[2023] KEHC 26158 (KLR)

Korinko & another v Momanyi (Civil Appeal E004 of 2021) [2023] KEHC 26158 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26158 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Civil Appeal E004 of 2021

F Gikonyo, J

November 21, 2023

Between

Nicholas Leteya Korinko

1st Appellant

Samson Ntomia Korinko

2nd Appellant

and

Peter Morebu Momanyi

Respondent

(Being an appeal from the judgment and decree of Hon. R.M. Oanda (SPM) delivered on 05. 08. 2021 in Kilgoris SPMCC No. 11 of 2019)

Judgment

Impugned judgment 1. This appeal challenges the judgment of the Senior Principal Magistrate’s Court at Kilgoris in Civil Suit No. 11 of 2019 delivered on 05. 08. 2021. The trial court entered judgment for the respondent against the appellants and made the following orders;i.The defendants [appellants] to pay to the plaintiff [respondent] the principal sum of Kshs. 420,000/= (Four Hundred and Twenty), plus a further Kshs. 420,000/= as compensation for breach of contract, making a total of Ksh. 840,000/= (eight hundred and forty only).ii.No orders as regards to special damages.iii.Interest at court rates from the time the suit was filed till payment in full; andiv.Costs of the suit.

2. The memorandum of appeal dated 06. 09. 2021 cited ten (10) grounds of appeal as follows;i.That the trial magistrate erred in fact and in law in finding and holding that the respondent herein had proved his claim against the appellants to warrant the granting of the prayers sought, notwithstanding the fact that the evidence tendered by the respondent was at variance with and/ or contrary to the pleadings on record.ii.That the learned magistrate erred both in law and in fact in awarding the respondent the amount of Kshs. 420,000 plus a further Kshs. 420,000 as compensation for breach of contract making a total of Kshs. 840,000 on account of breach of contract, whereas the said amount had neither been claimed, pleaded nor proved whatsoever.iii.The learned trial magistrate erred in fact and in law in failing to ascertain whether the appellants had the legal capacity to enter into a lease agreement over LR NO. Transmara/ Shartuka/152. iv.The learned trial magistrate failed to appreciate the tenor and/or extent of the burden of proof and thereby misconceived the provisions of sections 107 and 108 of the Evidence Act, chapter 80 laws of Kenya.v.That the trial magistrate failed to address the issue of causation and thereby arrived at an erroneous conclusion contrary to the evidence on record.vi.That the learned trial magistrate erred in law in failing to consider, and analyze the evidence tendered by the respondent and thereby disregarding same without assigning any credible and/ or valid reasons whatsoever, consequently the decision of the trial magistrate has occasioned a miscarriage of justice.vii.The learned trial magistrate erred in law in believing and/ or acting on the evidence of the respondent without considering and taking into account the material and apparent discrepancies in the evidence tendered by the respondent.viii.The learned trial magistrate erred in fact and in law in failing to properly or at all analyze, evaluate, and consider the totality of the evidence (both orally and documentary), adduced by the respondent. Consequently, the trial magistrate arrived at a biased conclusion contrary to the evidence on record.ix.The judgement by the learned trial magistrate is unbalanced perfunctory, passionate, and substantially at variance with the evidence rendered by the respondent. Consequently, the judgment is wrought and/ or fraught with errors of facts and law.x.The judgment of the trial magistrate is contrary to the provision of order 21 rule 4 of the Civil Procedure Rules 2010. Consequently, the judgment of the trial magistrate ought to be impugned as is void.

3. In the end the appellants urged this court to allow the appeal; set aside, review, vary, and or quash the judgment and decree of the trial court dated 05. 08. 2021 vide Kilgoris SPMCC No. 11 of 2019; substitute an order dismissing the respondent’s suit; and the costs of this appeal and cost incurred in the subordinate court be borne by the respondent.

Summary 4. The dispute herein emanates from a lease agreement dated 26. 09. 2016 between the parties herein. On 26. 09. 2016, the parties herein entered into a lease agreement whereby the appellants purported to lease LR. NO. TRANSMARA/SHARTUKA/152 to the respondent for 5 years at a consideration of Kshs. 420,000/=.

5. The respondent filed suit before the magistrate court claiming that the aforementioned lease agreement had been breached. The respondent sought the following prayers;a.A declaration that the defendants compensates the plaintiff as per the lease agreement executed on the 26th September, by the parties herein in breach of the same.b.Mensne profit.c.Special damages as per paragraph,d.Cost of this suit and interest,e.Interest on a, b, c above at court rates.f.Any other further relief that this honourable court may deem fit and just to grant.

6. The appellants failed to enter appearance and interlocutory judgment was entered on 03. 05. 2019. The matter proceeded by way of formal proof on 18. 07. 2019. Judgment thereof was delivered on 01. 08. 2019.

7. The appellants filed an application dated 27. 08. 2019 seeking a stay of execution of the judgment delivered on 01. 08. 2019. Stay of execution was granted. On 17. 10. 2019, by consent, the application dated 27. 08. 2019 was allowed and throw away costs of Kshs. 10,000/= was paid to the respondent.

8. The firm of Leina Morintat Advocates filed an application dated 09. 09. 2020 to cease acting for the appellants. The application was allowed on 10. 09. 2020. The appellants proceeded with the matter unrepresented. The appellants were served with the hearing notice but they did not attend to participate in the matter. The respondent therefore proceeded with the matter and obtained judgment.

9. The trial court entered judgment in favour of the respondent and awarded him a total of Kshs. 840,000/= being the refund of the consideration amount and compensation.

Evidence 10. The respondent testified and did not call any witness while the appellants did not participate in the hearing of this matter.

11. PW1, Dr. Peter Morebu Momanyi relied on his statement dated 20. 03. 2019 produced as P Exh 1. he testified that on 26. 9.2016 he entered into a lease agreement with the appellants for a piece of land known as LR. NO. TRANSMARA/SHARTUKA/152 measuring 12 acres. He was to pay Kshs. 420,000/= for 5 years. He paid Kshs. 120,000/= on 26. 09. 2016 and a balance of Kshs. 300,000/= later. According to PW1, the appellants invaded the land on 15. 11. 2017 without notice and in breach of the agreement took over the land. He produced an agreement dated 26. 09. 2016 (P Exh 1) he produced a copy of the Mpesa statements, an agreement dated 31. 05. 2018, and a demand letter dated 28. 02. 2018 as P Exh 2, 3, and 4. He prayed for a refund of his cash and the costs of the suit.

Directions of the court 12. The appeal be canvassed by way of written submissions. Both parties filed their written submissions.

Appellants’ Submissions 13. The Appellants submitted that the trial court did not analyze and/ or evaluate the lease agreement as the same was irregular, illegal, and unlawful. The appellants contend that they did not have the capacity to enter into the said lease agreement. The said parcel of land is registered in the name of OLE KORINKO OLOMUYOKO who is deceased. Further, the appellants did not have letters of administration. The appellants relied on the case of Mediamax Network Ltd Vs William Momanyi & 2 Others [2022] eKLR, Maurice Ooko Otieno Versus Mater Misericordia Hospital [2004] eKLR, Law Society of Kenya Versus Commissioner of Lands & 2 Others [2001] eKLR, Alfred Njau & 5 Others Versus City Council Of Nairobi [1983] eKLR.

14. The appellants submitted that the decision of the trial court was irregular because the trial magistrate entered judgment against the appellants over the prayers that were not pleaded. Prayer (a) by the respondent did not indicate the year of the lease agreement. Further, prayer (c) in the plaint on request for special damages is incomplete. The appellants relied on the case Jane Njeri Nderi Versus Peter Njuguna Kabucho[2022] eKLR, Raila Amolo Odinga & Another Versus IEBC & 2Others [2017] eKLR, Swalleh Kariuki & Another Versus Violet Owiso Okuyu [2021]eKLR, Douglas Kalafa Ombeva Versus David Ngama [2013] eKLR.

15. The appellants submitted that the suit before the trial court was premature and ought to have been referred to an arbitrator or dismissed for being premature. The appellants contend that according to the lease agreement, the matter ought to have been referred to an arbitrator and the award would be final. The appellant relied on the case of Transmara Sugar Co. Ltd V Ben Kangwaya Ayiemba & Another [2020] eKLR, Nairobi Civil Appeal No. 224 Of 2017 Independent Electoral and Boundaries Commission Versus National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR.

The Respondent’s Submissions, 16. The respondent submitted that the lease agreement dated 26. 09. 2016 was proper and valid as all the formalities of a contract were adhered to and properly executed though the same was not registered. The respondent contends that the said lease agreement was enforceable between the parties who executed it. The respondent relied on the cases of Bachelor’s Bakery Ltd V Westlands Securities Ltd [1982] eKLR, and A.W. Rogan -Kamper V Robert Grosvenor [1977] eKLR.

17. The respondent submitted that the appellants had full capacity to enter into the impugned lease agreement as none of them possessed [sic] any incapacity to enter into the said lease agreement. The respondent contends that he engaged the appellants while they were in active possession of the said parcel of land. The appellants confirmed to the respondent that the said parcel of land belonged to their late father and they had had actually inherited the same from their late father but they were yet to regularize the registration details of the said parcel of land at the land registries. Further, the appellants willfully agreed to lease the said parcel of land and received monies from the respondent. The respondent argued that if indeed the appellants did not have the capacity to attest and/or execute the impugned lease agreement then it was incumbent upon them to disclose this information at the inception stages of making the lease as it was them who had this knowledge. The respondent relied on the case of Edward T. Kundu & 2 Others V Susan Chepkurgat Robinson [2007] eKLR.

18. The respondent submitted that the appellants breached the terms of the lease agreement by interfering with the peaceful enjoyment of the parcel of land for a period of 5 years. The respondent contends that the appellants without permission and consent of the respondent entered into the suit parcel of land and started cultivating while the impugned lease agreement was subsisting. The respondent reminded the appellants of their obligations and in the spirit of negotiations and arbitration, they appeared before the DCI offices in Kilgoris where the parties agreed that the appellant would refund the consideration of Kshs. 420,000/= as the appellants refused to perform their obligations as spelled out in the lease agreement. The respondent relied on the case of Bid Insurance Brokers Limited Vs British United Provident Fund [2016] eKLR.

19. The respondent submitted that he has established his case against the appellants and is therefore entitled to the reliefs awarded by the trial court. The respondent contends that he produced documents; lease agreement in dispute, demand letter, proof of payment of the consideration, and documents proving that he had indeed engaged the appellants fully before filing the suit before the trial court. Furthermore, it was a term of the agreement that a party defaulting on the terms of the lease agreement is obligated to pay the affected party an amount that is double the lease value.

20. The respondent argued that the appellants have not fully and successfully established their grounds for this court to interfere with the judgment and decree of the trial court. Therefore, the respondent urged this court to dismiss this appeal with costs to the respondent.

ANALYSIS AND DETERMINATION Duty of court 21. Section 78(2) provides that the appellate court shall have the same powers and shall perform nearly the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted herein.

22. As first Appellate Court shall evaluate the evidence afresh and make any of its own conclusions albeit bearing in mind did not have the opportunity of seeing or hearing the witnesses firsthand. See the case of Selle & Anor –Vs- Associate Motor Boat Co. Ltd 1968 EA 123.

Issues 23. From the appeal and the arguments presented, there are issues which are of preliminary treatment; technical objections. And, those which are substantive.

Technical objections 24. The appellants have sought dismissal of the suit. It is notable that the prayers (a) and (c) in the plaint are incomplete. The prayer in the plaint also carries an omission-year of the agreement is missing, but the lease agreement is said to be dated 26. 09. 2016 in the body of the plaint specifically paragraph 6. Such is a careless, but venial and pardonable omission. It is easily reconcilable by reading the plaint as a whole and also by reference to the material provided in the evidence adduced and documents produced. It is curable anomaly.

25. The court further notes that, contrary to the submission by the appellants, in paragraph 14 sub-paragraph 1 particulars of special damages have been pleaded.

26. Obeying a higher command; these objections are technicalities which were depreciated by article 159(2)(d) of the Constitution. Thus, the court declines the invitation to dismiss the plaint on those grounds.

Substantive Issues 27. The foundational transaction is a botched ‘contract for lease of land’. First reaction is that this ought to be an ELC matter. But, there is a mix of issues which straddle both jurisdictions- ELC and High Court- which brings in concurrent-jurisdiction-issues with its predicaments- making a little treat necessary.

Concurrent jurisdiction: distributional consequences 28. More problematic is judicial decisions in cases where different courts have concurrent jurisdiction, as may have wide distributional consequences on the other divide, which includes the potential of creating far greater injustice, such as routing of rights guaranteed in law through balancing of interests of parties.

29. A good illustration is; disputes relating to land which is also claimed as estate property. The decision by ELC or probate court (High Court) may have unintended consequences; the former may rout the rights of beneficiaries in the estate of the deceased; and the latter may affect a purchaser of estate land sold in contravention of the Law of Succession Act. Much debate is going on around this area of distributional consequences in the exercise of concurrent jurisdiction.

30. There are also other dilemmas in cases of concurrent jurisdiction. Determining which court should deal with the matter will attract; inter alia issues of use of force cases and predominant cause of action tests, will linger. Also questions of the applicable law will arise. And possibility of applying law of the other divide in the determination of some of the issues may also become a source of further distress.

Breach rather than enforcement of contract 31. Be that as it may, the justification given for assuming jurisdiction is that the foundational claim is one of compensation for breach rather than enforcement of an unlawful contract. See the pleading.

32. Another bait. The major argument by the appellants is that the suit property is estate property and thus, the appellants who were not holders of a grant of representation, did not have capacity of leasing the estate land. The decision of the court should turn on this point which has been ably argued by the parties.

33. Therefore, the major issue is: -Whether the appellants should be permitted to benefit or keep a benefit derived from their own wrongdoing?

34. It bears repeating that, the appellants argued that they had no capacity to enter into a valid lease agreement in respect of the estate property having not any grant of letters of administration of the estate of the deceased.

35. The respondent stated that the appellants were in actual possession of the land, and misrepresented to him that they had inherited the land from their late father.

36. The facts emerging are; the appellants entered into a lease agreement of estate land, received money under the purported agreement and the invaded the land and ejected the respondent. Yet, they seek to invalidate the agreement but keep the benefit.

37. This is a matter for Section 45 (1) of the Law of Succession Act which states: -‘Except as far as expressly authorized by this act, or by any other written law, or by a grant of representation under this act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.’

38. On acts that may amount to intermeddling with the property of the deceased in the sense of section 45 of the Law of Succession Act, see the case of Benson Mutuma Muriungi v C.E.O. Kenya Police Sacco & another [2016] eKLR where the court stated that: -“There is no specific definition of the term intermeddling provided in the Law of Succession Act. The Act simply prohibits taking possession of or disposing of, or otherwise intermeddling with, any free property of a deceased person by any person unless with the express authority of the Act, any other written law or a grant of representation under the Act. But in my understanding, the use of wide and general terms such as; “for any purpose’’ and “or otherwise intermeddle with’’ in the Act portends that the category of the offensive acts which would amount to intermeddling is not heretically closed or limited to taking possession and disposing of the property of the deceased. I would include in that category such acts as; taking possession, or occupation of, disposing of, transferring, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with existing lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act or any other written law. I do not pretend to close the list either or make it exhaustive. The list could be long. However, any act or acts which will dissipate or diminish or put at risk the free property of the deceased are acts of intermeddling in law.

39. Acts prohibited under section 45 of the Law of Succession Act are generally referred to as intermeddling and constitute criminal offence. Leasing of estate land is one such prohibited acts if done without express authorization by the law, or by a grant of representation under the Law of Succession Act.

40. The appellants did not have a grant of representation or any authority of law, but, willfully and knowingly entered into the lease agreement dated 26. 09. 2016 under which they purported to lease the estate property and received money from the respondent. This is an act of intermeddling with the property of Ole Korinko Olomuyoko (deceased).

41. They now pretend to bear or express great love for the law and wish to rely upon the law to ‘vindicate the law’; yet, the ominous intention is to derive and keep a benefit from their own wrongdoing. The law is never used to perpetuate a fraud. And the court should always suppress any stealth or overt dishonest contrivance.

42. From the evidence, the respondent is not seeking to enforce an illegal agreement. He is seeking compensation- a refund of the ‘lease’ consideration and interest- for the adverse consequences of unlawful conduct of the appellants. The appellants were personally at fault and thus the responsibility for wrongdoing (intermeddling with the estate property) was primary to them. In these circumstances, it will be most unjust to permit the appellants to derive or keep a benefit derived from their own wrongdoing. As long as the thrust of the appeal is founded on the appellants’ wrongdoing, it cannot be a basis to deny the respondent refund of money paid to the appellants pursuant to the offensive lease agreement.

43. The evidence show that the respondent proved his case on a balance of probabilities that he paid a sum of Kshs. 420,000 to the appellants pursuant to unlawful contract. Nevertheless, in the circumstances of the case, the respondent is entitled only to a refund of the money paid as rent with interest at court rates from the date of filing suit until payment in full. Judgment is so entered for the respondent. And, the judgement by the trial court is accordingly substituted. The respondent will also have costs of the lower court.

44. The appeal therefore partially succeeds. And on that basis, each party shall bear own costs of the appeal.

45. Orders accordingly.

DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH THE TEAMS APPLICATION, THIS 21ST DAY OF NOVEMBER, 2023. -----------------------------F. GIKONYO M.JUDGEIn the Presence of:1. CA – Leken2. Ochwangi for Appellant3. M/s. Ang’asa for Respondent - absent