January, 2026. 4.The matter proceeded to hearing with each party testifying. CW1, the Claimant, adopted his statement dated 16th March, 2026 statement, and produced documents; bank statement dated 11/11/2025 C exhibit 1, Mpesa messages dated 24/12/2025 C exh 2, Message screenshot C exh 3, memorandum of understanding dated 24/12/2025 C exhibit 4 and documents from equity bank as C exhibit 5. He further testified that he had a debt at equity bank for ksh 100,000/- and because of the situation he accepted the money given. 5.On cross examination, CW1 confirmed that the signature on the MOU was his and the same stated that the amount to be paid was ksh 160,000/-. Further, CW1, confirmed that their agreement did not a clause that if the respondent defaults the claimant would go back for the initial amount paid. It was his testimony that he went for the biometric only and not medical tests and the application was declined, He further stated that he dealt with the respondent and not the agency. 6.RW1, the Respondent, likewise adopted his statement dated 7th May, 2025. he produced documents on his list of documents as R exhibit 1-5. It was his evidence that the claimant never mentioned anything to do with the loan at Equity bank. That the claimant agreed and was paid ksh 100,000 and the balance is ksh 60,000/-. On cross examination, he stated that he is an accountant in a consultancy though he did not have anything to show that he works with the company. He confirmed that the claimant made the payment of ksh 350,000/- to him directly not to the company. He went on and stated that the director of the company was to get an invitation for him to go to Canada but was declined, and that is what he had paid for. That the claimant never made requested the company to do a reapplication as its only done at the client’s request. That client’s monies were being used to pay office expenses. He further informed court that he is the one who sent to the clamant the ksh. 100,000/-and that he was yet to made an additional payment. 7.In re examination, he testified that the company director is in Canada there is a company account but they use the client's money paid to run office errands and that is way money was being sent either the him or the office manager directly. 8.Both parties closed their respective cases. At the time of writing this judgment only the claimant had complied with court’s directions of filing submissions within 3 days which the court has considered. The issue for determination is singular; whether the claimant is entitled to a refund of ksh 250,000/-? 9.As evidenced by the documents filed and the testimonies of parties it is not disputed that the claimant made a payment of ksh 350,000/-, this is supported by the KCB account statement produced by the claimant. The claimant alleges that the respondent failed to meet his obligation and was to refund the said sum whereas the respondent alleges that the claimant was entitled to ksh 160.000/- as evidenced by the MOU he signed. This Court has not had the privilege of seeing any agreement between parties herein on what was to be done with the ksh 350,000/- despite the respondent having filed Novice global consultancy service engagement it is not executed by parties herein, the claimant also seems not to be aware of the agency terms, and as such, it is the claimant’s word against the respondent on what was supposed to be done. I thus cannot confirm how much was to be used for biometric and or medical in as much as the respondent says the ksh 160,000/- was less the disbursement done, which has not been filed in this court. 10.Equally the claimant stated that he only went for biometric and not medical examination, i will presume the exercise entailed some money which this court cannot confirm when no proof has been furnished. He who alleges must proof, the burden shifted to the respondent to show this court how the money was utilized, further, a look at the MOU the terms therein stated that the respondent was holding in custody ksh 160,000/- that was meant for travel to Canada, there is no any clause about the disbursements and I have reasons on balance of probability to believe that unless there was proof of how ksh 190,000/- (ksh 350,000/- paid by the claimant less what was captured in the Mou ksh 160,000/- ) the said amount was for traveling only and the claimant is owed the balance. 11.Both parties confirmed that there was an MOU which was signed, it is only ksh 160,000/- which is admitted to be held by the respondent for traveling expenses and the claimant accepted the terms of the MOU and executed as is and acknowledged receipt of ksh 100,000/- and ksh 60,000/- was to be paid later as captured. Whether he had a loan with equity bank is a none issue herein. 12.In light of the foregoing, this court finds that on a balance of probability the claimant has proved its case and makes the following orders:a.Judgment is hereby entered in favour of the claimant as against the respondent for a sum of ksh 250,000/-b.Costs of the suit are awarded to the Claimantc.Interest shall accrue on the decretal sum at court rates from the date of judgment until payment in full.Stay of 30 days granted. JUDGMENT DATED, AND DELIVERED AT ELDORET THIS 24TH DAY OF JULY,2026.M. E. ALIGULA- RMIn the presence of C/A Mr. LepatoiyeMs. Terer for the respondentN/A for the Claimant