[2022] KEHC 15406 (KLR)

Lintari v Nabea (Civil Appeal E123 of 2021) [2022] KEHC 15406 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15406 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E123 of 2021

TW Cherere, J

November 10, 2022

Between

Protasio Mwongela Lintari

Appellant

and

Moses Murianki Nabea

Respondent

(Being an Appeal from Judgement and decree in Meru CMCC 114 of 2019 by Hon. S.Abuya (CM) on 23d August, 2021)

Judgment

Background 1. By an agreement dated 21st February, 2017, Respondent sublet Appellant’s premises on 2nd to 4th floor on plot no. 3733 Makutano and thereon established a lodging business. The sub-lease was cancelled by an agreement between the parties dated 09th March, 2018 but Respondent did not collect his belongings when Appellant insisted he would purchase them but subsequently failed to pay for them. By a valuation report by Probity Valuers Ltd dated 24th April, 2018, the value of the property in issue was assessed as KES. 915,800/- which the Respondent claimed from the Appellant.

2. In his defence, Appellant conceded he retained Respondent’s goods upon termination of the sub-lease but urged that the value of the goods be off-set against KES. 603,000/- that Respondent owes him.

3. The learned trial magistrate after considering the evidence tendered by the parties found the Respondent’s claim proved and entered judgment against the Appellant for KES. 915,800/-, costs and interest

The appeal 4. Dissatisfied with the lower court’s decision, Appellant preferred this appeal by way of the Memorandum of Appeal filed on 06th September, 2021 setting out 8 grounds which I have summarized into five grounds that:1. The valuation report that the trial magistrate relied upon was not produced as an exhibit2. The Learned Trial Magistrate erred in rewriting the agreement between the parties3. The Learned Trial Magistrate misinterpreted the agreement between the parties4. The trial magistrate did not analyse the evidence5. The trial magistrate shifted the burden of proof to Appellant6. Appellant’s submissions were ignored7. The trial magistrate was biased8. Respondent’s claim was not proved

Submissions by the parties 5. The appeal was canvassed by way of written submissions which the Appellant and 1st Respondent dutifully filed.

Analysis and determination 6. I have considered the Appeal in the light of evidence on record and submissions and cases cited by both parties. InPalace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR, the judges of Appeal cited Denning J. in Millervs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof and had this to say; -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will loose, because the requisite standard will not have been attained.”

7. In support of his claim, Respondent pleaded that the value of his goods retained by the Appellant had been assessed by Probity Valuers Ltd who in a report dated 24th April, 2018 placed the value of the property in issue was assessed as KES. 915,800/- .

8. Suffice it to say that Respondent’s claim was a special damages claim. The law is settled that a claim for special damages must not only be specifically pleaded but must also be strictly proved with as much particularity as circumstances permit. (See Capital Fish Limited v Kenya Power and Lighting Company Limited [2016] eKLR).

9. As rightly contended by the Appellant, the assessment report dated 24th April, 2018 by Probity Valuers Ltd was not tendered as an exhibit. I therefore find that in the absence of the valuation report, the sum of KES. 915,800/- though specifically pleaded was not specifically proved and ought not to have been awarded.

10. The foregoing notwithstanding, Appellant does not deny that he retained the Respondent’s goods. Whereas the value has not been specifically proved, it would not be in the interest of justice to send the Respondent away from the seat of justice, empty handed when it is apparent that failure to tender the valuation report was a mistake visited upon the Respondent by its advocate.

11. Section 3A of the Civil Procedure Act Cap 21 Laws of Kenya gives this court inherent power to make such orders as may be necessary for the ends of justice to be met. Ends of justice cannot, in my humble view be met or seen to be met if the Respondent whose goods were unlawfully detained by the Appellant is sent away from the seat of justice only for the reason that he did not prove the value of the goods.

12. In Nkube v Nyamiro [1983] KLR 403, the court stated:A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.

13. The evidence on record demonstrates that this is a case that the interference by this court is warranted. Consequently, the appeal is allowed and it is hereby ordered:1. The order contained in the judgment delivered on 23d August, 2021 directing Appellant to pay to the Respondent KES. 915,800/- is set aside and substituted with order for judgment as against the Appellant for a nominal sum of Kenya shillings one hundred thousand (KES. 100,000/-).2. Each party shall bear its own costs of the appeal and of the trial in the lower court

DATED AT MERU THIS 10th DAY OF November 2022T. W. CHEREREJUDGECourt Assistant - Morris KinotiFor Appellant - Mr. Ndubi for Ndubi Ondubi & Associates AdvocatesFor Respondent - Mr. Waswani for Maitai Rimita & Co. Advocates