[2022] KEHC 15190 (KLR)

Litiluu v Gikonyo (Civil Appeal E002 of 2020) [2022] KEHC 15190 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15190 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Appeal E002 of 2020

SN Mutuku, J

October 6, 2022

Between

Naiposha Litiluu

Appellant

and

Robert Kamau Gikonyo

Respondent

Judgment

Introduction 1. From the pleadings in the lower court, parties herein entered into a sale agreement on October 27, 2010 in respect of six acres of land to be excised from parcel No. Kajiado/Kitengela/2943. The purchase price was Kshs 700,000. One of the conditions of the agreement was that the Respondent would complete payment of the purchase price upon excision of six acres from the above parcel of land and transfer to him and that if the Appellant failed to complete the sale for any reason, she would refund the entire purchase price with 15% interest per annum.

2. The Plaint dated November 3, 2011 filed by the Respondent states that the Respondent paid the Appellant Kshs 394,000 in addition to Kshs 150,000 paid as agent fee and legal fees amounting to Kshs 5,000 making a total of Kshs 549,000 which the Respondent claimed.

3. In a judgment delivered on October 1, 2018, the learned trial magistrate found in favour of the respondent in the sum of Kshs 549,000 and costs at court rates. It is this judgment that has aggrieved the Appellant prompting this Appeal.

Memorandum of Appeal 4. In the Memorandum of Appeal dated October 12, 2020, the Appellant has raised the following grounds for determination:i.That the learned magistrate erred in law and in fact that the respondent proved his case against the respondent on a balance of probabilities.ii.That the learned magistrate erred in law and in fact by holding that the burden of proof was on the appellant to prove her innocence.iii.That the learned magistrate erred in law and in fact by failing to analyze all the evidence adduced by the appellant against the Respondent.iv.That the learned magistrate erred in law and in fact by failing to consider the law, evidence and submissions made and authorities filed by the appellant.v.That the learned magistrate erred in law and in fact by failing to consider the defence filed by the appellant.vi.That the learned magistrate erred in law and in fact by holding that the Respondent- had proved his case against the Appellant.

5. The Appellant seeks orders that:i.That the Appeal be allowed with costs.ii.That the Respondent’s suit be dismissed.iii.That the judgment of Kajiado CMCC No. 193 of 2011 be set aside.iv.That this court be pleased to make such further and other orders as it may deem fit and just.

6. The Appeal was canvassed through written submissions.

Appellants Submissions 7. In her submissions, the Appellant argued grounds 1 and 6 together. She has submitted that there was no evidence adduced to prove that the appellant received Kshs 549,000 from the Respondent; that no agent was called to testify to receiving Kshs 150,000 as commission; that there was no evidence adduced to prove that the Appellant appended her thumb print as acknowledgment for receipt of money and therefore the Respondent did not prove his case to the standard required.

8. On grounds 2 and 5, it was submitted that the learned trial magistrate shifted the burden of proof to the Appellant to prove her innocence by not producing any finger-print report to show that the finger print did not belong to her.

9. On grounds 3 and 4, she submitted that the learned trial magistrate failed to consider the law, facts and evidence; that the sale agreement did not disclose the capacity upon which the Appellant would have entered into the agreement since the land was not in her name and she did not have the power of attorney from the owner to sell the land on his behalf; that PW1 failed to explain why he allowed the Appellant to transact land that did not belong to her.

Respondent’s Submissions 10. The Respondent has submitted that he produced documentary evidence to show that he entered into a sale agreement with the Appellant and paid a total of Kshs 394,000 which payment was acknowledged in writing. He has submitted that payments for Kshs 394,000 were made in instalments of:i.Kshs 165,000 on October 27, 2010. ii.Kshs 111,000 on December 8, 2010. iii.Kshs 67,000 on December 8, 2011. iv.Kshs 51,000 on May 25, 2011.

11. He has submitted that he incurred Kshs 150,000 as agent’s commission which agreement he submitted was not annexed to the Record of Appeal and which he submitted he has annexed to the submissions but which is not annexed as claimed. He submitted that he paid Kshs 5,000 as legal fees all giving a total of Kshs 549,000. He submitted that the trial magistrate found the case against the Appellant proved and found in favour of the Respondent.

12. He submitted that the trial court evaluated all the evidence; that the trial magistrate considered the defence of the Appellant and found that her defence amounted to mere denial and unbelievable; that the trial magistrate found that the Respondent had paid the money to the Appellant and that the trial court had the benefit of observing and evaluating the witnesses as they testified.

13. It was submitted that the trial court evaluated all the evidence and delivered a judgment that complied with the law and arrived at a correct decision. The Respondent asks this court to dismiss the appeal with costs.

Determination 14. I am required to evaluate and consider the evidence afresh with a view to arriving at an independent decision. I have the entire lower court file. The matter proceeded undefended after the Appellant failed to enter appearance and file defence. A judgment was delivered on November 6, 2012 by S.O Temu, Senior Resident Magistrate. This judgment was set aside on October 17, 2014 in a Ruling delivered on that date. The Appellant was allowed to file her defence paving way for hearing the matter.

15. James Ogoti Agata (PW1) was the first witness for the Respondent. He testified that on October 27, 2010, the Appellant and the Respondent and one Raphael Ndirangu Mundia went to his chambers. The Appellant was the vender and Respondent the buyer of 6 acres from Kajiado/Kitengela/12943 for Kshs 700,000. PW1 prepared a sale agreement which was executed by the parties and a down payment of Kshs 165,000 was made. The balance of Kshs 185,000 was to be covered by motor vehicle Toyota Pick-up Registration No. KXN xxx. The remaining amount of Kshs 350,000 was to be paid after sub-division and transfer of title.

16. PW1 testified that the Appellant appended her left thumb print on the sale agreement in company of John Oshumu her son who also signed the agreement. He testified that a total of Kshs 394,000 was paid as follows:i.27/10/2010 = Kshs 165,000ii.8/12/2010 = Kshs 111,000iii.7/2/11 = Kshs 67,000iv.25/5/2011 = Kshs 51,000Total Kshs 394,000

17. He testified that the copy of the title was in the name of the appellant’s husband, Letoile Ole Ntirori, whom he was told was sick. He testified that he charged his fees at Kshs 5,000.

18. The Respondent, Robert Kamau Gikonyo (PW2) was the second witness. He confirmed entering into a sale agreement to buy six acres from Kajiado/Kitengela/12943 for Kshs 700,000 and paying a total of Kshs 394,000.

19. The Appellant denied shed had land to sell. She denied selling land to the Respondent. She denied entering into a sale agreement before PW1 or going to his office. She denied receiving any money and motor vehicle to sell land. She denied the thumb print on the sale agreement was hers. She admitted that the land belonged to her husband who had been dead at the time. She testified on cross-examination that she is able to sign and that she did not use thumb print to sign documents. She denied knowing the Respondent or having any business with him. She even denied that she is known as Naiposha Litiluu.

20. John Oshumu testified as second defence witness. He also denied signing the sale agreement before PW1. He denied having seen the Respondent.

21. In a two-page judgment, Chesang M, a Resident Magistrate found in favour of the Respondent by allowing prayer one (1) of the Plaint with interest at court rates. Prayer one (1) of the Plaint sought payment of Kshs 549,000 with interest at 15% until payment in full.

22. I have considered this matter. PW1 testified to preparing the sale agreement produced as exhibit. This agreement was executed in his presence. PW1 witnessed payment of Kshs 165,000 in cash and there are documents to show that money was paid and acknowledged on the following dates:i.October 27, 2010 Kshs 165,000 as down payment.ii.October 27, 2010 Kshs 5,000 as legal fees.iii.8/12/2010 Kshs 111,000. iv.7/2/2011 Kshs 67,000. v.25/5/2011 Kshs 51,000. Total Kshs 399,000.

23. I have noted that the Respondent Kshs 185,000 was said to have been paid in form of Motor vehicle Toyota Pick-Up Registration No. KXN xxx but I find no evidence supporting the giving the motor vehicle to the Appellant as part of payment of the purchase price amounting to Kshs 185,000.

24. I have noted that the Respondent in his witness statement is claiming Kshs 549,000 which includes Kshs 150,000 he claims to have paid the agent. I find no evidence on record that such money was paid. This is the amount he claims in his Plaint. He is not asking the entire purchase price of Kshs 700,000 that was supposed to be paid to him if the appellant failed to honour the contract as stated in the Sale Agreement.

25. I have considered the evidence. It is clear to me, as found by the learned trial magistrate, that the Appellant’s defence is a mere denial even when there is evidence of witness, PW1, who prepared the sale agreement and witnessed the payment of down payment of Kshs 165,000. She denied receipt of money even when there is documentary evidence supporting such payment.

26. I have considered the appellant’s grounds of appeal contained in the Memorandum of Appeal against the evidence adduced. I cannot agree with her that the learned trial magistrate made errors in finding the case proved on a balance of probabilities or in failing to analyze all the evidence, or in failing to consider the evidence, law and submissions or in failing to consider the appellant’s defence. I find no fault in the manner the learned trial magistrate handled the matter. The judgment may be short but it is based on good reasoning.

27. The only error I attribute to him is the shifting the burden of proof to the appellant to prove that the thumb print was not hers. It is trite that he who alleges must prove. The Respondent alleged that the appellant thumb printed the documents. The onus is on him to prove so. But this finding does not dislodge the fact that the Respondent proved his case to the extent of the payments amounting to Kshs 399,000 given that the Appellant made a general denial even where there are witnesses to the contrary.

28. Given that there is no evidence whatsoever that the motor vehicle in question was ever given to the Appellant, I find that the Respondent proved his case to the extend that Kshs 399,000 was paid towards the purchase of the land. I find no evidence that there was payment of Kshs 150,000 to an agent. There is no evidence in support of that payment. I note that the Appellant is not contesting the amount paid as such but other issues raised in her appeal.

29. This appeal fails. But the amount payable to the Respondent, which amount I find to have been proved, is Kshs 399,000. I also find that the interest payable should be 15% as contained in the agreement. I note that the appellant submitted that this amount was not justified but the Sale agreement is specific that the interest payable is 15%. I order that this interest is payable from 2011 until payment in full, 2011 being the year the last payment was made to the Appellant.

30. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 6THOCTOBER 2022. S. N. MUTUKUJUDGE