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into an agreement with the Claimant for the creation of the Claimant’s custom software solution and e-commerce website. 6. Further, the Respondent pleaded that they commenced the project upon receiving 50% of the consideration from the Claimant. They blamed the none completion of the project on the Claimant’s director who reportedly introduced a new software from what had been agreed on. They also blamed the Claimant for failing to provide the necessary content for the completion of the project despite several requests from the Respondent. 7. It was also the Respondent’s case that having undertaken the project as agreed, the Claimant owed them the balance of Kshs. 150,000/= that was to be paid through monthly instalments of Kshs. 19,687.50/= with effect from April 2024. 8. In the circumstances, the Respondent prayed that the Claimant’s claim be dismissed with costs and that their counterclaim for the sum of Kshs. 150,000/= with interest be allowed with costs. 9. On 07th May 2025, the parties recorded a consent to the effect that this matter proceeds by way of section 30 of the Small Claims Court Act. The counsel for the parties herein confirmed the terms of the said consent when they appeared before this court on 26th May 2025. 10. The said consent was recorded despite the fact that the Claimant did not file any document in support of their claim. Their list of documents filed herein is actually blank. It would appear that the Claimants sought to rely on the witness statement by Charles Van Ham in support of their claim. ANALYSIS & DETERMINATION 11. The parties pleadings, witness statements, documents, submissions filed as well as authorities relied upon have been duly considered by this court. Kitale SCC CC. No. E032 of 2024 Page 2 of 8 Judgment

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12. It is common ground that sometimes in October 2023 the parties herein entered into an agreement for the Respondent to deliver and develop a website and an operating system for the Claimant at a cost of Kshs. 315,000/=. 13. The parties herein were also in agreement that the Claimant paid the Respondent Kshs. 165,000/= being part payment for the project that the Respondent was to deliver. 14. Whereas the claim is for the money received and held, and the counterclaim is for the balance of the consideration payable under the agreement entered into by the parties herein, the claim and the counterclaim are both based on allegations of breach of the agreement by either party. 15. The foregoing shows that the only issue that commends to this court for determination is who breached the agreement entered into between the Claimant and the Respondent for the delivery of a website and an operating system, and in the event there was a breach, what are the remedies. 16. In Gatobu M’ibuutu Karatho – Versus - Christopher Muriithi Kubai [2014] eKLR the court cited the High Court in Kampala case Nakana Trading Co. Ltd – Versus - Coffee Marketing Board 1990-1994 EA 448, which dealt with the issue of breach of contract as follows:“In contract, a breach occurs when one or both parties fail to fulfill the obligations imposed by the terms since the contract between the parties was reduced into writing, the duty of the court is to look at the documents itself and determine whether it applies to existing facts.” 17. The Black’s Law Dictionary, 9th Edition, Page 213, defines a breach of Contract as; Kitale SCC CC. No. E032 of 2024 Page 3 of 8 Judgment

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“a violation of a contractual obligation by failing to perform one’s own promise, by repudiating it, or by interfering with another party’s performance. A breach may be one by non-performance or by repudiation or by both. Every breach gives rise to a claim for damages and may give rise to other remedies. Even if the injured party sustains no pecuniary loss, or is unable to show such loss, with sufficient certainty, he has at least a claim for nominal damages.” 18. The foregoing shows that a party instituting a claim based on breach of contract bears the burden of proving the contractual obligations violated by the party alleged to be in breach of the agreed contractual obligations. Simply put, he who alleges must prove as restated in Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: “As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 19. A reading of the documents filed by the Respondent (Rexh. 1-6) shows that a dispute arose between the parties herein on whether the Respondent had delivered the project as agreed. 20. The Claimant pleaded that the Respondent breached the agreement by failing to complete and deliver the project by 08 th June 2024 as per the terms of engagement and the Respondent’s work plan. 21. The Claimant also blamed the non-completion of the project on the Respondent’s failure to respond to the Claimant’s email inquiries Kitale SCC CC. No. E032 of 2024 Page 4 of 8 Judgment

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regarding the progress and turn around of the project (see CPA Kimani Josphat’s email to Policap and Benedict on 29th August 2024). 22. CPA Kimani Josephat’s email of 22nd August 2024 to Benedict and copied to Policap shows that as at that date, the Respondent had not developed the website to the Claimant’s satisfaction. 23. The Respondent on the other hand simply pleaded that the project could not be completed since the Claimant did not fulfil their part by failing to provide the products and descriptions that were needed to be uploaded to the Claimant’s website despite several requests (see Ben’s email to Josephat and team on 03rd September 2024). The Respondents added that they developed a functional business management software as well as a website for the Claimant, only for the Claimant’s director to later introduce a new software from what had been agreed on. 24. What this court gathers from the evidence placed before this court is that neither party is taking the blame for non non-completion of the project as agreed. 25. None of the parties herein placed before this court their terms of engagement or agreement for this court to appraise itself on the precise terms of engagement between the parties herein regarding the project in question. 26. This begs the questions; what were the agreed features of the functional business management software and website that the Respondent had agreed to deliver for the Respondent? What were the duties or the contractual obligations of either party? 27. Further in the absence of the written terms of engagement and/or agreement between the parties herein, this court cannot tell what the parties herein agreed upon on the fate of the any deposit paid or the balance due in the event the project that the parties herein set out to deliver was not delivered. Kitale SCC CC. No. E032 of 2024 Page 5 of 8 Judgment

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28. The above should not be construed as this court saying that the agreement between the parties herein needed to be in writing for it to be enforced. The law in this jurisdiction is that oral agreements supported by credible evidence are enforceable as stated in Patrick Njuguna Kimondo vs. Geoffrey Vamba Mbuti [2019] eKLR where the court discussed the issue of oral contracts and held thus: “I am of the opinion that oral agreements supported by credible evidence can be and are enforceable. All what the law requires is that certain contracts be in writing – Section (3) (3); Short of that, it would be a travesty of justice as most people either knowingly or otherwise transact their businesses upon oral agreements.” 29. The agreement the subject of the Claim and the Counterclaim herein is not one that needed to be in writing for it to be enforceable. Be that as it may, even if the parties herein entered into an oral agreement, the evidence on record was barely adequate for this court to make a finding on the specifics of the website and the operating system that the Respondent was to deliver for the Claimant, the consequences of the non-completion of the project, and who was to blame for the non-completion of the project. 30. It is this court’s considered view that the questions above could only be answered by this court by the parties herein placing before this court their written terms of engagement and/or agreement and the Respondent’s workplan that the Claimant alluded to in their Statement of Claim and witness statement. 31. Whereas the Respondent provided the link to the website they reportedly developed for the Claimant and the screengrabs of that website to prove that they delivered what the Claimant ordered, such evidence could only be compared against the terms of engagement or the agreement that the parties herein executed. Kitale SCC CC. No. E032 of 2024 Page 6 of 8 Judgment

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32. This court is also of the considered view that this was a proper case for either party to file an expert report to prove whether or not the Respondent delivered on the project as per the terms of engagement or specifications that the Claimant had contracted the Respondent for. 33. In the absence of such expert evidence, this court cannot arrogate to itself IT expertise of determining whether or not the Respondent delivered the project the Claimant had contracted them for. This court lacks such expertise, hence, it declines an invitation to descend into the arena of determining whether or not the website and the operating system that the Respondent developed met the specifications that the Claimant had contracted the Respondent for. 34. Had this matter proceeded by way of viva voce evidence, this court would have invoked its powers under section 19 of the Small Claims Court Act to summon an expert witness to give relevant evidence to help in determining the dispute before this court. 35. Where parties elect to proceed by way of section 30 of the Small Claims Court Act, the unwritten understanding is that the Claim and the Response to the Claim or Counterclaim, where applicable, and the documentary evidence filed by the parties are self-contained. Where parties choose that route, they must be ready for any attendant adverse consequences, if any. 36. The upshot of the foregoing is that neither party proved their case to the required standards. DISPOSITION Given the foregoing, the Claimant’s Statement of Claim dated 08 th October 2024 and the Respondent’s Counter dated 31st October 2024 are dismissed. Each party to bear their costs. Kitale SCC CC. No. E032 of 2024 Page 7 of 8 Judgment

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File closed. READ, SIGNED and DELIVERED virtually at Bungoma this 29th day of May 2025 T.O. OMONO ADJUDICATOR In the presence of: Parties: Absent C/A Albert Kitale SCC CC. No. E032 of 2024 Page 8 of 8 Judgment

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