[2019] KEHC 6400 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL APPEAL NO. 67 OF 2017

JASON ACHOCHI BONUKE........................................APPELLANT

VERSUS

JUDI ONSERIO.....................................................1ST RESPONDENT

DELPHINE NAFTA.............................................2ND RESPONDENT

RUDIAH MOGAKA............................................3RD RESPONDENT

OLYMPIC SELF-HELP GROUP.......................4TH RESPONDENT

(Being an Appeal from the Ruling of Hon. S.K. Onjoro SRM

in Kisii CMCC No. 67 of 2015 delivered on 3/11/2017)

JUDGMENT

1. The appellant, Jason Achoki Bonuke, appeals against the judgment of Hon. S.K. Onjoro dismissing his case against the respondent. He was the plaintiff before the subordinate court while the respondent was the defendant. I shall refer to the parties in their respective capacities before the trial court in this judgment.

2. The plaintiff filed a case before the Chief Magistrates Court averring that his wife Rose Kerubo Bonuke had a loan facility and had defaulted in her repayments, the amount due was Kshs 38,000/=. The Plaintiff alleged that the Defendants broke into the Plaintiff’s business seized his 2 sewing machines, clothes, materials, 2 television sets and household items valued at Kshs 115,000/= while the security for the loan facility were dairy cattle.

3. The Defendants filed their defense on 2nd June 2016 denying the plaintiff’s claim. It averred that in case there was seizure of property then the same did not belong to the Plaintiff. In the alternative the Defendants acknowledged that there was a loan facility taken up by the Plaintiff’s wife and guaranteed by the Plaintiff to and the Plaintiff was aware of the consequences of default.

4. When the matter was set down for hearing, the Plaintiff (Pw1) and Shadrack Nyaberi (Pw2) testified while the Defendants called Judith Kemunto Onserio (Dw1), chairman of the Olympic Self Help Group. As the first appellate court I am now tasked to re-appraise all the evidence and reach an independent decision bearing in mind that I neither saw nor heard the witnesses testify so as to be able to make a judgment on the demeanor (see Selle and Another v Associated Motor Boat Company Ltd [1968]EA 123).

5. Pw1 testified that the Defendants took 2 sewing machines, clothes, materials, 2 television sets and household items worth Kshs 115,000/-without telling the plaintiff and prayed that the same be returned to him. Pw2 testified that he saw two women remove items from a shop and gave the items to a women’s group. He told court that the items were placed in a different shop.

6. Dw1 testified that Rose Kerubo defaulted on a loan facility by Kenya Women Bank. The amount due was Kshs 53,000/- and the bank demanded that the Defendants pay the amount. She told court that it is the finance bank that took the security Rose Kerubo had committed.

7. After hearing the witnesses, the learned Magistrate concluded as follows:

“It is trite law that he who alleges must prove. I do not find that the plaintiff has proven that indeed the items attached from his business premises were not pledged as security. The Plaintiff neither provided any documentation nor called the person (his wife) who is said to have been advanced a loan by Kenya Women Finance Bank despite his wife being a person who could have shed clear light into his case. The plaintiff has not proven his case on a balance of probabilities and the plaintiff’s suit therefore dismissed with costs to the defendants.”

8. Following dismissal of the claim, the Plaintiff appealed against the judgment on the grounds set out in the memorandum of appeal dated 29th August 2017. The claim filed by the plaintiff is a civil suit and the standard of proof is on a balance of probabilities.

9. It was unchallenged that the plaintiff’s wife Rose Kerubo Bonuke had a credit facility with Kenya Women Finance Bank(“Bank”) and that Rose Kerubo Bonuke had defaulted in repayments to clear the loan. It was also not disputed that the Plaintiff was a guarantor. Having so established, it is also important for the court to determine the capacity of the Defendant in this transaction. The capacity of the defendants emerged during trial when Dw1 gave evidence as follows;

“The said Rose Kerubo defaulted in repayments of the loan. I do not know how she got the third loan of Kshs 150,000/-. She only paid half the amount leaving a balance of Kshs 53,000/-. We met as members and paid the Kshs 53,000/- as Kenya Women Bank demanded so.”

10. The Court of Appeal at Nyeri in the case of Robert Njoka Muthara & another v Barclays Bank of Kenya Limited & another [2017] eKLR observed as follows;

“23. A guarantee by definition is a pledge by a person (guarantor), other than a party upon whom the contractual or other legal obligation is imposed, to the effect that if the party so bound (principal) fails to perform the act in question, the guarantor, will either perform or make good any loss or claim arising from the non-performance. The pledge is ordinarily made to a creditor. The essence is that the guarantor agrees not to discharge the liability in any event, but to do so only if the principal debtor fails to honour his duty.”[Emphasis mine]

11. The actions taken by the Olympic Self-help Group, that is offsetting the loan, only prove that they were guarantors to the said Rose Kerubo Bonuke and it is in their capacity as guarantors that they decided to settle the balance of the loan amount. The question that this court is called to determine is whether it is indeed the Defendants who attached the Plaintiff’s goods after the loan had been discharged.

12. It is well established that 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 (section 107(1)of the Evidence Act).

13. It was not disputed that the goods of the Plaintiff were attached. However evidence by Pw1 was that ‘I have sued the defendants as they took my items and they did not tell me.’From his testimony it is unclear whether the Plaintiff was present when the goods were attached. The only direct witness therefore becomes Pw2 who was present when the goods were attached, he told court that; ‘I went to buy things from a shop and saw people removing items from a nearby shop. I saw two women removing items and giving it to another women group.’ Indeed he saw some women remove goods from the plaintiff’s shop. He neither identified those women as the defendants nor did he give evidence on which women group he was referring to.

14. In the circumstances, I am constrained to agree with the trial court that the Plaintiff failed to prove its case to the required standard that is on a balance of probabilities. The Appeal therefore fails and is dismissed with costs to the Respondents.

Signed, Dated and Delivered at Kisii this 26th day of April 2019.

R. E. OUGO

JUDGE

In the presence of;

Mr. Okenye For the Appellant

Respondent Absent

Rael Court clerk