Mwangi v Lesma Travels Ltd (Commercial Case E6702 of 2026) [2026] SCC 216 (KLR) (14 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT NAIROBI** **SCCOMM NO. E6702 OF 2026** **JACKSON MWANGI………….………...............…...……….CLAIMANT** **VERSUS** **LESMA TRAVELS LTD…………….……………………….RESPONDENT** **JUDGMENT** 1. The claimant instituted this claim vide the statement of claim dated 24/6/2026 seeking judgment against the respondent for Kshs. 200,000/= plus costs and interests. It was the claimant’s case that on 10/1/2025, he engaged the respondent to process a Canadian Work Permit and paid a deposit of Kshs. 200,000/= towards the agreed consideration leaving a balance of Kshs 100,000/= which was payable upon completion. That the respondent failed to provide the agreed services and subsequently undertook to refund the amount paid but failed to do so despite repeated follow-ups and a formal demand. 2. There was no response on record despite that the respondents were given opportunities to file their responses, statements and documents. The respondents failed to comply thus the claimant’s averments remained uncontested. 3. The matter proceeded under ***Section 30 of the SCC Act*** and the claimant filed submissions dated 10/8/2026. I have considered those submissions alongside the pleadings and evidence before court. The main issue for determination is whether the claimant has proven the claim on a balance of probabilities. 4. The Court of Appeal in **Mumbi M'Nabea v David M.Wachira [2016] eKLR** while discussing the standard of proof in civil liability claims in our jurisdiction had this to say: - ***“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not.”*** 1. ***Sections 107, 108 and 109 of the Evidence Act, Chapter 80 of the Laws of Kenya*** places the burden of proof of a fact on the person who wishes the court to believe in the existence of such fact. As such, the burden of proof lies on the party alleging a fact of which correlative rule is that he who asserts a matter or a fact must prove but he who denies it need not prove it. The party on whom lies the burden must adduce evidence of the disputed facts or failing his contention. Simply put, he who alleges must prove. See **Daniel Muthuka Ngui v Bernard Nganda Mutua & another [2019] eKLR.** 2. Notably, the fact that the respondent failed to enter appearance or file a defence does not automatically entitle the claimant to judgment. The legal burden of proof remains throughout on the Claimant pursuant to ***Sections 107 and 109 of the Evidence Act.***Even in undefended proceedings, the claimant must adduce sufficient evidence to prove the claim on a balance of probabilities. A default judgment is not a substitute for proof of a claim, particularly where the relief sought is unliquidated or requires evidentiary substantiation 3. In **Mweni v Kagai & another (Civil Appeal 17 of 2021) [2022] KEHC 17264 (KLR),** the High Court reiterated that a plaintiff must prove his case on a balance of probabilities and is not entitled to judgment merely because the defence has not controverted the evidence. See also **Karugi & Another v Kabiya & 3 Others [1987] KLR 347,** where the court held that the burden of proof remains with the plaintiff and is not lessened merely because the case is undefended. 4. In the case before me, there was on record the agreement dated 10/1/2025 which established the contractual relationship between the parties.There was also proof of payment of Kshs. 200,000/= to the respondent who in turn issued a receipt acknowledging receipt of the funds. The respondent also issued and signed a refund form confirming that the agreed services were not rendered and a refund was due. Notably, under the section marked “Official Use Only” the respondent indicated that Kshs 120,000/= had been refunded. However, no documentary evidence of such refund, such as bank transfer records, receipts or acknowledgements, was produced. Having failed to enter appearance or participate in these proceedings, the Respondent did not tender any evidence to substantiate the alleged partial refund. 5. As such, I do find that the claimant proved, on a balance of probabilities, that he paid Kshs. 200,000/= to the respondent for services that were not rendered and that the respondent acknowledged its obligation to make a refund. The alleged refund of Kshs. 120,000/= remained unproven. Accordingly, I am satisfied that the claim was proved and that the sum claimed is due and payable. 6. To that end, I hereby order as follows: - 7. **Judgment is hereby entered in favor of the claimant as against the respondents jointly and severally for the sum of Kshs. 200,000/=.** 8. **The sum shall attract interest at court rates from the date of judgment till payment in full.** 9. **The claimant is awarded costs of the claim assessed at Kshs. 12,000/=.** 10. The respondent is granted 30 days stay of execution. **It is so decreed.** **DATED** and **DELIVERED** at **NAIROBI** this 14th Day of August 2026 **** **HON. GLADYS. W. KIAMAH** **RESIDENT MAGISTRATE/ADJUDICATOR**