[2018] KEHC 4562 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CIVIL DIVISION

HIGH COURT CIVIL APPEAL CASE NO. 15 OF 2017

MARY KING’ORI.........................................................APPELLANT

VERSUS

KENYA WOMEN FINANCE TRUST.....................RESPONDENT

(Being an appeal from the Ruling delivered on 24th January 2017

by Hon. E.W. Wambugu (Resident Magistrate)Chief

Magistrate’sCourtat Meru CMCC No. 76 of 2013).

JUDGMENT

1. Vide a plaint dated 19th March, 2013, the Appellant sued the Respondent for a return of her goods which were allegedly illegally held by the Respondent. The Appellant also claimed for general damages, exemplary and punitive damages, costs and interest. It was averred that the Respondent seized the goods claiming that the goods had been pledged as security for a loan by one Alice Wambui Mboraki. The Appellant pleaded that she did not guaranteed any loan obtained by the said Alice Wambui Mboroki

2. The claim was denied as per the statement of defence dated 20th May, 2013. The Defendant admitted having impounded the Appellants goods. The Respondent further admitted that the Appellant did not guarantee the loan obtained by Alice Wambui Mboroki. The Respondent pleaded that the said Alice Wambui Mboroki who was the Appellant’s daughter in law had pledged the goods in question as security for a loan of Ksh.200,000/= with the Appellant’s son Hillary Muchemi Kingori being the guarantor. The Respondent stated that the said Alice Wambui Mboroki was wife to the said guarantor and read dishonesty, mischief and collusion between the Appellant, the borrower and the guarantor to mislead the court and escape from their financial responsibility and liability.

3. The trial magistrate dismissed the Appellant’s case with costs. That is what triggered this appeal.

4. The grounds of appeal can be condensed into one, that is whether the judgment of the trial magistrate was against the weight of the evidence.

5. During the hearing of the appeal, the Appellant relied on written submissions. The Respondent did not file any. I have considered the submissions filed.

6. This being a first appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. See for example the case of Selle v Associated motor Boat Co. & others [1968] E.A. 123 where it was stated as follows:-

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.

7. The Appellant (PW1) in her evidence stated that she is a business lady and an account holder with the Respondent. The Appellant stated that she had an earlier loan with the Respondent which she had fully paid and while in the process of applying for another loan she took the Respondent to her home to assess the household goods which were to be pledged as security for a loan. That the Respondent took away the Appellant’s household goods, claiming the same to have been pledged as collateral for a loan by one Alice Wambui Mboroki (hereafter Alice). The Plaintiffs’ evidence was that she knew the said Alice as her son’s girlfriend and contended that she had never guaranteed Alice to obtain any loan and did not even know that the said Alice had obtained a loan from the Respondent.

8. The Appellant further testified that the house where the goods were impounded from was her home. That she had a title deed to the same which she produced as an exhibit. The Appellant also produced an inventory of the seized goods. The goods are reflected therein as follows:

1. Leather sofa set

2. 2 Seats sofa set

3. Fridge

4. Pufu

5. Radio system LG

6. Electrical Heater

7. 2 Plastic chairs @ 550/=

8. 5 Dinning Chairs @ 4,000/=

9. Gas cylinder with gas

10. 1 Micro wave

11. Television LG

12. Gas Regulator

13. Glass Coffee Table

14. Cash money

9. The Appellant further stated that she had not rented out the house. That her son Hillary Muchemi Kingori (hereinafter Hillary) had his own house within the same compound. The Appellant maintained her line of evidence during cross-examination and stated that she did not have receipts to prove the purchase of the goods.

10. Keziah Waithera Hitha, a credit officer with the Respondent gave evidence that Alice obtained a loan of Ksh.200,000/= from the bank but fell into arrears of payment. That on 8th March, 2013 the bank officials visited the home where Alice lived with her husband Hillary who was her co- Borrower and guarantor for the loan. That the household goods that been pledged as security for the loan were also in the said house. That one child was also in the house.

11. It was further stated that both the borrower and the guarantor where asked to clear the loan arears but were not able to. The goods were then seized and carted away. That after the 7 days notice period the goods were auctioned for the sum of ksh.173,800/= leaving a balance of Ksh.72,260/= uncleared loan. That the Ksh.22,370/= which was in the borrowers account was also applied to offset the loan, leaving on outstanding balance of Ksh.11,898/=. That after court orders were issued herein is when the bank knew the Appellant. It was further stated that the Appellant did not go to follow up on the seized goods during the grace period before the sale.

12. DW1 also maintained her line of evidence during cross- examination. DW1 further stated that they were shown the home by the borrower and the guarantor during the loan assessment but were not shown receipts for the goods. DW1 further stated that most household items have no receipts. Although it was submitted on behalf of the Appellant that DW1 referred to a statement recorded by a fellow bank official by the name Ronald Marwanga, it is noted that DW1 gave her evidence in court and produced the documents that had been filed. There was no objection from the Appellant’s side. No prejudice has been demonstrated to have been suffered by the Appellant through the failure by DW1 to file and serve a witness statement.

13. From the evidence adduced, it comes out clearly that the Appellant did not guarantee the loan obtained by Alice. The central issue in this appeal therefore revolves around the issue of the ownership of the goods pledged as collateral for the loan by Alice and Hillary. There is evidence from the Appellant that Hillary is her son and Alice the son’s girlfriend. The Appellant’s evidence is that the said son has his own house in the same compound while on the other hand the Respondent contended was that when they visited Alice and Hillary they were in the house with the property in question. The Respondent’s were not shown any receipts for the purchase of the goods by Alice and Hillary. The Appellant did not have the receipts for the goods either. Although this court appreciates the fact that most people do not safely keep receipts for household goods, not a single receipt was produced by the Appellant.

14. Production of the title deed as to the ownership of the land cannot be proof of ownership of the household goods especially taking into account the family situation in the case at hand. Given, the Appellant has a right to property and the said right is separate and distinct from that of her son and the son’s wife or girlfriend as the case may be. The only way to have resolved the question of ownership of the goods in question was by way of evidence. However, the evidence on record is respect of the ownership is the oral evidence of the parties. None of the parties called any other evidence. It seems the real culprits, that is Alice and Hillary were not brought on board herein by either of the parties.

15. Although the Appellant’s evidence was that she was known to the Respondent as she had previously obtained a loan from them, no documents were produced to confirm the position especially taking into account that a loan is normally documented in one way or the other.

16. There is no evidence from the Appellant’s side to prove that the order stopping the sale was served before the sale took place. The Respondent’s evidence is that the goods were sold on 21st March, 2013. The Appellant’s prayer for the return of the goods is therefore not tenable. The plaint was not amended in respect of the said prayer. The quotation availed as an exhibit which reflects the price of similar goods at a total of Ksh.513,620/= is therefore not useful as there was no such claim in the plaint.

17. The trial magistrate assessed the general damages he would have awarded if the Appellant’s case had succeeded as Ksh.50,000/= if the goods had been wrongfully sold. No punitive and exemplary damages were awarded by the trial magistrate. There was no cogent evidence of service of the court orders before the sale. If the court orders had been served and the sale had proceeded, I would have award a sum of Ksh.50,000/= as exemplary and punitive damage. This would have brought the total damages as Ksh.100,000/= in addition to the value of the goods. However, the Appellants case was not proved on balance of probabilities.

18. With the foregoing, I find no merits in the appeal and dismiss the same. Taking into account the peculiar circumstances of this case, each party shall bear own costs both in the Lower Court and this Appeal.

B. THURANIRA JADEN

JUDGE

Dated, signed and delivered in Meru this 26th day of July, 2018

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