[2022] KEHC 16278 (KLR)

Limuki v Mucheke & 2 others (Civil Appeal 22B of 2019) [2022] KEHC 16278 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16278 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal 22B of 2019

TW Cherere, J

December 15, 2022

Between

Kaberia Evans Limuki

Appellant

and

John Mbaya Mucheke

1st Respondent

Felix Mutua Mailu

2nd Respondent

Equity Bank Ltd

3rd Respondent

(Being an appeal from the judgement/decree in Meru CMCC NO. 121 OF 2017 by Hon. Lucy Ambasi (CM) dated 23rd January, 2019)

Judgment

1. This appeal arises from the judgment delivered on January 23, 2019 in Meru CMCC No 121 of 2017. The appellant herein was the plaintiff and he had sued the 1st, 2nd and 3rd respondents herein for orders for payment of the value of the lorry registration number Kxx xxxN isuzu fsr lorry as per the contract of December 6, 2016 or in the alternative, a refund of all the amounts spent on the lorry including costs of the insurance, damages for detinue, exemplary/punitive damages and damages for loss of income, costs and interests.

2. Interlocutory judgment was entered against the 1st, 2nd and 4th respondents and upon the court hearing the appellant and the 3rd respondent dismissed the appellants suit against the 2nd, 3rd and 4th respondents with costs and entered judgment against the 1st respondent for Kes 2 million.

3. Aggrieved by the decision of the learned trial magistrate, appellant filed this appeal on the February 20, 2019 setting out the following grounds: -i.The learned trial magistrate erred in law and fact by holding the 3rd respondent was not entitled to a refund of monthly payments of Kshs 144,000/= to the appellant.ii.The trial magistrate erred in law and fact by holding the appellant was not entitled to a refund of Kshs 204,456/= paid as insurance premiums.iii.The learned trial magistrate erred in law and fact by failure to award the appellant any general damages for detinue exemplary/punitive damages and damages for loss of income.iv.The learned trial magistrate erred in law and fact by failure to consider appellant submissions, evidence and give the same any consideration.v.The learned trial magistrate erred in law and fact by holding the same agreement entered between the appellant and the 1st respondent was illegal.

4. The appeal proceeded by way of written submissions, appellant in his submissions argues that the trial court erred in law and fact by failing to understand the evidence and the law placed before her and came to wrong conclusions.

5. Appellant states that upon entering into an agreement for sale of motor vehicle with the 1st respondent, he proceeded to pay Kes2,000,000/= as consideration and took over the repayment of the loan with the 3rd respondent which he religiously made. He argued that 3rd respondent having received and accepted the loan repayment and insurance premiums from appellant was bound to refund appellant all the monies paid and placed reliance on Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe &another [2015] eKLR.

6. Appellant proceeds to submit that having satisfied that a wrong was occasioned to him by the repossession, general damages for detinue, damages for loss of income and exemplary/punitive damages since repossession of the subject motor vehicle by the respondents was malicious since there was no default in repayment of the loan.

7. Finally, appellant contends that the trial magistrate failed to address all the issues presented in evidence thereby rendering a judgment that was insufficient and hence caused the appellant to suffer injustice.

8. On the issue as to whether the sale agreement between the 1st respondent and the appellant could be deemed as legal, 3rd respondent submits that the background of the matter was that the 2nd respondent entered into a loan agreement with the 3rd respondent and motor vehicle registration number Kxx xxxN isuzu fsr lorry was offered as a security for the same as confirmed by the letter of offer by the 3rd respondent to the 2nd respondent produced as dexh 1 at the trial court.

9. 3rd respondent argues that it co-owned the subject motor vehicle, and having not been party to its sale by 1st respondent to appellant, the sale was illegal and unenforceable against 3rd respondent.

10. Reliance was placed reliance section 23(1) of the Sale of Goods Act, cap 31 Laws of Kenya, the principles of nemo dat quod non habet which basically provides that the transferor of the goods cannot pass a better title than he himself possesses and on the Court of Appeal decision in Mapis Investment (K) LimitedvKenya Railways Corporation[2006] eKLR where it was stated that:“……..no court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the court ought not to assist him.”

11. As to whether the appellant was entitled to any refund or award from the 3rd respondent, 3rd respondent argues that that it was not privy to the contract of sale of the subject motor vehicle to appellant and was therefore not liable to refund any money.

12. 3rd respondent argues that contrary to appellant’s allegation, the repossession was lawful as the loan was in arrears as at the time of repossession and that payment of a comprehensive insurance cover over the motor vehicle was a condition of the agreement and the sum was therefore not refundable.

Determination 13. This being a first appeal, the role of this court is to re-evaluate and subject the evidence to afresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court also takes note of the fact that it did not have the benefit of seeing or hearing the witnesses testify and therefore has to make an allowance for the same. (See Selle v Associated Motor Boat Co [1986] EA 123 and Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] e KLR).

14. I have considered the grounds of appeal, record of appeal as well as the written submissions filed by respective parties. The major issue for determination before this court is to whether the agreement held by the appellant is legal and enforceable.

15. As rightly found by the trial court, the agreement for sale of the subject motor vehicle to the appellant was unenforceable for the reason that 1st respondent did not have a good title that he could pass to appellant. The trial court’s order that for Kes 2,000,000/- was recoverable from 1st respondent was in my considered view well founded.

16. The trial court having found that the agreement between the appellant and the 1st respondent was a nullity correctly found it that it was unenforceable as against the 2nd, 3rd and 4th respondents who were not privy to it for the reason that no burden should not be imposed on a third party without his consent.

17. Had appellant quantified the amount he paid on account of the loan, the same having been incurred on the misrepresentation by the 1st respondent that he had a good title to the subject motor vehicle might have been recoverable from 1st respondent.

18. For the reasons given on the foregoing analysis, I have come to the conclusion that the trial magistrate considered all the facts as presented by the parties and applying her mind to the law arrived at the correct decision. I therefore do not find any reasonable cause to interfere with the said decision.

19. In the end, i find that this appeal has no merit and it is dismissed with costs to the 3rd respondent.

DATED AT MERU THIS 15TH DAY OF DECEMBER, 2022. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellant - Maitai Rimita & Co. AdvocatesFor 1st Respondent - N/AFor 2nd Respondent - N/AFor 3rd Respondent - Mr. Kariuki for Mithega & Kariuki Advocates