[2020] KEHC 8682 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

(CORAM: T.W. CHERERE-J)

COMMERCIAL CASE NO. 22 OF 2018

(FORMERLY KISUMU ELC 156 OF 2017)

BETWEEN

DOMINION FARMS............................................................................................PLAINTIFF

AND

LAKE BASIN DEVELOPMENT AUTHORITY.....................................1ST DEFENDANT

VICTORIA BLUE AUCTIONEERING SERVICES..............................2ND DEFENDANT

AND

IN THE MATTER OF COUNTERCLAIM

BETWEEN

LAKE BASIN DEVELOPMENT AUTHORITY...................................1ST DEFENDANT

AND

DOMINION FARMS...........................................................................................PLAINTIFF

JUDGMENT

Background facts

1. By a Memorandum of Understanding (MOU) dated 19th May, 2003 between the Plaintiff and the 1st Defendant, agreed to jointly take a lease of a farm at Yala Swamp from the County Council of Siaya and the County Council of Bondo (as they were known then).

2. It was a term of the agreement that the 1st Defendant was to provide the Plaintiff with technical assistance and expertise and any other assistance that the Plaintiff was to require from time to time for which the Plaintiff was to pay the following amounts commencing in 2003:

i. 0-5 years (Three million shillings (Kshs. 3,000,000/-) per year)

ii. 5-10 years (Three million shillings (Kshs. 3,000,000/-) per year)

iii. 10-15 years (Five million shillings (Kshs. 5,000,000/-) per year)

iv. 15-20 years (Six million shillings (Kshs. 6,000,000/-) per year)

v. 20-25 years (Seven million shillings (Kshs. 7,000,000/-) per year)

3. The parties also agreed to enter into a tenancy agreement for the purpose of the Plaintiff renting houses and offices constructed by the Plaintiff.

4. The parties appear to have disagreed as a result of which the 1st Defendant instructed the 2nd Defendant to levy distress on Plaintiff’s properties in January, 2017 for alleged non-payment of rent prompting the Plaintiff to file this suit on 04th May, 2017 by a plaint dated 04th May, 2017 to stop the distress.

5. In response to the plaint, the 1st Defendant in its defence and counterclaim filed on 04th December, 2017 denied the Plaintiff’s claim and pleaded that by a tenancy agreement dated 01st July, 2013, the Plaintiff paid an initial payment of Kshs. 21,620,000/- and owes Kshs. 34,130,000/- which sum the 1st Defendant has counterclaimed for.

6. On 31st July, 2019, the Plaintiff’s claim was dismissed for want of prosecution.

Counterclaim

7. Clifford Obiero, the 1st Defendant’s witness reiterated the terms of the MOU and acknowledged that 1st Defendant had received Kshs. 21,620,000/- and in support thereof tendered a statement of account dated 25th April, 2015 and a bundle of receipts in respect thereof. It was also his evidence that the Plaintiff subsequently defaulted and owed the 1st Defendant Kshs. 34,130,000/- as at 01st March, 2017.

Issues for determination

8. I have considered the 1st Defendant’s case together with its submissions and I have summarized issues for determination as follows:

a) Whether the counterclaim is merited

b) Who is to bear the costs of the suit

Whether the counterclaim is merited

9. The relationship between the parties herein arises from a MOUdated 19th May, 2003. Clause EE of theMOUcontains a term that the parties agreed to enter into a tenancy agreement for the purpose of the Plaintiff renting houses and offices constructed by the 1st Defendant.

10. Although the 1st Defendant pleads the existence ofa tenancy agreement dated 01st July, 2013 between the parties, none was tendered. The Plaintiff in its plaint denied the existence of such a tenancy agreement.

11. It is trite law that "whoever alleges must prove. Section 107 of the Evidence Act, Chapter 80 Laws of Kenyastipulates this in the following terms:

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.

2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person

12. Further Section 109in narrowing down to proof of particular facts stipulates:

The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

13. Further, Section 110further provides that:

The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.

14. Regarding the incidence of burden, Section 108provides that: -

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

15. It is therefore clear that the burden to prove that that there existed a tenancy agreement between the Plaintiff and the 1st Defendant against the Plaintiff lies with 1st Defendant. The 1st Defendant’s counterclaim for Kshs. 34,130,000/-, in the absence of prove of existence of a tenancy agreement between the parties is founded on shaky ground and cannot therefore stand.

DISPOSITION

12. In view of the foregoing analysis, this court makes the following orders:

i.The counterclaim has no merit and it is dismissed

ii.Each party shall bear its own costs

DELIVERED AND SIGNED IN KISUMU THIS 06thDAY OFFebruary2020

T.W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Amondi/Okodoi

Forthe Plaintiff - N/A

Forthe 1st Defendant - N/A

Forthe 2nd Defendant - N/A