[2022] KEHC 2972 (KLR)

Boru v Gufu (Civil Appeal E044 of 2021) [2022] KEHC 2972 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 2972 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E044 of 2021

EM Muriithi, J

June 9, 2022

Between

Diba Qalicha Boru

Appellant

and

Tumme Waqoh Gufu

Respondent

(Being an appeal from the Judgment and decree of the Hon. E.Ngigi (PM) delivered on 23/2/2021 in Isiolo CMCC No. 7 of 2018)

Judgment

Introduction 1. By a plaint dated 9/3/2018, the respondent (the plaintiff in the trial court) sued the appellant (the defendant in the trial court) seeking:a.Payment of a sum of Ksh. 550,660b.Interest on A at prevailing bank ratec.Cost of this suit

2. In the trial court, the respondent pleaded that her claim against the appellant was for recovery of a sum of Ksh.550,660 then over due and payable, being total amount paid to the appellant as follows: Ksh. 330,000 on 3. 9.2014; Ksh. 100,000 on 1. 10. 2014; Ksh. 60,330 on 7. 5.2015; and Ksh. 60,330 on 2. 6.2015, for a consideration that had been lacking or had wholly failed.

3. The respondent, testified as PW1 and adopted her witness statement dated 9/3/2018 as her evidence in chief. She stated that she had given the appellant Ksh.550,000 to buy for her a piece of land in Isiolo, and she was claiming the same from the appellant. It was said that the land was in Bula Nagele and on 3/9/2014 and 1/10/2014, she paid Ksh.330,000 and Ksh.100,000 respectively from her K.C.B account to the appellant’s K.C.B account. On 7/5/2015 and 2/6/2015, she made payments to the appellant of Ksh.60,330 through MPESA. Both her and the appellant were government officers and she was looking for a piece of land, and when the appellant offered to sell to her his piece of land, she trusted the appellant fully, and that is why they did not enter into a sale agreement. The appellant neither told her the land reference number nor showed her the land. When she finished the payment, she demanded to see the land but the same was not forthcoming. She did not know where the land was as she had never seen it. The appellant did not give her any documentation or a sale agreement to show that the appellant had bought land for her. She attended the council of elders of Borana where the appellant promised to pay but he failed to do so. She paid for the land in installments and the appellant told her the value of the land was Ksh.550,000. She was seeking compensation for the money, interest and cost. She produced bank statements for Ksh.330,000 and Ksh.100,000, Mpesa print outs, Demand letter and the appellant’s reply as exhibits in court.

4. On cross examination, she reiterated that when the appellant told her orally that there was a plot at Bula Nagale, she trusted him. She told the appellant to show her the plot and give her the documents but the appellant declined. They were to meet with some elders and the former MP and the appellant agreed to pay her Ksh.550,000 and the lawyer’s fees of Ksh.70,000. They did not agree that the appellant would sell a plot and pay all the money but the appellant had been ordered to pay some amount within 2 weeks after that meeting with the former MP. On re-examination, she stated that even after asking the appellant for documents, the same were not availed.

5. The appellant denied the claim through his defence dated 26/3/2018. His case was however closed by the trial court on 19/1/2021 as he was absent, with notice on the date of hearing.

6. After the conclusion of the trial, the trial court found that the respondent had proved her case on a balance of probability, and directed the respondent to be paid Ksh.550,660 by the appellant, interest on a above from September 2014 plus costs and interest of the suit.

7. On appeal, the appellant filed his amended Memorandum of Appeal on 23/4/2021 setting out three grounds of appeal as follows:a.That the Honourable Magistrate erred in law and fact by failing to take into account the Appellant’s defence and failing to give him a fair hearing.b.That the Honourable Magistrate erred in law and fact by entertaining the dispute as a recovery of sum yet the matter was purely a land transaction which had already been performed.c.That the Honourable Magistrate erred in law and fact by awarding cost and interest. Interest and costs should not have been awarded as the payment was made for purchase of land which land the respondent acknowledged had been bought.

Submissions 8. The appellant and the respondent filed their respective submissions to the appeal on 15/11/2021. The appellant commenced by reminding the court of its duty as a first appellate court as was set out in Okeno v R(1972) EA 32 and Eric Onyango Odeng’ v R(2014)eKLR. He submitted that his constitutional right to fair trial under Article 50 of the Constitution was infringed as he was not given an opportunity to defend himself and challenge the evidence adduced by the respondent. He submitted that the right to fair trial was a quintessential right which cannot be limited as provided under Article 25(c) of the Constitution, and the violation of that sacrosanct right rendered the entire trial at the lower court a nullity. He blamed his counsel on record then for failing to inform him of the date for defence hearing and urged the court not to visit the mistakes of his counsel upon him. He placed reliance on Rosemary Wanjiru Kungu v Elijah Githinji & Anor…. where it was held that, “It follows that without the defence calling witnesses who could be cross-examined on the documents produced by the defence rendered the same of very little, if any, weight at all.” He also relied on Martha Wangari Karua v IEBC….. where the Court of Appeal held that, “the Rules of Natural Justice require that the court must not necessarily drive any litigant from the seat of justice without a hearing, however weak his or her case may be.” He submitted that since he was driven away from the seat of justice without being heard, the judgement ought to be set aside, and relied on Patriotic Guards Ltd v James Kipchirchir Sambu(2018)eKLR in support of that argument.

9. He submitted that he purchased land for the respondent, but the respondent refused to take possession of the same. He faulted the trial court for entertaining the suit as one where money had been lent, yet it was purely a land dispute. He submitted that he agreed to look for another buyer so as to enable him refund the respondent her money. He submitted that he opted to settle the refund in instalments as he was in a difficult financial position. He faulted the trial court for awarding interest on the whole amount of Ksh.550,660 from September 2014 yet the same had not accrued from September as the amount had not been fully paid. He submitted that the claimed amount had already been substantially settled to the tune of Ksh.300,600 at the date of the judgement and the only outstanding amount was Ksh.250,000. He submitted that unpaid sum stood at Ksh.150,000, and the order by the trial court for costs and interest from September 2014 were unfair and unjustifiable. He submitted that since the trial court did not exercise its discretion judiciously and it considered extraneous facts, this court ought to interfere, and he supported that argument with Farah Awad Gullet v CMC Motors Group Limited(2018)eKLR. He submitted that there were glaring unfairness and gross injustice occasioned upon him and the respondent did not prove her case to the required standard.

10. The respondent admitted in her submissions that the appellant had indeed deposited Ksh.200,000 in December 2020, Ksh.100,000 in April 2021 and Ksh.100,000 in September 2021 into her account. She submitted that since the appellant had admitted the claim and made partial payments, he should clear the outstanding arrears. She viewed the appeal as a waste of judicial time and an attempt to buy time so that the appellant can continue enjoying the suit property and benefitting from her hard earned money.

Analysis and determination 11. This being a first appeal, the court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. In Kiruga v Kiruga & Another(1988) KLR 348 the Court of Appeal held that:- “an appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution.”

12. The issues for determination are; whether the appellant was accorded a fair hearing; whether the transaction had been fully performed and whether interest and costs were awardable in this case.

13. On whether the appellant was accorded a fair hearing, the record shows that on 1/10/2019, when the respondent testified, a counsel namely Mr. Lekoona was present for the appellant and he even cross examined the respondent. After the respondent had closed her case, the said Mr. Lekoona told court that, “we can have another date so that I can prepare my client for defence.”

14. The defence hearing was then fixed by consent on 10/12/2019, but on that date the same did not proceed. After several adjournments, the matter was finally set for defence hearing on 19/1/2020 by consent. On that date, the appellant and his counsel were absent. Counsel for the respondent requested for the file to be placed aside as he had not heard from Mr. Lekoona for the appellant. Later at 10. 36 am, Mr. Mukira told court that, “counsel and client are still not in court. The plaintiff case closed a while back. I pray that the defence case is closed.”

15. The appellant cannot now be heard to say that he was condemned unheard yet he was given numerous opportunities to tender his defence but he failed to do so. Since the appellant deliberately absented himself, he waived his right to defend himself.

16. In the circumstances, it the court finds that the appellant cannot claim a violation of his right to a fair hearing as enshrined under Article 50(1)(2)(k) of the Constitution because he intentionally chose not to exercise that right.

17. On whether the transaction had been fully performed, the respondent testified that she sent the appellant a total of Ksh.550,660 on varied dates in order to purchase for her a piece of land. I have seen the respondent’s bank statement and MPESA print outs and it is clear that the respondent sent to the appellant Ksh.300,000 on 3/9/2014, Ksh.100,000 on 1/10/2015, Ksh. 60,330 on 7/5/2015 and Ksh.60,330 on 2/6/2015, all totaling to Ksh. 550,660. The record shows that some payments had been made by the appellant to the respondent. On 6/10/2020, counsel for the respondent namely Mr. Mukira informed the court that, “Was coming to record a settlement no offer has since been forthcoming but I am told some money has been paid.”

18. On 14/10/2020, Mr. Lekoona for the appellant told court that, “….the other issue is that the parties has started negotiating and my client has paid 200,000 and will clear in 30 days.” In rejoinder, Mr. Mukira for the respondent told court that, “if the defendant has satisfied part of the claim that constitutes part of admission. I am also informed that part of money was paid to my client.”

19. The trial court cannot be faulted for ordering the refund of Ksh.550,660 as at the time of writing the judgement, no documentary proof was adduced by the appellant to prove that he had made part payments to the respondent and how much that was. In her submissions, the respondent admitted receipt of Ksh. 200,000 in December 2020, Ksh.100,000 in April 2021 and Ksh.100,000 in September 2021. These payments were made at an advanced stage of the case and even after the case had been finalized. The respondent testified that the appellant completely refused to show her the land he had allegedly purchased for her or any document to proof that the said land actually existed. In my opinion therefore, the transaction had not been performed.

20. On whether costs and interest were awardable in this case, Section 26 of the Civil Procedure Act provides as follows: “Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit. Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.”

21. It is trite that costs follow the event and are awardable to the successful litigant. It is also trite that the trial court has wide discretion to award and fix the rate of interests provided that the discretion must be used judiciously. Given this discretion, an appellate court is, therefore, enjoined to treat the original decision by a trial court with utmost respect and should refrain from interference with it unless it is satisfied that the trial court proceeded upon some erroneous principle or was plainly and obviously wrong. See New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd [1988] KLR 380.

22. In this case, the trial court fixed the interest payable on the payment of Ksh.550,660 at 12% from September 2014. In my opinion, the trial court erred in ordering the interest at Ksh.12% to be computed from September 2014 yet at that time, only Ksh.330,000 had been paid to the appellant by the respondent. The reminder of the money was paid in installments until June 2015. The trial court ought to have ordered the interest to be calculated from 2018 when the suit was filed. The respondent on 19/2/2018 wrote a letter to the appellant demand for refund of the sum of Ksh.550,660, which was not paid. The part payments were only made between December 2020 and September 2021 when the case had already been concluded.

23. The justification for awarding interest was espoused in Prem Lata v Peter Musa Mbiyu (1965) EA 592 where the Court of Appeal held that: “In both these cases, the successful party was deprived of the use of goods or money by reason of the wrongful act on the part of the defendant, and in such a case it is clearly right that the party who has been deprived of the use of goods or money to which he is entitled should be compensated for such deprivation by the award of interest.”

24. Similarly, in Mukisa Biscuits Manufacturing Company Limited v West End Distributors Limited (1970) EA 469 the court stated: “The principle that emerges is that where a person is entitled to a liquidated amount or to specific goods and has been deprived of them through the wrongful act of another person, he should be awarded interests from the date of filing suit. Where, however, damages have to be assessed by the Court, the right to those damages does not arise until they are assessed and therefore interest is only given from the date of the judgment.”

Orders 25. Accordingly, for the reasons set out above, the court finds that the respondent was entitled to the costs and interest as she was unlawfully kept away from her money. However, that interest ought to have been calculated from 2018 when the suit was filed. In the premises, the court allows the appeal to the extent that the interest awarded on prayer A will be computed from 2018 when the suit was instituted.Order accordingly.

DATED AND DELIVERED ON THIS 9TH JUNE DAY OF JUNE,2022EDWARD M. MURIITHIJUDGEAppearances:M/S Wario Munishi & Co. Advocates for the Appellant.M/S Kevin Nyenyire & Co. Advocates for the Responden.