Mugo v Nditu (Commercial Case E295 of 2026) [2026] SCC 135 (KLR) (26 June 2026) (Judgment)

 REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA SMALL CLAIMS COURT CASE NUMBER: SCCCOMM/E295/2026 DAVID CHEGE MUGO VS JOHN NDITU JUDGMENT The facts in this matter are largely uncontested. The Respondent received Kshs. 282,500/- from the Claimant through his sister for the purposes of overseeing and securing a job for the Claimant on 25th March 2024 as per the Claimant’s filed affidavit and acknowledgement letter. Further, it is not disputed that the Respondent obtained for the Claimant a job offer as a machine line operator and work permit that was valid from 16th June 2024 to 16th December 2025. Thereafter, the Respondent told the Claimant to apply for a Visa from the Polish Embassy. The Respondent connected the Claimant to a cyber operator near the Polish Embassy to assist him in the visa application process. The Claimant eventually, failed to secure the visa as the Embassy communicated that the documents submitted had expired. It is the Claimant’s contention that the Respondent did not complete the job as he was to also apply for the visa on his behalf. The Respondent on his part states that he delivered fully on his part. He states that the amount paid by the Claimant was only to facilitate him to get a job in Poland which was fully executed and fulfilled. Further, that the Visa was not cancelled due to non-payment but due to reasons best known by the Poland Embassy, as all the forms and all the Visa application documents were delivered to the Claimant's sister, Leah Nyaguthi Gitau, for onward transmission to the Claimant for Visa application. The cyber at Gigiri, Nairobi near the Poland Embassy did its work and prepared all the required documents and after being signed by the Claimant, were all filled and uploaded to the Poland Embassy website for verification and action by the Embassy. From the evidence on record and the oral testimony of the witnesses herein, this court find that the sole issue for determination is what had the parties agreed to. In answering this question, the court has considered the sworn Affidavit of the Respondent together with the acknowledgment letter both dated 25th March 2024 where in the money received by the Respondent was for purposes of securing employment for the Claimant. Additionally, the Claimant in his evidence in court stated that after the Easter Holiday, the Respondent sent him some documents, work permit, letter of accommodation and what remained was for him to process his visa. The Respondent however told the Claimant to apply for the Visa on his own. The Claimant informed his sister of this turn of events, the Claimant’s sister then talked to the Respondent who later agreed to process the visa for the Claimant. On cross examination, the Claimant stated that he never applied for a visa and that he reached out to his sister when the process started using Polish language and told her to tell the Respondent to process the visa. Thereafter, the Respondent connected the Claimant to a cyber near the Polish embassy to assist in the process. As per the Respondent and corroborated by the filed emails, the notifications from the embassy would go directly to the Claimant’s emails. He himself admitted that he would get email notifications weekly. He further stated that he helped the Claimant out of good will to process the visa application by connecting him to the cyber attendant near the Polish Embassy in Gigiri. In ***Caleb Onyango Adongo v Bernard Ouma Ogur [2020] KEHC 5305 (KLR)*** the court while relying on the Court of Appeal decision in ***William Muthee Muthami vs. Bank of Baroda (2014) eKLR*** observed that: - *“…In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the party in breach.”* In the instant case, from the evidence on record, it was not an agreed term that the Respondent would apply for a visa on behalf of the Claimant. The Claimant has failed to prove this fact on a balance of probabilities as the evidence shows that the visa application required further action on his part which he did not do on time. Additionally, any assistance the Respondent offered after securing the job offer was done out of goodwill. The court notes that the emails filed contain contact details which the Claimant could have used to assist him in following up on his visa application. The Respondent completed a recruitment service where the visa stage remained the Claimant’s responsibility. In the end therefore, this court finds that the Claimant has not proved its case on a balance of probabilities and the claim is dismissed with no orders as to costs. **DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……26TH …. DAY** **OF………JUNE… 2026** **HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR** In the presence of; ……N/A… for Claimant; ……N/A…… for Respondent C/A Esther SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. THERESA N. MWANGEKA** Mombasa Small Claims Court Small Claims Court Date: 2026-06-26 08:51:21