https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9991

Skyblue Travel Bureau Ltd v Kariuki & another (Civil Appeal E013 of 2025) [2026] KEHC 9991 (KLR) (Civ) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 9991 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E013 of 2025 BW Murunga, J July 9, 2026 Between Skyblue Travel Bureau Ltd Appellant and Brian Kamau Kariuki 1st Respondent Patricia Wangari Chege 2nd Respondent (Being an Appeal from the Judgment of the Small Claims Court at Milimani by Hon. Wamae E.M. Muindi delivered on the 21st November 2024 in Milimani SCCC COMM No. E8053 of 2024) Judgment 1.This is an appeal arising from the decision of the Small Claims Court at Milimani by Hon. Wamae E.M. Muindi (Resident Magistrate), delivered on the 21st day of November 2024. In the impugned judgment, the trial court found in favour of the Respondents (then Claimants) and ordered the Appellant (then Respondent) to make a full refund of Kshs. 680,425/=, being monies paid for the procurement of air tickets. Factual Background 2.The genesis of this dispute is largely uncontested. Sometime in March and May 2024, the Respondents, intending to travel to Spain via Amsterdam, engaged the services of the Appellant to secure return air tickets. A total sum of Kshs. 680,425/= was remitted to the Appellant for this purpose. It is a matter of record that the Respondents were subsequently denied transit visas for the Netherlands, a requirement for their travel through Schiphol Airport, Amsterdam. Consequently, the intended travel was aborted. 3.Following the cancellation of their travel plans, the Respondents demanded a full refund of the sums deposited. The Appellant declined to issue a full refund, contending that the refund was subject to its terms and conditions, which permitted the deduction of airline penalties, commissions and processing fees amounting to USD 300 (approximately Kshs. 39,000/=) and a further Kshs. 78,001/= in assorted penalties, leaving a refundable balance of Kshs. 524,424/=. 4.The trial court, after hearing the parties, concluded that the Appellant failed to adduce any documentary evidence to prove that actual tickets were purchased or that any funds were remitted to the airline. The court reasoned that in the absence of such proof, the Appellant was not entitled to deduct any processing fees or airline penalties, thereby awarding the Respondents a full refund. The Appeal 5.Aggrieved by the decision, the Appellant lodged the present appeal raising six grounds;i.The Learned Magistrate erred in law and fact by failing to consider that the Respondents were denied visas, which was the primary reason for their inability to travel, a matter entirely beyond the Appellant's control.ii.The Learned Magistrate erred in law and fact by ordering the Appellant to refund the full amount of Kshs. 680,425/= without acknowledging that the Appellant provided legitimate services, including processing and booking the tickets, for which deductions were lawfully and reasonably made.iii.The Learned Magistrate erred in law and in fact by finding that the tickets provided by the Appellant were not valid or confirmed, contrary to industry-standard practices where travel bookings are contingent upon the approval of visas and other travel documents.iv.The Learned Magistrate erred in failing to find that the Appellant is entitled to reasonable labor or service fees for processing the reservations and managing the Respondents’ travel arrangements, irrespective of whether the Respondents ultimately travelled.v.The Learned Magistrate erred in failing to find that the Respondents bore the responsibility to secure the necessary travel visas before their scheduled travel and that their failure to obtain the same was the primary cause of the failure of the travel arrangements.vi.The Learned Magistrate erred in law by assuming jurisdiction over a dispute touching on travel documentation, aviation regulations and air ticketing despite lacking jurisdiction. 6.Section 38 of the Small Claims Court Act expressly confers the right of appeal to the High Court against a decision or order of the Adjudicator on matters of law only.“(1)A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. (2) An appeal from any decision or order referred to in subsection (1) shall be final.” 7.As to what constitutes ‘matters of law’, the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR characterized the three elements of the phrase in the following terms:“…we would characterize the three elements of the phrase “matters of law” as follows:(a)the technical element: involving the interpretation of a constitutional or statutory provision;(b)the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record;(c)the evidentiary element: involving the evaluation of the conclusions of a trial Court on the basis of the evidence on record.” 8.This Court will therefore entertain the grounds of appeal only to the extent that they raise genuine questions of law within the meaning ascribed above. The question of jurisdiction, the allocation of the burden of proof, and whether the conclusions of the trial court find support in the evidence on record all fall squarely within that ambit. 9.The grounds of Appeal can therefore be broadly condensed into three main issues for determination by this Court:a.Whether the Small Claims Court lacked jurisdiction to entertain the dispute.b.Whether the Learned Trial Magistrate erred in law by improperly shifting the burden of proof to the Appellant regarding the purchase of the tickets.c.Whether the Appellant was entitled to deduct processing fees, commissions and airline penalties from the Respondents' refund. Analysis of the Issues Issue 1: Jurisdiction of the Small Claims Court 10.The Appellant has strenuously argued that the Small Claims Court lacked original jurisdiction to hear the matter, contending that the dispute falls within the exclusive purview of the National Civil Aviation Administrative Review Tribunal (NCAART) pursuant to Section 66 of the Civil Aviation Act. Counsel for the Appellant submitted that jurisdiction is everything, and proceedings conducted without it are a nullity, relying on the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1. 11.It is indeed a trite principle of law that a court cannot arrogate to itself jurisdiction it does not possess. As Nyarangi, JA stated in the Lillian S case:“Jurisdiction is everything. Without it, a court has no power to make one more step." 12.However, the nature of a dispute determines the forum. A careful perusal of the pleadings reveals that the Respondents' claim in the lower court was a straightforward consumer claim founded on a breach of contract for money had and received. The Respondents were seeking a refund of Kshs. 680,425/= following an aborted travel arrangement. 13.The dispute did not touch on technical aviation regulatory matters, licensing, or aeronautical personnel issues which are the preserve of the NCAART. The Small Claims Court Act vests the court with jurisdiction to determine civil claims relating to contracts for the sale and supply of goods or services where the pecuniary value does not exceed Kshs. 1,000,000/=. Specifically, Section 12 (1) of the Act provides :Subject to this Act, the Rules and any other law, the Court has jurisdiction to determine any civil claim relating to—a.a contract for sale and supply of goods or services;b.a contract relating to money held and received; 14.Therefore, I find that the Small Claims Court was properly clothed with the requisite jurisdiction to hear and determine the dispute. The Appellant's ground of appeal on jurisdiction fails. Issue 2: The Burden of Proof and the Purchase of Tickets 15.The Appellant faults the trial court for basing its judgment on the finding that no actual tickets were purchased. The Appellant argues that the Respondents' case was anchored on their inability to travel due to the lack of a visa, not on the non-issuance of tickets. By questioning the validity of the tickets, the Appellant contends, the trial magistrate improperly shifted the evidentiary burden of proof to the Appellant on an unpleaded issue. 16.This argument requires a nuanced application of the law of evidence. It is a fundamental rule of evidence that he who asserts must prove. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 17.The above provision provides for the legal burden of proof. However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 18.In Sagion Contractors Limited v Chege [2023] KEHC 21499 (KLR), the Court affirmatively stated the position of the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280 where it was held that:“Whereas under section 107 of the Evidence Act, (which deals with the legal evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.” 19.In the present case, the Respondents successfully discharged their initial legal burden by demonstrating and the Appellant conceding that they remitted Kshs. 680,425/= to the Appellant for air tickets and that the travel did not materialize. The evidential burden then shifted to the Appellant, who raised the affirmative defence of a 'set-off'. The Appellant claimed entitlement to deduct airline penalties and processing fees. To succeed in this defence, the Appellant bore the evidential burden to prove that it actually remitted the Respondents' funds to the airline and that the airline indeed levied the claimed penalties. 20.Section 112 of the Evidence Act fortifies this position. It provides that in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him. Whether the Respondents’ funds were in fact remitted to the airlines, and whether the airlines levied the penalties claimed, were facts peculiarly within the knowledge of the Appellant. It is the Appellant alone which could produce the remittance records, receipts or airline correspondence to establish them. 21.The standard of proof in civil cases is on a balance of probabilities. In African Line Transport Company & another v Sylvester Keitany [2017] eKLR the High Court adopting the dictum of Denning J in Miller v Minister of Pensions [1947] 2 All ER 372, held as follows:“That degree is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say, ‘we think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 22.In light of the foregoing, to justify its deductions, the Appellant was required to persuade the court that its averment of having incurred third-party airline penalties was more probable than not. 23.I have reviewed the Record of Appeal. The Appellant produced travel itineraries and reservation dockets only. There was a conspicuous absence of payment receipts, bank transfer or SWIFT copies, or any definitive correspondence from Qatar Airways or KLM confirming that the funds were received and subsequently forfeited or penalized. The trial magistrate did not arbitrarily shift the burden of proof; rather, she correctly identified that the Appellant had failed to discharge the evidential burden attached to its own defence of set-off. Issue 3: Entitlement to Deductions and Full Refund 24.If the Appellant did not remit the funds to the airline, it follows that the Appellant suffered no airline penalties. The Appellant cannot rely on its general terms and conditions to deduct penalties that were never actually incurred; to permit such deductions would be to sanction unjust enrichment. 25.While the Court appreciates the Appellant’s contention that the failure to travel was occasioned by the Respondents' failure to secure the requisite Schengen transit visas, the law of restitution and unjust enrichment dictates that money had and received for a consideration that has wholly failed must be returned, unless actual expenses legitimately incurred under the contract are proven. The Appellant failed to furnish the court with evidence of these actual expenses. 26.It bears emphasis that nothing in this judgment forecloses the entitlement of a travel agent to deduct expenses genuinely incurred on behalf of a client. What the law requires is proof. Had the Appellant demonstrated, by credible documentary evidence, that it had in fact remitted the monies to the airlines and suffered the penalties claimed, the outcome on this issue may well have been different. It did not. Determination 27.Having carefully evaluated the pleadings, the submissions by both counsel, and the applicable law, I find that the Learned Trial Magistrate's decision was well-reasoned, balanced and firmly anchored in the state of the evidence placed before her. 28.The appeal before me lacks merit. Consequently, I make the following final orders:a.The Appellant's appeal is hereby dismissed in its entirety.b.The Judgment and Decree of the Small Claims Court at Milimani in SCCC COMM No. E8053 of 2024 delivered on the 21st November 2024 is hereby upheld and affirmed.c.The costs of this appeal shall be borne by the Appellant.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JULY, 2026.BENARD WAFULA MURUNGAJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:Ms Mawinda instructed by Idambo for the AppellantsMs Mogaka instructed by Mogaka Nyantika Muriuki for the RespondentsKevin Babu - Court Assistant