[2022] KEHC 15927 (KLR)

Kibe v Kenya Credit Traders Limited (Civil Appeal 27 of 2013) [2022] KEHC 15927 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15927 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal 27 of 2013

AN Ongeri, J

November 11, 2022

Between

David K. Kibe

Appellant

and

Kenya Credit Traders Limited

Respondent

(Being an Appeal from the Judgment and Decree of Hon. M. I. SHIMENGA (RM) in Kericho PMCC No.493 of 2005 delivered on 25/7/2013)

Judgment

1. The respondent filed a preliminary Objection dated 30/8/2017 against this appeal on the following grounds:-i.That the Appeal was lodged out of time, as Judgment in the subordinate Court was delivered on the July 25, 2013, whilst the Memorandum of Appeal filed on the August 28, 2013, Contrary to section 79G of the Civil Procedure Act which provides for thirty (30) days within which an Appeal ought out to be filed.ii.That the Respondent was not served with the said Memorandum of Appeal in time as provided for under Order 42 Rule 12 of the Civil Procedure Rules, 2010, and was only made aware of the said Memorandum after service of the Record of Appeal, in which is contained Memorandum, on the January 12, 2017. iii.That it is a requirement, under the order 42 rule 13(1) that the appeal should be listed for directions, by the Appellant, not less than twenty one (21) days after service of the Memorandum of Appeal, a time limit which has not been met.iv.That issuance of directions would be premature without the appellant’s compliance with order 42 rules 11 and 12 of the Civil Procedure Rules (2010).v.That the Respondent therefore brings this Preliminary Objection before this Court under the ambits of order 42 rule 13 (2).vi.That the appeal is improperly instituted, incompetent and an abuse of court process.

2. The Appellant served the record of appeal and filed submissions both in the Appeal and the Preliminary Objection dated 9/11/2018.

3. The Respondents also filed submissions in both the Preliminary Objection and the Appeal.

4. The Appellant’s Appeal arose from Kericho PMCC No 493 of 2005 delivered on 25/7/2013.

5. The Appellant who was the Plaintiff in Kericho PMCC 493 of 2005 filed the suit against the Respondents seeking special damages and costs of the suit. The special damages were in respect of goods carted away by the Respondents from the Appellant’s shop on allegation that the Appellant had taken goods from the Respondent on credit.

6. The Respondents filed a defence and counter-claim against the Appellant in the Trial Court for Kshs 43,460/= being the balance in respect of hire purchase items for which the appellant had defaulted in making monthly instalments.

7. The Appellant’s evidence was as follows: - that he used to own a video library and video show and hire cassettes. That on the 14th of April, 2005, he had gone on a safari and had left his store with an employee. That later on the same day, somebody rung him and told him that people had entered his shop and were removing items. He stated that he returned to Kericho, and found his shop cleared, and all his goods had been taken by Kenya Credit Traders. The appellant stated that he had been their customer for long, and that he had been buying their items on credit. He stated that he had taken a video machine from them at the time. The appellant stated that he went to inquire of the situation from the Kenya Credit Traders offices and he was informed to wait for communication from their headquarters in Nairobi. He stated that they never returned his items to date and that his business crumpled that day.

8. The Respondents evidence was also as follows: - that on diverse dates being the 5th and 22nd of June, 2004, respectively, David Kiarie Kibe, came and took two Panasonic Video Dec worth Kshs 19,380 on hire purchase. The respondent stated that it was part of the hire purchase agreements that he was to pay a sum of Kshs 1,030 per month for 17 months for each of the Panasonic Video Dec. it was the respondent’s evidence that the appellant made payments on the 1st Video Dec for a period of four months and then stopped, that when they followed up with him on the issue of payment, he would make promises that he would pay and later fail to make the payments as agreed. The respondent stated that as regards the 2nd Video Dec, the appellant only made payments twice and has never made any more payments on it, and as a result the balance on the 2nd Panasonic Video dec was Kshs 15, 560. The respondent stated that the appellant’s wife, Mary Chepkemoi again took another .G Video Dec worth Kshs 17,570 on hire purchase, whereby she was to make payments of Kshs. 930 per month for 17 months. He stated that payments were made on the L.G video Dec for a period of 3 months only and the outstanding balance on the same is Kshs 13,810. The respondent stated that when he asked the appellant to make payments, he informed them that he did not have money, and when he told him to bring back the goods, the appellant brought other goods aside from the Video Decs that he had been given.

9. The Trial Court dismissed the Appellant’s case and ruled that the Respondent repossession of the goods was lawful.

10. The Appellant who was aggrieved with the Judgment appealed to this court on the following grounds: -i.That the learned trial magistrate failed to consider the evidence of the plaintiff and evaluate the evidence of the defence such failure leading to miscarriage of justice;ii.That the learned trial magistrate awards such amount for unlawful termination contrary to the evidence and law;iii.That the learned trial magistrate misdirected himself in relying on the defendant story hence miscarriage of justice;iv.That the learned trial magistrate shifted the burden of disappointing the plaintiff’s case to the defendant whereas the plaintiff had the burden of prove in this case on the balance of probabilities at all times;v.That the learned trial magistrate decision was against the weight of evidence.

11. The Respondent filed a preliminary objection during the pendency of the appeal and the same will be considered together with the appeal. First I will consider the Preliminary Objection.

12. The parties filed submissions in the Preliminary Objection as follows: -On the preliminary objection the respondent submitted that the Memorandum of Appeal was lodged out of time, hence there is no competent appeal on record. It was submitted that the timeline prescribed for one to lodge an appeal from the subordinate court is provided for in section 79G of the Civil Procedure Act, and given that the appellant filed his appeal two days late, he is in violation of the mandatory provisions of section 79G of the Civil Procedure Act.

13. The respondent also submitted that the timeline for service of the Memorandum of Appeal is provided for under order 42 rule 12 of the Civil ProcedureRules which requires that a Memorandum of appeal be served seven days after the receipt of notice from the registry, on the contrary the appellant served the respondent on the 12th of January 2017 whereas the Memorandum of Appeal was filed on the 28th of August, 2013.

14. It was also submitted by the respondent that he was served with a Memorandum of Appeal on the 12th of January, 2017 and the appeal was set down for directions after 14 days only, that is on the 26th of January, 2017, which is in contravention of the requirements of Order 42 rule 13(1) of the Civil Procedure Rules and that the appellant did not serve the respondent with any notice of the mention scheduled for the 26th of January, 2017 for taking of directions.

15. It was submitted by the respondent that the deliberate and flagrant disregard of rules and mandatory requirements by the appellant has resulted in serious prejudice to the respondent and as a result the appellant does not qualify for the court’s indulgence.

16. The appellant submitted on the Preliminary objection as follows: -That the appeal was lodged on time, this is because although the judgement was dated the 25th of July, 2013, it was read to the parties on the 30th of July, 2013 as that is the date the learned Magistrate appended her signature.

17. It was also submitted by the appellant that the appeal has already been admitted by the court, and the Preliminary Objection is an attempt made after the court had already allowed the appeal. It was also submitted that courts are guided by the Judicial principles that allow sometimes for justice to be administered without undue regard to procedural technicalities as envisaged by article 159 of theConstitution of Kenya.

18. On the appeal, the appellant submitted that the learned trial magistrate did not adequately consider the submissions and evidence of both sides before pronouncing her judgement and that she instead formulated her own hypotheses and proceeded to answer them herself.

19. It was also submitted that the learned trial magistrate shifted the burden of proof to the respondent yet it is common law that in civil cases the burden of proof lies with the plaintiff who must prove their case on a balance of probabilities. It was also submitted that the learned magistrate readily bought the narrative sold by the respondents that they never entered the premises and confiscated the goods, thus proving that the learned magistrate had a pre-determined mind and this occasioned an injustice.

20. On the appeal, the respondent submitted that the judgement by the learned magistrate contains the evaluation of evidence of both sides including the evidence adduced by the two witnesses on behalf of the appellant.

21. The respondent also submitted that the learned magistrate made her determination in reliance with the evidence adduced before her, and the respondent was able to wholly dismantle the appellant’s case and the same was captured in the trial magistrate’s judgement. It was submitted that the evidence produced by the respondent was unchallenged while the appellant failed to discharge his legal burden of proving the allegation that the respondent had indeed raided his shop and carted away his good or prove that he had satisfied his indebtedness to the respondent.

22. It was the respondent’s submission that the appellant has merely made unsubstantiated allegations of faults in the learned magistrate’s decision without accepting that he is the one who failed to prove his case on a balance of probabilities and the same led to a decision against him.

23. This being a first Appeal, the duties of the 1st Appellate Court are to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions bearing in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.

24. This position was stated in the Court of Appeal case of Abok James Odera t/a AJ Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR, where the court pronounced itself as follows:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

25. The issues for determination in this appeal are as follows:-i.Whether the preliminary objection has merit.ii.Whether the Appellant proved his case to the required standard.iii.Whether the Appeal should be allowed.

26. On the issue as to whether the Preliminary Objection has merit, I find that it is not in the interest of Justice to terminate matters on technicalities in view of article 159 (2)(d) of theConstitution which states as follows: -“Justice shall be administered without undue regard to procedural technicalities.”

27. Mativo, J (as he then was) in Gitau v Kenya Methodist University (KEMU) (Petition 5 of 2020) [2021] KEHC 322 (KLR), stated as follows: -“Whatever definition we adopt, courts are constitutionally obligated to adopt an approach which prefers determination of cases on merits as opposed to procedural technicalities. Simply put, to be preferred is an approach that places emphasis on merits as opposed to undue technicalities.”

28. In David Bundi v Timothy Mwenda Muthee [2022] eKLR; the court stated that: -“The primary duty of the court is to do justice and that duty cannot be fettered by procedural technicalities. TheConstitution under article 159 on judicial authority has urged courts to do justice without undue regard to procedural technicality.”

29. I find that the preliminary objection has no merit and I accordingly dismiss it with no orders as to costs.

30. On the main appeal, the first issue is whether the appellant proved his case on a balance of probabilities, I find that the Trial Court relied on the evidence on record.

31. The record is clear that the Trial Court evaluated the evidence in its lengthy Judgment and found that the appellant did not prove his case.

32. I find that the Appellant merely made unsubstantiated allegations of faults in the learned magistrate’s decision without accepting that he is the one who failed to prove his case on a balance of probabilities and the same led to dismissal of his suit.

33. I find that there was no miscarriage of Justice. It is not the duty of the Court to rewrite contracts between parties.

34. I find that the Appeal herein lacks in merit and the same is dismissed.

35. Each party to bear it’s own costs of the appeal.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 11TH DAY OF NOVEMBER, 2022. A. N. ONGERIJUDGE