[2022] KEHC 14015 (KLR)

Kariuki v Ngunjiri & another (Civil Appeal 60 of 2019) [2022] KEHC 14015 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14015 (KLR)

Republic of Kenya

In the High Court at Nyeri

Civil Appeal 60 of 2019

JN Njagi, J

October 19, 2022

Between

Beatrice Wanjiku Kariuki

Appellant

and

Julius Mutahi Ngunjiri

1st Respondent

Tabitha Wanjiku Mutahi

2nd Respondent

(Being an appeal from the judgment and decree of Hon. H. Adika, PM, in Nyeri CM`s Court Civil Case No. 246 of 2018 delivered on 23/9/2019)

Judgment

1. The appellant instituted a suit against respondents at the lower court claiming that they jointly and severally owed her a sum of Ksh162,000/= having advanced them a sum of Kshs 212,600/= wherein they had paid a sum of Ksh 50,600/= leaving a balance of Ksh 162,000/=. The respondents denied the claim. The trial magistrate ruled that the appellant had not proved that there was any money owed to her by the respondents. Being aggrieved by the determination, the appellant filed the instant appeal.

2. The grounds of appeal are that:(a)The learned magistrate erred in law and fact in failing to enforce the debt/ loan agreement dated October 6, 2017 between the appellant and the respondents which was an admission of the appellant`s oral claim against the respondents and of which the terms of repayments were partially honoured by the respondents on February 28, 2018. (b)The learned magistrate erred in law and fact in applying judicial notice in matters not pleaded by the respondents, thus yielded to amending the respondent`s pleadings and required expert evidence in arriving to the conclusion that the signature in the subject agreement dated October 6, 2019 and the one in the verifying affidavit were not made by the same person.(c)The learned trial magistrate erred in law and fact in failing to find that the appellant did not use force to coerce nor did the appellant initiate the process of involving the police but the respondents based on their own reasons.(d)The learned magistrate erred in law and fact in ignoring the appellants submissions.(e)The learned magistrate erred in law and fact by exercising the discretion afforded in law by unfairly dismissing the plaintiff`s claim and awarding costs to the respondents.

3. The appellant prayed that the appeal be allowed, the judgement of the lower court be set aside and that she be awarded general damages and costs of the appeal.

4. The brief facts of the case are that the respondents are husband and wife respectively. That sometimes back on a date the appellant could not remember, the respondents approached her and asked her to lend them a sum of Ksh212,600/= to enable them meet some urgent family need. The appellant gave them the money. Thereafter the respondents made a complaint against the appellant over the money at Gatitu police station. On the October 6, 2017 the parties went to Gatitu police station. The respondent entered into a written agreement, Pexh 1, with the appellant acknowledging that they owed her a sum of Ksh 212,600/= which they offered to refund on February 28, 2018 when the 1st respondent was expecting to receive his retirement benefits. On the February 28, 2018 the 1st appellant paid a sum of Ksh 50,600/= and remained with a balance of Ksh162,000/=. He wrote another agreement offering to clear the balance in monthly instalments of Ksh50,000/= starting from March 31, 2018 until payment in full. The respondents did not pay as agreed and the appellant filed suit.

5. In their written statement of defence the respondents denied that the appellant had advanced them a loan of Ksh 212,000=. They averred that the alleged agreement was signed under duress and coercion inside the Gatitu police post cells where the appellant had them locked up in a bid to have them admit their indebtedness to her.

6. In his evidence in court the 1st respondent admitted in cross-examination that he paid Ksh 50,000/= on the February 28, 2018. He however said that he signed the agreement because there was a threat to lock them up.

7. The trial magistrate in his judgment dismissed the appellant`s case on the ground that the agreement the appellant was relying on was dated October 6, 2017 which was written at the police station indicating that there was an existing debt of Ksh 212,000/= The magistrate questioned why there was no agreement which advanced the debt. The magistrate further questioned why the agreement that acknowledged the debt was written at the police station when it was a civil debt. The magistrate found that the respondents were intimidated into admitting the debt.

Determination 8. This being a first appeal the court is guided by principles that were re-stated by the Court of Appeal in Thomas Nyawade v Richard Sule Odongo & 4 others (2015) eKLR that:The principles guiding the determination of appeals are now well settled. In a first appeal like this one, the appellate court is obliged to take the appeal as a re-trial. As such, it is required to re-evaluate the evidence on record and come to its own conclusions Selle & Another v Associated Motor Boat Co Ltd & Others [1968] EA 123. In doing so, however, the first appellate court should give allowance for the fact that as the trial court had the advantage of seeing and hearing the witnesses testify, it was better placed to observe their demeanour and assess their credibility. In the circumstances, the appellate court should be slow to overturn the trial court’s decision unless the trial court’s decision is perverse or is not based on the evidence or is based on a misapprehension of the evidence on record. Mwanasokoni v Kenya Bus Services Ltd, [1985] KLR 931.

9. The issue for determination is whether the trial court was right in holding that no money was owed to the appellant.

10. According to the agreement, Pexh 1, the debt of Ksh 212,600/= was acknowledged at Gatitu police station on the October 6, 2017 which was after the respondents had reported at the police station that the appellant had used abusive language on them. In the agreement the respondents offered to settle the debt by February 28, 2018 upon the 1st appellant receiving his retirement benefits. Subsequent to the first agreement the parties entered into another agreement on the February 28, 2018 on the reverse page of Pexh 1 whereby the respondents paid a sum of Ksh 50,000/= and offered to settle the balance in monthly instalments of Ksh 50,000/= starting on March 31, 2018.

11. The trial magistrate dismissed the agreement, Pexh 1, on the basis that it was made at the police station and that it only acknowledged the existence of the debt but there was no initial agreement when the money was advanced. The magistrate concluded that the agreement was made as a result of intimidation on the appellants by policemen. He further held that a casual look at the signature on the verifying affidavit and on the agreement would show that they were not signed by the same person.

12. Let me start by defining what a contract is. The Court of Appeal in the case of William Muthee Muthami v Bank of Baroda (2014) eKLR observed that: -‘In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the party in breach.’

13. In the case of Rose and Frank Co v J R Crompton & Bros Ltd (1923) 2 KB 293, Atkin, LJ stated that: -‘To create a contract there must be a common intention of the parties to enter into legal obligations, mutually communicated expressly or impliedly.’

14. In this case the respondents lodged a complaint with the police that the appellant had used abusive language on them. It appears that when the appellant went to the police station the parties reconciled over the issue wherein the respondents admitted owing the appellant some money and made an offer to pay it by February 28, 2018. Come that date they paid Ksh 50,000/=.

15. Article 152 (2) of the constitution of Kenya 2010 allows parties to settle disputes through reconciliation. The first agreement in this case was entered into on October 6, 2017 and the next one on February 28, 2018. There was a period of 4 months between the making of the first agreement and the second agreement. If the admission of the debt in the first agreement was made out of coercion at the police station, why did the respondents agree to go back to the police station on the appointed date and made payment in furtherance of the first agreement? If the agreement was made out of coercion and intimidation, why didn’t the respondents report the matter to higher authorities so that action could be taken on the police officers at Gatitu police station for coercing them to admit a civil debt?

16. In my own assessment of the evidence, I find that the trial magistrate was wrong in holding that the agreement was made out of coercion. It is the respondents who took the matter to the police and not the appellant. There was nothing wrong with the parties reconciling at the police station. The finding by the magistrate that the appellant`s signature on the subject agreement was different from the one in her replying affidavit was a misdirection on the part of the magistrate as the issue did not come up during the hearing. In any case, the execution of the agreement was not in dispute as the appellants were admitting to have signed it. All they were saying is that it was made out of intimidation which was not the case. It is my finding that the agreement of October 6, 2017 was a legally binding contract. The fact that there was no initial agreement when the money was advanced does not make the agreement of October 6, 2017 non-binding. The respondents in the said agreement acknowledged to owe the appellant Ksh 212,600/=. They paid a sum of Ksh 50,600/= and remained with a balance of Ksh162,000/=. In my view the appellant had proved her case against the respondents on the required standard of a balance of probabilities. The trial court erred in dismissing the claim. There was however no basis for the claim on general damages in this appeal as it was not part of the claim at the lower court.

17. The upshot is that the appeal herein is merited. The judgment of the trial court is thus set aside and the appeal allowed (safe for general damages) with costs to the appellant.

SIGNED THIS 14TH DAY OF SEPTEMBER 2022. J. N. NJAGIJUDGEDELIVERED, DATED AND SIGNED AT NYERI THIS 19TH DAY OF OCTOBER, 2022. ByHON. JUSTICE M. MUYAJUDGEIn the presence of:Absent: for AppellantKimunya: for RespondentsCourt Assistant : Kinyua.30 days R/A.