[2022] KEHC 10514 (KLR)

Gesami v Constituencies Development Fund Board (Civil Appeal 123 of 2017) [2022] KEHC 10514 (KLR) (Civ) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10514 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 123 of 2017

JK Sergon, J

June 17, 2022

Between

James Ondicho Gesami

Appellant

and

Constituencies Development Fund Board

Respondent

(Being an appeal against the judgment and Decree of the Hon. G. A. Mmasi (SRM) delivered on 7th March 2017, in Civil Suit No.45 of 2013)

Judgment

1. The appellant herein instituted a suit before the Chief Magistrate’s Court by way of the plaint dated January 11, 2013 and for judgment against the respondent in the following manner:a)Kshs 1,050,000b)Costs of this suit;c)Interest on (a) above at the rate of 24% per annum from 21st September 2012 till full paymentd)Interest on (b) above at court ratese)Any other relief that this honourable court may deem fit and just to grant.

2. The appellant averred in his plaint that on or about September 21, 2012, under duress by a way of a letter dated September 14, 2012, the defendant demanded from the appellant refund of the sum of Kshs 1,050,000 ostensibly on the basis that the plaintiff had caused the said sum to be withdrawn from the account of the West Mugirango Constituency Development Fund Committee.

3. The appellant pleaded in his plaint that by the said letter, the respondent threatened that it would involve the Ethics & Anti-Corruption Commission and freeze the West Mugirango Constituency Development Fund Committee account if he did not comply thereof.

4. The respondent entered appearance on being served with summons and filed its statement of defence on March 13, 2013 respectively to deny the appellant’s claim.

5. At the hearing of the suit, the appellant testified while respondent relied on the testimony of one (1) witness. After the full hearing the suit was dismissed.

6. Being aggrieved by the aforementioned judgment, the appellant sought to challenge the same by way of an appeal. Through his memorandum of appeal dated March 20, 2017 the appellant put in the following grounds:a)That the trial magistrate erred in law and fact in holding that it is clear that it is clear that in HC Misc No 264 of 2010 ,Justice Musinga found that the Kshs 1,050,000 had been deposited in the plaintiff’s account for personal use.b)That the trial magistrate erred in law and fact in failing to hold that in paying, the appellant was complying with the court order (Justice Musinga’s order in HC Misc No 264 of 2010) was directed to the directed to the defendant to repay the funds into the West Mugirango CDF account.c)That the trial magistrate erred in law and fact in failing to hold that in paying, the appellant was complying with the court order in HC Misc No 264 of 2010)d)That the trial magistrate erred in law and fact in holding that the appellant deponed to an affidavit and admitted that the money was withdrawn from the CDF account and deposited in his account.e)That the trial magistrate erred in law and fact in holding that the appellant failed to expound on the error under which he paid the sum of Kshs 1,050,000f)That the trial magistrate erred in law and fact in holding that the Kisumu criminal cases Kisumu CMCR No 354 & 355 of 2011) had no bearing and or nexus to this case.g)That the trial magistrate erred in law and fact in holding that the appellant’s suit was res judicata.h)That the trial magistrate erred in law and fact by holding, despite adequate evidence, that the plaintiff had not proven his case against the respondent.i)That the trial magistrate erred in law and fact in coming to the judgment she came to contrary to the evidence tendered and the Law.

7. This court gave directions to the parties to file written submissions on the appeal. The appellant filed his submissions on February 16, 2022.

8. On ground 1 and 3, the appellant submitted the trial court made a serious error in determining that the Kshs 1,050,000 had been deposited in the appellant's account for personal use, as that was not the subject before the Judicial Review court and definitely no formal finding of that type was made by the learned judge.

9. The appellant further submitted that the learned trial magistrate failed to see that the allusion to depositing money in the appellant's account for personal use was purely an event of the learned judge's drafting of the substantive notice of motion in the judicial review proceedings and not a finding of fact.

10. On ground 2, 4 and 5, the appellant submitted that the respondent herein demanded a refund of Kshs 1,050,000 from the appellant in a letter dated September 14, 2012, and that the respondent also threatened to involve the Ethics and Anticorruption Commission as well as freeze the account of the West Mugirango Constituency, of which the appellant was the patron.

11. The appellant further submitted that in these circumstances that he made the payment of the Kshs 1,050,000 as he was forced to pay the sum demanded to avoid unnecessary suffering of his constituents.

12. The appellant contends that he was unwilling to pay but had to because he did not wish that development projects in his constituency should stall.

13. On ground 7, the appellant submitted that the lower court clearly erred in holding that the suit before the subordinate court involved directly and substantially similar matters and parties as those in Nairobi HC JR Misc No 264 of 2010, because the latter suit is a judicial review proceeding in which the reliefs sought before the court are prerogative orders, whereas the instant proceedings are in respect of a specific claim for money had and received from the appellant by the respondent.

14. The appellant contends that the parties were certainly different as the appellant herein was not party in the judicial review proceedings and therefore there can be no basis at all for claiming and holding that res judicata applies on the instant suit before this court.

15. In reply, on ground one, the respondent submitted thatin providing evidence in support of his application to set aside Hon Musinga's ruling in HC Misc 264 of 2010, the appellant acknowledges in the said affidavit that the ruling implicated him, among others, in pilfering funds from the CDF, misappropriating funds by converting them for his personal use, and general mismanagement of funds.

16. The respondent further submitted that the trial magistrate cannot be faulted for reaching a factual and legally sound finding when she ruled that Hon Musinga had found that the cash in question was deposited into the appellant's account for his own use.

17. On ground 2 and 3, the respondent contends that the appellant's claim that it paid the said sum of Kshs 1,050,000 to avoid suffering by its constituents is unfounded and untrue, because the appellant had previously refused to pay the money and it was only after the respondent threatened to refer the matter to EACC that the appellant decided to make the payments. As a result, the payment was made in accordance with Hon Musinga's order not as the appellant claimed.

18. On ground 4, the respondent submitted that the appellant, having deponed in his affidavit that monies were diverted to his account, offered evidence to the court, and it is thus dishonest of the appellant to break from his position by claiming that the trial court erred in finding that the money had been put in his account.

19. On ground 5, the respondent submitted that there is a discrepancy between the appellant's position that he made the payments to protect the interests of its constituents and the appellant's position that he was coerced into making the payments, resulting in the error, and that the appellant is basically proving to this honourable court that he is inconsistent in his assertions and evidence.

20. On ground 6, the respondent submitted that the trial magistrate was correct in holding that the criminal case for fraudulent acquisition of public property did not have any bearing in the present suit and subsequent appeal because the magistrate made reference to an impress warrant of Kshs 600,000 and there was no mention of the sum of Kshs 1,050,000 being deposited in the appellant's account at no point in the ruling.

21. On ground 7, the respondent submitted that the court in HC Misc 264 of 2010 concluded that the appellant was indeed involved in the misappropriation of Kshs 1,050,000 from the West Mugirango CDF account, and that the same was noted in SPM Civil Suit No 45 of 2013, and that no court had jurisdiction to hear and determine a subsequent suit.

22. On grounds 8 and 9, the respondent submits that the appellant's West Mugirango CDF account had already been frozen due to the appellant's refusal to comply with court orders arising from the ruling, and that it was only when the respondent sought to refer the matter to the Ethics and Anti-Corruption Authority that the appellant refunded the Kshs 1,050,000 paid into his account from the CDF account.

23. On this the respondent relied on the case of Kipkebe Limited v Peterson Ondieki Tai (2016) eKLR the court held that:“It is trite law in evidence that he who asserts must prove his case. No evidence was adduced by the plaintiff. In such cases, the burden of proof lies with whoever would want the court to find in his favour in support of what he claims.Section 107 of evidence Act succinctly states:“Whosever 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.And Section 108 of Evidence Act, further states thus:“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.”

24. The Court of Appeal in the case of Selle &another v Associated Motor Boat Co Ltd &another (1968) EA 123; the court held that the duty of an appellate court is to evaluate and re-examine the evidence adduced in the trial court in order to reach an independent conclusion, taking into account the fact that the court had no opportunity of hearing or seeing the parties as they testified and therefore, make an allowance in that respect.

25. After perusal of the record of appeal, submissions from the appellant and pleadings, I have identified the following issues for determination;i.Whether the appellant is entitled to the claim of Kshs 1,050,000 plus the interest at the rate of 24% p.a.ii.Whether this matter is resjudicata

26. It is apparent that the High Court Judge Hon. Musinga determined that the money was transferred into the appellant's account for his personal use. The appellant claimed that he paid the money, only to discover afterwards that he had made a mistake. The appellant did not elaborate on the purported fault.

27. The appellant paid the aforementioned sum of Kshs 1,050,000 to save its constituents from suffering, and the appellant further asserted that he was forced to return the said cash back to the constituency account or risk being hauled to the Ethics Anticorruption Commission.

28. The bottom line is that Justice Musinga ordered the funds to be paid. Despite the fact that the plaintiff said that he was not a party to the judicial review proceedings and that he was not a party to the judicial review proceedings, he deposed to an affidavit and admitted that the money was withdrawn from the CDF and placed in his account.

29. Because the appellant was dissatisfied with the judge's finding and order, he filed an application to have the ruling and order set aside, but the appellant did not pursue the motion. The appellant pointed to the Kisumu criminal cases in this court, which, in my opinion, have no effect or relation to this issue.

30. On the second issue,the respondent argued that the doctrine makes a final judgment by the courted competent jurisdiction on the subject matter of the claim conclusive between the same parties or their privies on the same issue.

31. It is also obvious that the subject matter in High Court Misc No. 264/2010 is directly and essentially the same as the subject matter in High Court Misc No 264/2010, the gist of which is the plaintiff's withdrawal of Kshs 1,050,000 from the West Mugirango CDF bank account for personal use.

32. In a letter dated September 14, 2012, the respondent demanded a repayment of Kshs 1,050,000 from the appellant, claiming that the appellant had caused the sum to be removed from the West Mugirango Constituency Development Committee's account..

33. In the Court of Appeal held in The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR), that:or the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;a)The suit or issue was directly and substantially in issue in the former suit.b)That former suit was between the same parties or parties under whom they or any of them claim.c)Those parties were litigating under the same title.d)The issue was heard and finally determined in the former suit.e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.

34. In High court Miscellaneous No 264 of 2010, the applicant sought a Mandamus order compelling the respondent to restore funds withdrawn from the West Mugirango Constituency Development Fund Account for personal use at the request of the patron, who is the appellant herein, in violation of the Constituency Development Fund Act.35. The matter was settled by the judge, and if the plaintiff was offended, he should have appealed; further, the appellant filed an application to set aside Justice Musinga's decision and ruling, but never followed through on it, and thus the subject is res judicata.36. This court finds that the appellant failed to discharge the burden of proof on the balance of probabilities. Consequently, this appeal is dismissed for want of merits with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. ………………………J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent