[2021] KEHC 9608 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

(CORAM: A.K. NDUNG’U)

CIVIL APPEAL NO. 27 OF 2020

KENYATTA OBEGI......................................................................................1ST APPELLANT

JAMES NYABUTO OBEGI........................................................................2ND APPELLANT

VERSUS

SEBASTIANO OINO MOGUSU......................................................................RESPONDENT

(Being an appeal from the Judgement and Decree of Hon. D. Mikoyan SPM

dated 10th February 2020 in Ogembo Civil Case No. 262 of 2018)

JUDGEMENT

1. This is an appeal against the judgment and decree of Hon. Mikoyan delivered on 10th February 2020 in Ogembo Civil Case No. 262 of 2018. The learned magistrate allowed the respondent’s suit wherein the the following orders had been sought;

a. Payment of a liquidated sum of Kshs. 138,275/=;

b. Interest of (a) above from the time the crops were damaged;

c. Costs of the suit; and

d. Any other relief that this Honorable (court) may deem fit to grant.

2. This being a first appellate court, I will remind myself of the duty of this court which is to analyze the evidence afresh and reach its own conclusion bearing in mind that this court did not have the benefit of seeing the witnesses testify. (See Selle v Associated Motor Boat Company Ltd. [1968] EA 123).

3. The respondent’s case in the trial court was predicated on the claim that the appellants had damaged his tea and coffee plantations, maize, mature bananas, suckers, beans, groundnuts, sweet potatoes and cassava between 12th and 14th April 2016. He reported the matter to the police and the appellants had been charged and convicted for malicious damage vide Ogembo SRM Criminal Case No. 947 of 2016. He also sought a crop damage assessment report and the value of the destroyed crop had been assessed at Kshs. 138,275/=.

4. The respondent averred that he had planted the crops on land he purchased from the appellants’ brother, Nyakioma Obegi in the year 1975. He stated that although he had not obtained a title deed, he had commenced succession proceedings jointly with the appellants.

5. The appellants filed a joint statement of defence refuting the respondent’s claim. Their case was that the alleged purchase of land by the respondent was void, since their brother Nyakioma Obegi had no land he could lawfully sell and transfer to the respondent. The appellants also averred that the criminal case against them was based on false allegations made by the respondent and that in any event, the criminal case had no bearing on the matter before the trial court. They also denied that any assessment report had been made as claimed by the respondent.

6. At the hearing of the matter the respondent largely reiterated the averments made in his plaint. He also adopted, as his evidence, the documents attached to his list of documents including the crop damage assessment report, a copy of judgment and certified court proceedings in Ogembo Criminal Case No. 947 of 2016. When asked to produce documents to prove ownership of the land, he stated that he did not have them in court.

7. The 1st appellant similarly reiterated the averments made in statement of defence at the hearing of the matter. He maintained that the respondent had no land and dismissed the claim that they had destroyed any farm crops as alleged. He adopted as his evidence, the documents contained in the defendants’ list of documents including letters written by the Chief Getenga location, court proceedings and pleadings relating to Succession Cause No. 16 of 2013 and a letter from the Principal Magistrate’s court Ogembo to the D.C.I.O. Nyamarambe.

8. Upon receiving the evidence from the parties, the trial court found the appellants liable for damaging the respondent’s crops as held in Ogembo Criminal Case No. 947 of 2016. On the issue of ownership of the land, the court held that that was a question for determination in other proceedings. The trial court also found that the crop assessment report was not contested and thus entered judgment in favor of the respondent.

9. The appellants filed a memorandum of appeal on 4th March 2020 setting out 18 grounds of appeal against that decision of the trial court.

10. Directions were taken to dispose of the appeal by way of written submissions. The appellants’ counsel argued all grounds of appeal collectively in his written submissions filed on 18th November 2020. The respondent’s counsel also filed written submissions on 2nd December 2020.

11. I have duly considered the parties’ submissions as well as the memorandum and record of appeal, the proceedings and the impugned decisions. I find that the issues arising for determination in this appeal are;

a. Whether the trial court erred by failing to determine the issue of the ownership of the subject land;

b. Whether the court erred by relying on the criminal case without making its own evaluation of the matter; and

c. Whether the crop assessment report was contested and whether it was faulty for not indicating the particulars of the land thereby affected.

ANALYSIS AND DETERMINATION

12. On the first issue, the appellants urged that the trial court had erred in finding that the issue of ownership of the land had not been pleaded yet the issue had been raised during the hearing of the case. They argued that that it was not necessary for the question of land ownership to be pleaded for the court to determine the issue.

13. The 1st appellant testified that the land in question was the property of his late father. He insisted that his father never sold the land and referred the court to Ogembo Succession Cause No. 16 of 2013 in respect of his deceased father’s estate. The appellants’ counsel contended that it was clear from the evidence that the respondent had no title to the land and he therefore had no crops which, in law, could be said to have been damaged by the respondents or any one for that matter.

14. On the other hand, the respondent’s counsel, argued that the issue of the ownership of the land was not raised in the parties’ pleadings and was not relevant in the determination of the matter. He relied on the cases of Stephen Njoroge Kariuki vs Republic [2009]eKLR, Patrick Kaburu vs Republic [2005]eKLR and Simion Kiana Ndiangui vs Republic Criminal Appeal No. 92 of 2013 in support of his submissions that the lack of proof of ownership of land on which property is damaged is not a sufficient defence to a charge of malicious destruction to property.

15. In the impugned decision, the learned magistrate held that the issue of ownership of land was the subject matter of other proceedings and had not been pleaded for determination in the case before him. In my view, this finding by the trial court was well founded as none of the parties sought orders or a declaration on the title to the subject land. As held by the Court of Appeal in the case ofDavid Sironga Ole Tukai V Francis Arap Muge & 2 Others Civil Appeal No. 76 Of 2014 [2014] eKLR, it is not open for a court to grant a remedy, which has not been pleaded or applied for by the parties.

16. The respondent’s case is that he had purchased the subject from the appellant’s brother one Nyakioma Obegi. That sale is challenged by the appellants. It is, however, not contested that, the respondent was in occupation of the land and had planted crops thereon which crops were damaged by the respondents.

17. While I discern the ingredients of a land dispute between the parties, the fact that the respondent had planted crops on the land he purchased from Nyakioma Obegi (lawfully according to him) was a fact that was proved at trial. It is worthy of note that even the appellants’ claim to the land has not itself crystallized as their claim to the land has not been resolved by a competent court or authority.

18. As things stand and before the controversy is ventilated in the proper forum, the appellants’ claim to the land ranks no higher than that of the respondent. The mere existence of a dispute over the land was not a carte blanche for the appellants to damage the crops planted by the respondent. The open legal path was for the appellants to prosecute their claim to the land to its logical conclusion and if successful acquire the rights to evict the respondent.

19. The other key issue raised by the appellants concerned the reliance by the trial court on their conviction in Ogembo Criminal Case No. 947 of 2016. The appellants’ counsel urged this court to quash the appellants’ conviction in the criminal case for the reason that the case had not been proved beyond reasonable doubt as required in law. Counsel faulted the trial court for merely relying on the criminal case and failing to make its own evaluation of the matter. He argued that if the trial magistrate had considered and evaluated all the evidence on record, he should have dismissed the respondent’s case.

20. The applicable provision of the law is Section 47A of the Evidence Actwhich deals with the effect of a conviction by a court in criminal proceedings. The provision stipulates;

47 A. A final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence as charged.

21. In the case of Philip Keipto Chemwolo & another v Augustine Kubende Civil Appeal 103 of 1984 [1986] eKLRPlatt JA held as follows on the foregoing provision of the law;

It was correct for the learned Judge to refer to the conviction because section 47A of the Evidence Act (Chapter 80) declares that where a final judgement of competent court in criminal proceedings has declared any person to be guilty of criminal offence, after expiry of the time limited for appeal, judgement shall be taken as conclusive evidence that the person so convicted was guilty of that offence.

22. I am further guided by the decision of the Court of Appeal in the case of Transmara Sugar Company v Daniel Nyabuto Momanyi [2020] eKLR where the respondent had similarly been convicted in a previous suit for destroying the appellants crops. Makhandia JA held;

The appellant strenuously urged that the learned judge erred and ignored the lease agreements that were tendered in evidence and that the judge ignored the commencement and termination dates of the lease agreements. The presence or absence of a lease agreement was not an issue for determination as per the pleadings filed before the trial court. Lease or no lease, a person has no right to unlawfully damage the property of another.

…

On the issue of vicarious liability, I have examined the record and am satisfied that the Kilgoris Criminal Case No. 154 of 2011 settled the issue that the accused person (Samwel Ntalamia Olonana) was an agent for the appellant company.The fact that no appeal was preferred against the conviction and sentence in the criminal case means that the finding of the criminal court remains as the true factual position. [Emphasis added]

23. I have considered the court proceedings and judgment in Ogembo Criminal Case No. 947 of 2016 which were produced before the trial court. In that matter, the appellants were charged, convicted and sentenced to pay a fine of Kshs. 20,000/= for the offence of cutting down crops of cultivated produce contrary to section 334 of the Penal Code in Ogembo Criminal Case No. 947 of 2016. The particulars of the offence were that on diverse dates between 11th and 14th April 2016 at Bosanga Sub location in Gucha South Sub-County within Kisii County, they jointly, willfully and unlawfully cut crops of cultivated produce namely coffee, tea, bananas, cassava, sweet potatoes and ground nuts all valued at Kshs. 138, 275/= the property of Sebastiano Oino Mogusu.

24. The appellants’ did not prefer an appeal against their conviction in Criminal Case No. 947 of 2016 and cannot purport to challenge that decision in the present appeal. It cannot also be said that the trial magistrate erred for relying on the conviction of the appellants in the criminal case as he was empowered to do so based on section 47A of the Evidence Act.

25. Lastly, the appellants challenged the crop assessment report relied on by the respondent to prove special damages. They argued that the crop damage assessment report was defective as it did not bear the parcel number or indicate the name of the owner of the land.

26. The crop assessment report dated 22nd April 2016 was prepared by a ward-agriculture extension officer who assessed the damage of the respondent’s crops including tea and coffee bushes, maize, bananas, beans, groundnuts and sweet potatoes at Kshs. 138,275/=. The report was made in April 2016 a few days after the respondent’s crops were damaged. It was produced in both the criminal court and the trial court without objection from the appellants on account of not having a plot number. Based on their defence before the trial court that the respondent was not entitled to the subject land, the report could not have been taken to pertain to any other land other than the land in question. (SeeStephen Munge Kenteha V David Leshoo Kenteyia & 3 Others Civil Appeal No. 120 Of 2010 [2011] eKLR)

27. A holistic assessment of the facts shows that the respondent proved on a balance of probabilities that the appellants damaged his crops worth Kshs. 138,275/=.I find no reason to interfere with the trial court’s finding.

28. This appeal is found to be lacking in merit. It is hereby dismissed with costs to the respondent.

DatedandDeliveredat Kisiithis26thday ofJanuary, 2021.

A. K. NDUNG'U

JUDGE