Nganga v AGS Travel Africa Ltd (Commercial Case E11830 of 2025) [2026] SCC 38 (KLR)

constituted a non- refundable application fee forming part of an agreed service fee of Kshs. 250,000/ =, with the balance of Kshs. 150,000/= payable upon successful visa approval. 6. The Respondent further stated that it processed the Claimant’s application and secured a job ofier dated 16th June, 2025, but that the visa application was ultimately unsuccessful. It was therefore the Respondent’s position that no refund was due to the Claimant. 7. In support of its defence, the Respondent produced an agreement dated 11th June, 2025, a receipt dated 22nd May, 2024, and a job ofier letter dated 16th June, 2025. 8. The matter proceeded by way of viva voce evidence. Both parties essentially adopted and reiterated the contents of their respective pleadings and witness statements. The Respondent produced the documents contained in its list of documents as exhibits. The Court need not reproduce that evidence in extenso in this judgment. 9. Having carefully considered the pleadings, evidence, and submissions on record, the Court finds that the following issues arise for determination: a. Whether the Claimant paid the Respondent Kshs. 100,000/= for visa processing and related services; b. Whether the Respondent fulfilled its obligations under the agreement; and c. Whether the Claimant is entitled to the reliefs sought. B. Analysis And Determination. 10. On the first issue, there is no dispute that the Claimant paid Kshs. 100,000/= to the Respondent. Indeed, the Respondent expressly admits receipt of the said sum. This issue is therefore not in contest and is resolved in the afirmative. 10. The second issue is whether the Respondent discharged its contractual obligations. The Respondent asserts that it processed the Claimant’s application for a Turkish visa, which was ultimately unsuccessful. However, beyond this bare assertion, no documentary evidence was tendered to demonstrate that any such application was ever lodged with the relevant authorities. No application forms, correspondence, acknowledgment receipts, rejection notices, or any supporting documentation were produced before this Court. 10. While in paragraph 3 of their Reply to the Statement of Claim the Respondent alleges that it duly performed its contractual obligations, including provision of visa documentation, ofice administrative services, and filing and handling of the visa application, no evidence whatsoever has been availed before this Court to substantiate those assertions. In the absence of documentary or other credible proof, the said averments remain mere allegations unsupported by evidence. 10. Of further concern is the inconsistency in the Respondent’s evidence. While it claims to have facilitated employment and travel to Turkey, the job ofier produced in evidence is from Alfa Summit Contracting L.L.C, a company based in Dubai, United Arab Emirates. The Respondent ofiered no satisfactory explanation for this discrepancy. 10. Even assuming that the Respondent redirected efiorts towards alternative employment following the alleged failure of the Turkish process, there is no evidence that any visa application was made in respect of the Dubai opportunity. The Court is therefore left with assertions that are not supported by documentary proof. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/38/eng@2026-06-19 2

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10. It is a settled principle of law that he who alleges must prove. The burden lay upon the Respondent to demonstrate the steps taken in fulfillment of its contractual obligations. That burden was not discharged. 10. It is this Court’s duty to state, in no uncertain terms, that litigation is determined on evidence and not on assertion. A party who alleges performance must demonstrate it through credible, cogent, and preferably documentary evidence. Courts do not act on speculation, and they cannot fill evidential gaps created by a party’s failure to produce primary proof. In this case, the Respondent’s evidence fell far below the standard required to justify retention of the Claimant’s money. 10. In the circumstances, this Court is not persuaded that the Respondent fulfilled the obligations for which it received the Claimant’s money. Accordingly, the Court finds that the Respondent failed to honour the terms of the agreement between the parties. 10. On the final issue, having found that the Respondent received the Claimant’s money and failed to demonstrate performance of the services contracted for, it follows that the Claimant is entitled to reimbursement of the sum claimed. C. Conclusion. 10. 10. In the result, the Claimant’s claim succeeds and Judgment is hereby entered in favour of the Claimant against the Respondent for: a) Kshs. 100,000/=; b. Interest on the said sum at court rates from the date of filing the statement of claim until payment in full; and c. Claimant is granted Costs of the suit assessed at Kshs. 10,000/=. d. 30 days stay of execution is hereby granted. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 19TH DAY OF JUNE,2026 SIGNED BY/FOR: THE JUDICIARY OF KENYA HON. JAMLICK MURIITHI MWENDA THIKA SMALL CLAIMS COURT https://new.kenyalaw.org/akn/ke/judgment/scc/2026/38/eng@2026-06-19 3

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