https://new.kenyalaw.org/akn/ke/judgment/scc/2026/221

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT NAIROBI** **MILIMANI LAW COURTS** **SCCOMM NO. E106997 OF 2025** **EVANS NYANGAU MAKORI SUING AS ADMINISTRATOR LEGAL REPRESENTATIVE OF** **CLINTON SIKWEYA NYANGAU DECEASED............................CLAIMANT** **VERSUS** **ERIC OERI…...……………...…...…………....……….…….....RESPONDENT** **JUDGMENT** 1. The claimant instituted this claim vide the statement of claim dated 13/11/2025 seeking judgment against the respondent for the sum of Kshs. 116,750/= on the basis that in November 2024, he engaged the respondent to assist his son secure employment and travel documentation for Dubai. He averred that he paid a total of Kshs. 148,600/= to the respondent but the promised travel did not materialize and following the demise of his son in May 2025, the respondent agreed to refund the money. The claimant stated that the respondent only refunded Kshs. 31,250/= thereby leaving an outstanding balance of Kshs. 116,750/= thus the filing of the claim. 2. The respondent filed the response dated 19/12/2025 and denied having received Kshs. 148,600/= from the claimant or the deceased. That he only received Kshs. 44,000/= which was intended to facilitate medical examinations, certificate of good conduct authentication and embassy attestation. He stated that the balance of the funds required for the travel process was paid directly to Diplink Company Limited for purposes of visa processing and airline ticket arrangements. He further contended that after deducting expenses incurred in processing the travel documents, he refunded the unutilized balance of Kshs. 31,250/= to the claimant and therefore owed no further sums. 3. The claim proceeded under **Section 30 of the Small Claims Act** and the claimant filed submissions dated 13/4/2026 whereas the respondent’s were dated 13/3/2026. 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. 4. 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 alleges must prove as provided for in ***Section 107 and 108 of the Evidence Act.*** 5. I have considered the court record. Though the claimant alleged that he paid Kshs. 148,600/= to the respondent, there was no evidence to demonstrate that the said amount was paid directly to the respondent. While the claimant produced MPESA statements and other documents, there was no evidence showing that Kshs. 148,600/= was sent to the respondent directly. 6. On the other hand, the respondent’s evidence remained consistent that he received only Kshs. 44,000/=. Indeed, the MPESA statement produced showed a transfer of Kshs. 44,000/= to the respondent on 26/11/2024. 7. Moreover, the respondent produced documentary evidence showing that the deceased’s travel arrangements had substantially progressed. There was on record copies of medical reports, passport particulars and an employment visa issued in the name of the deceased. These documents corroborated the respondent’s averments that steps had indeed been taken towards facilitating the deceased’s travel. 8. I have also seen the letter from the respondent’s advocate dated 18/9/2025 in which it was stated that of the total amount paid towards the travel process being Kshs. 100,000/= had been deposited with Diplink Limited for visa and ticket processing while Kshs. 44,000/= had been received by the respondent. The same correspondence provided a breakdown of expenditures incurred and acknowledged that Kshs. 31,250/= remained available and refundable. Further, there was the letter dated 30/9/2025 confirming that the sum of Kshs. 31,250/= had been refunded to the claimant. The refund was supported by the MPESA records produced before the Court. The respondent’s averments were therefore sufficiently proven. 9. On the other hand, the claimant did not produce evidence demonstrating that the respondent personally received the additional Kshs. 104,600/= necessary to make up the claimed sum of Kshs. 148,600/=. 10. From the foregoing, it appears that the unfortunate failure of the deceased to travel was not attributable to any breach on the part of the respondent noting that the evidence showed that the travel documentation had largely been processed and that the deceased had obtained a visa prior to his demise. 11. In the end, I am not satisfied that the claimant sufficiently proved that the respondent received Kshs. 148,600/= or that the respondent remained indebted to him in the sum of Kshs. 116,750/=. 12. Accordingly, the claimant failed to prove his claim on a balance of probabilities. 13. The upshot is that the claim is hereby dismissed. 14. Given the unfortunate circumstances surrounding the demise of the deceased and the relationship between the parties, each party shall bear their own costs. **It is so decreed.** **DATED** and **DELIVERED** via **CTS** at **NAIROBI** this 14TH Day of August 2026 **** **HON. GLADYS. W. KIAMAH** **RESIDENT MAGISTRATE/ADJUDICATOR**