[2021] KEHC 12895 (KLR)

REPUBLIC OF KENYA

IN THE HIGHCOURT OF KENYA AT NYAHURURURU

CIVIL APPEAL CASE NO. 101 OF 2017

(Formerly Civil Appeal No. 67 of 2006)

HARRISON WANJOHI WAMBUGU.....................APPELLANT

VERSUS

FELISTA WAIRIMU CHEGE..........................1ST RESPONDENT

PETER CHEGE NJAU.....................................2ND RESPONDENT

JUDGEMENT

INTRODUCTION

1. This is an appeal by Harrison Wanjohi Wambugu, the plaintiff in the original action from the judgement of S.M. Mungai Principal Magistrate in PMCC No. 24 of 2004 dated 17/8/2016 whereby the Learned Principal Magistrate dismissed the appellant’s suit with costs.

2. The appeal is supported by grounds set forth on the Memorandum of Appeal namely;-

i. That the learned magistrate erred in law and fact by disregarding the appellant’s evidence in proof of his case.

ii. That the learned magistrate erred in law and fact by holding that the respondent’s evidence was reliable when in fact he failed to bring his judicial mind on why the appellant was being beaten by neighbors and arrested by the police on a complaint by the respondents.

iii. That the learned magistrate erred in law and fact in failing to direct his mind to the period the appellant won his case before the tribunal and the time he was assaulted by the respondents.

iv. That the learned magistrate erred in law and fact in regarding a report from the rent inspector when the said inspector was not called to adduce evidence on the report.

3. The backdrop to this appeal is that in the year 1997, the respondents who are wife and husband respectively leased out three separate rooms situated on their property described as Plot No. 912 Ziwani Estate Nyahururu to the appellant who claimed that he used to operate a shop in one of the rooms. Thereafter, according to him a dispute arose between the parties when the respondents increased the rent payable. The appellant filed a suit in the Business Premises Tribunal at Nyahururu being Tribunal Case No. 13 & 15 of 1997 wherein the respondents were restrained by the tribunal from evicting the appellant from the said premises.

4. The appellant alleged that on 31/8/1997, the respondents forcefully broke into the shop, damaged his stock and household items worth Kshs.188,569. 40/- and physically assaulted him causing bodily harm. The appellant also alleged that the respondents made a malicious report to the police that the appellant had sent thieves to attack them and as a result of the false report the appellant was arrested and detained for four days. Thereafter, the appellant filed suit in the chief magistrate court at Nakuru seeking inter alia general and special damages for the property damaged and for personal injuries he sustained rom the alleged assault by the respondents. The suit was subsequently transferred to the senior principal magistrate’s court at Nyahururu.

5. The respondents filed a joint statement of defence and counter claim. They denied breaking into the appellant’s house and physically assaulting him. They claimed that they leased three rooms to the appellant who used the same as residential. They claimed that one of the rooms was a shop but the appellant used the same as a store and did not operate a shop therein. Vide their counterclaim the respondents claimed for costs that were awarded in their favor against the appellant in various cases that has been instituted in court between the parties herein.

6. The trial court after hearing the evidence of the parties in its judgement dated 17/8/2006 dismissed both the appellant’s suit and the respondents counter claim for lack of evidence. Being aggrieved by the said decision the appellant filed an appeal in the high court and the same was admitted for hearing. On 5/5/2008 the high court dismissed the appellants appeal for non-attendance.

7. Subsequently, on 7/5/2008 the appellant filed an application seek inter alia reinstatement of his appeal which had been dismissed. The ground upon which the appellant relied on in support of his application is that he failed to attend the hearing on 5/5/2008 because he had erroneously confused he date for the haring as 6/5/2008 as opposed to 5/5/2008. The respondents opposed the said application and contended that the appellant was present when the appeal was fixed for hearing on 5/5/2008 and that he also endorsed his signature against the said date on the court’s records. The High Court dismissed the application on the grounds that the appellant was present when the appeal was fixed for hearing on 5/5/2008 and that he endorsed his signature on the date fixed for hearing the appeal. The appellant then filed an appeal in the Court of Appeal who reinstated the appellant’s appeal in the High Court. It is against this background that the appellant filed his appeal based the grounds aforementioned.

8. Parties were directed to canvass appeal via submissions but only appellant submissions appear on record.

APPELLANT’S SUBMISSIONS

9. Through his written submissions dated 11/2/2021 the appellant averred that it was evident that he was a tenant at Plot No. 912 Ziwani Estate and that there were existing disputes between the respondents and the appellant prior to the assault and illegal eviction. In his testimony he testified that on the material day, the respondents invaded his house and began assaulting and forcefully evicting him. According to him his evidence is corroborated by the testimony of witness DW-2 who testified that he personally witnessed the respondents chase the appellant and evict him from the plot.

10. The appellant averred that the respondents’ contention that he was assaulted by third parties is not supported by any evidence. He maintained that the learned magistrate’s assumption that the appellant properties were stolen by third parties and not the respondent and that he was assaulted by strangers despite his and DW-2 evidence showed the trial magistrates biasness in assessment of the evidence.

11. The appellant submitted that the respondent orchestrated the assault and forceful eviction on him resulting to bodily injuries and loss of property. He submitted that the said illegal acts were aimed at frustrating the outcome of the business tribunal decision. Her relied on the case of Mureu vs. Karuga (1996) and Eastern Radio Service & Another vs. R.J. Patel T/A Tiny Tots & Another. The appellants concluded that the lower court’s order dismissing the suit was a wrong exercise of jurisdiction and that his appeal has merits and should be allowed.

ANALYSIS

12. In the discharge of the mandate of evaluating the appeal placed before the court, it is the duty of this court to review the evidence afresh, reassess and reconsider it and make its own conclusion on it. The court should however bear in mind that it did not see the witnesses testify before the trial court and give allowance for this.

13. In Nkube v Nyamiro[1983] KLR 403, the Court of Appeal held that:

“A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”

14. Section 78 of the Civil Procedure Act which espouses the role of a first appellate court which is to:‘…… re-evaluate, reassess and reanalyze the extracts of the record and draw its own conclusions.’ The duty is further supported by the case ofPeter M. Kariuki –vs- Attorney General [2014] eKLRthe court held inter alia as follows:-

“We have also, as we are duty bound to do as a first appellate court [to] reconsider the evidence adduced before the trial court and re-evaluate it to draw our own independent conclusions and to satisfy ourselves that he conclusions reached by the trial judge are consistent with the evidence.”

15. Moreover, In the case ofPeters V Sunday Post Limited [1958] EA 424the Court stated as follows:

“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial Judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide…”

16. First and foremost, the appellant asserted that the learned magistrate erred in law and fact by holding that the respondent’s evidence was reliable when in fact he failed to bring his judicial mind on why the appellant was being beaten by neighbors and arrested by the police on a complaint by the respondents. Having gone through Nyahururu Principal Magistrates Criminal Case No. 3253 of 1997, the court exonerated the defendants, (now respondents herein) from the claim that they assaulted the plaintiff (the appellant herein). The court found that the latter was assaulted by a crowd of people and acquitted the respondents. I agree with the trail magistrate’s finding that any person in the crowd of people could have taken the appellant’s items. Having thoroughly perused the record on DW-2’s testimony I find no evidence of the same as corroborating the appellant’s submission of assault by the respondents.

17. Moreover, The Black's Law Dictionary 9th Edition, page 130 defines ‘assault’ as follows:-

a) “Assault, n 1. Criminal and tort law. The threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery.

b) 2. Criminal law. An attempt to commit battery, requiring the specific intent to cause physical injury -

c) Also termed (in senses 1 and 2) simple assault; common assaulting

d) 3. Loosely, a battery.”

18. DW-3’s testimony as relied on by the appellant that he saw the respondents chase the appellant does not in itself amount to assault as per the above definition.

19. Consequently, the appellant averred that the learned magistrate erred in law and fact in failing to direct his mind to the period the appellant won his case before the tribunal and the time he was assaulted by the respondents. The said tribunal case filed by the appellant in the Business Premises Tribunal at Nyahururu being Tribunal Case No. 13 of 1997 wherein the respondents were restrained by the tribunal from evicting the appellant from the said premises which decision was set aside by the tribunal. The appellant failed to prove how the said win directly caused the respondents to assault him and in any case the arresting inspector confirmed that the appellant was using the premises for residential purposes and not for business.

20. The appellant submitted that the learned magistrate erred in law and fact in regarding a report from the rent inspector when the said inspector was not called to adduce evidence on the report. However, the Rent Inspector, J. Mwiraria in his report (marked as exhibit 2 in the trial court)stated that he visited the suit premises on 29/8/1997 accompanied by the landlord and the tenant. He confirmed the tenant had indeed rented the 3 rooms as residential and not business premises. He particularly stated that there were no shop goods in the first room which use to be shop before being converted into a residential room. Moreover, in his testimony DW-2 confirmed the same in his testimony in which he maintained that the premises in question was not operating as a business but there was a shop that was not being used.

21. I fully agree with the trial magistrate that the evidence as it stands falls short of proving the appellant’s case against the respondents on a balance of probabilities.

CONCLUSION

22. Thus the court finds no merit in the instant appeal and thus makes the following orders;

i. The appeal is hereby dismissed.

ii. In the circumstances and history of this matter I order Parties to bear their own costs.

Dated, Signed and Delivered at NYAHURURU this 13thday of May, 2021.

………………………………..

CHARLES KARIUKI

JUDGE