REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT MILIMANI COMMERCIAL CLAIM NO. E97099 OF 2025 KWESA MENSAH……………….…………..CLAIMANT VERSUS KENNETH KABUGA…………………………..RESPONDENT JUDGMENT The Claimant moved this court through a Statement of Claim dated 02 nd July 2025, praying for judgment against the Respondent for:a) Judgment in the sum of Kshs. 369,333/= b) Additional compensation 50% - 100% of capital invested The Claimant pleaded that on 29 th January 2025, he shared job opportunities for 10 – 15 security guards in Dubai with the Respondent. He agreed with the Respondent that he would process visas for the potential security guards at a cost of 3500 AED per a successfully processed visa. It was also pleaded by the Claimant that he successfully processed three visas for the potential security guards but the Respondent failed to pay him Kshs. 369,333/= for the services rendered hence this suit. The Respondent neither entered appearance nor filed a Response to the Statement of Claim despite having been duly served with the pleadings. Consequently, this matter matter was fixed for formal proof for the Claimant to prove his claim for compensation of 50% - 100% of capital invested. A summary of the evidence adduced by the Claimant is set out below. CW1 Kwesi Mensah adopted his witness statement dated 03rd July 2025 as his evidence in chief. He produced the documents listed in his list of
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documents herein as exhibits. The Claimant’s testimony was largely a rehash of the averments in his Statement of Claim. CW2 Ibrahim Sulah Luyali testified that between 25th March 2024 and 05th April 2024, he sent Kshs. 410,000/= to the Respondent’s Mpesa number 0726886488 with an understanding that the Respondent would send around Kshs. 370,000/= to the Respondent. He added that he was aware that the Respondent had defrauded the Claimant, Kshs. 370,000/= that was due to the Claimant. ANALYSIS & DETERMINATION This court has duly considered the pleadings, written statements, documents, and all the evidence placed before this court by the Claimant. It is settled law in this jurisdiction that the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides: 107. (1) 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. Section 109 of the Evidence Act, on the other hand, stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. This begs the question of whether the Claimant proved his claim to the required standards. The evidence on record proved on a balance of probabilities that the Respondent owes the Claimant Kshs. 369,333/= arising from three visas that the Claimant successfully processed for Samuel Muiruri Ngwiri, Kassim Abdallah, and James Kamau Mungai.
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However, the Claimant did not adduce any evidence before this court to prove on a balance of probabilities that he was entitled to the claim for compensation of 50% - 100% of capital invested. DISPOSITION The upshot of the foregoing is that: a) Judgment is entered against the Respondent for the sum of Kshs. 369,333/=. b) The sum of Kshs. 369,333/= due to the Claimant will earn interest at court rate from the date of filing this claim till payment in full. c) The Claimant will have the costs of this claim assessed at Kshs. 10,000/=. d) Certificate of costs and decree to issue. e) File closed. READ, SIGNED, and DELIVERED in open court at Bungoma this 09 th day of October 2025 T.O. OMONO ADJUDICATOR In the presence of: Claimant C/A: Mr. Rioba
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