[2017] KEELC 86 (KLR)
The court found that the applicant failed to prove, on a balance of probabilities, that Jikaze Millers Ltd was holding a balance of Ksh. 2,000,000 from the sale of wheat. The applicant did not personally participate in the harvesting and sale, instead relying on representatives whose evidence must be tested at full...
Source-derived case information.
- Citation
- [2017] KEELC 86 (KLR)
- Parties
- Plaintiff: Atanasio Kithure Francis; Defendant: Clare Regina Kagwiria; Defendant: Fridah Kagendo Kaburu; Interested Party: Ruth Kathambi Mutua
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 25 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- Application partly allowed; main monetary prayer dismissed; order for production of documents granted; costs to applicant.
- Judges
- LN Mbugua
- Legal Topics
- Interlocutory Injunctions, Sale of Agricultural Produce, Joint Accounts, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Atanasio Kithure Francis
Plaintiff
Clare Regina Kagwiria
Defendant
Fridah Kagendo Kaburu
Defendant
Ruth Kathambi Mutua
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether Jikaze Millers Ltd should be compelled to deposit Ksh. 2,000,000 into the joint account as proceeds from the sale of wheat.
- 2 Whether Jikaze Millers Ltd should be compelled to produce all documentary evidence relating to the sale of wheat.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the applicant failed to prove, on a balance of probabilities, that Jikaze Millers Ltd was holding a balance of Ksh. 2,000,000 from the sale of wheat. The applicant did not personally participate in the harvesting and sale, instead relying on representatives whose evidence must be tested at full trial. The court held that the prayer to compel deposit of Ksh. 2,000,000 was unmeritorious. However, the court found it appropriate to order production of all documentary evidence relating to the sale of wheat by Jikaze Millers Ltd to facilitate a fair trial. The applicant was ordered to bear the costs of the application, including any costs arising from compliance with the...
Court Disposition
Application partly allowed; main monetary prayer dismissed; order for production of documents granted; costs to applicant.
Orders
- Prayer to compel Jikaze Millers Ltd to deposit Ksh. 2,000,000 into the joint account is dismissed.
- Jikaze Millers Ltd – Timau is ordered to avail all documentary evidence in its possession relating to the sale of the wheat, to be produced during pretrial.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIROMENT AND LAND COURT AT MERU
ENVIRONMENT AND LAND CASE NO. 25 OF 2015
ATANASIO KITHURE FRANCIS ....................................................PLAINTIFF
VERSUS
CLARE REGINA KAGWIRIA….....………………...………1ST DEFENDANT
FRIDAH KAGENDO KABURU…………....……………….2ND DEFENDANT
RUTH KATHAMBI MUTUA…………………………...INTERESTED PARTY
R U L I N G
The Notice of Motion dated 30th day of September, 2015 seeks the following orders.
a) Spent.
b) That this Honourable Court be pleased to compel JIKAZE MILLERS LTD –TIMAU to deposit a sum of Ksh. 2,000,000/= into account No. […] at Commercial Bank of Africa (Meru Branch).
c) That this Honourable Court be pleased to compel JIKAZE MILLERS LTD-TIMAU to produce all documentary evidence in their possession in relation to the sale of the wheat.
d) THAT the costs of this application be provided for.
The Application is supported by the affidavit of ATANASIO KITHURE FRANCIS and has the following grounds.
a) The Court through it ruling dated 30th July, 2015 ordered that the wheat on the Suitland be harvested and the proceeds to be deposited in a joint account held by the parties.
b) That JIKAZE MILLERS who bought the harvested wheat have only deposited Ksh. 780,000/= into the account and a balance of Ksh, 2,000,000/= is still pending.
c) That it is fair and just that the balance of Ksh. 2,000,000/= be deposited into the joint account.
d) That the applicant will be disadvantaged if the full amount of the sale is not deposited in the joint account.
The Applicant has filed two Supporting Affidavit. The first one was filed on 02. 10. 18, the other on 16. 10. 16. The gist of the Applicants averments are that in accordance with the Court’s orders of 30. 07. 15, the wheat was harvested and sold, and the money was banked. However Applicant contends that the harvested wheat was 83,380 kg sold to Jikaze Millers at Kshs. 2, 786,000. But Jikaze Millers only deposited Kshs. 780,000 leaving a balance of Kshs. 2,000,000. Applicant contends that the wheat delivery documents were only availed to defendant by the millers and hence defendant kept away two of the deliveries in respect of vehicle KBJ 361 J and KBG 971K. Applicant is also contesting the price of Ksh. 2800 per bag.
A Replying affidavit was filed on 12/10/15 where the 1st defendant on behalf of the other defendants has stated that the total wheat harvested was 35140 kg which means approximately 386 bags of 91 kg each. Defendants contend that Jikaze millers are not holding 2 million as alleged and that it is not true that the miller did not remit the entire proceeds.
The Applicant was canvassed by way of written submissions. This Court has Considered all the submissions. It is trite law that he who alleges must prove. It is the Applicant who states that the wheat sold was worth Kshs. 2,780,000. It was therefore incumbent upon the Applicant to justify this allegation.
The Courts order of 30. 07. 15 states:-
“The wheat and its by products on the property,,,,, be harvested under the supervisor of all parties on a date or dates to be appointed by the parties and be sold to a dealer or a purchaser agreed upon by all the parties and with supervision of all the parties”.
The applicant did not personally participate in two process (harvesting and selling). Instead he sent representatives who took account of their own records. The evidence of these representatives ought to be subjected to the usual rigours of a full trial so as to be cross examined on what their findings were in the harvest and sale processes.
I therefore find prayer to compel Jikaze millers to deposit the sum of sh. 2 million into the KCB account is not being meritorious.
There is however nothing wrong in ascertaining how the sale was conducted. I therefore proceed to give directions as follows:-
1) Prayer b in the application is hereby dismissed.
2) Jikaze Millers Ltd –Timau are hereby ordered to avail all documentary evidence that is in their position in relation to the sale of the wheat. The production of the documents to be done during pretrial of the case.
3) Applicant is to bear the costs appertaining to or incidental to this application including any costs that maybe incurred pursuant to compliance with order No. 2.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT MERU THIS 27TH DAY OF SEPTEMBER, 2017 IN THE PRESENCE OF:-
CA: Janet
Mutunga for Respondents present
HON. L.N. MBUGUA
JUDGE