[2016] KEHC 2374 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 159 OF 2014

MILICENT AKINYI OWOUR …………………………......APPEALLANT

VERSUS

HALIMA IDD .......................................................................RESPONDENT

J U D G M E N T

1. By a plaint dated 28/6/2013, the Appellant, as Plaintiff, sued the Respondent for the Recovery of the sum of Kshs.40,000/- on account of a friendly loan agreement executed between the parties and dated the 31/8/2009.

2. The defendant filed a defence to that plaint and admitted receiving a friendly loan of only Kshs.13,000/- and not Kshs.40,000/- and signed an agreement to that effect. For that admitted sum the trial court, Hon. Wasike, entered judgement to an application for summary judgement by a ruling dated 25/2/2014 thereby leaving the sum of Kshs.27,000 to go for trial. In her ruling aforesaid, Ms. Wasike said:-

“Be as it is, although in her supporting affidavit the defendant states that she received Kshs.10,000/- the copy of the agreement shows she received Kshs.13,000/- It is clear that the defendant does not deny receiving the amount i.e. Kshs.13,000/- I shall therefore enter judgment against her for the said sum. The defendant can deferred the issue of the remainder of Kshs.27,000/- which she denied”.

3. Indeed the plaintiff did fix the matter for hearing on the 24/11/2014 on which day the plaintiff and her advocate attended court but the defendant/Respondent did not attend and the matter therefore proceeded with the appellant giving evidence in the absence of the Respondent.

4. That evidence was short and brief. The appellant simply told court that the Respondent was her friend to whom she offered a friendly loan which was witnessed by a memorandum in writing. She equally produced the agreement as exhibit P1 and confirmed that out of the 40,000/- the Respondent had paid the Kshs.13,000/- leaving a balance of Kshs.27,000/-.

5. The case was thus closed at that juncture and the trial court reserved its judgment to be delivered on 4/12/2014. That is the Judgment now appealed against.

6. In the Judgement, the trial court having quoted verbatim the reasons for ruling by Ms. Wasike RM, said:-

“The Hon. Wasike has already made a finding disregarding this particular agreement and also disregarding which the defendant had adduced. She was very emphatic in her ruling that the jurat of the agreement was on one page distinct from the body of the main agreement. She termed that as an ill that raises triable issues. It is my respective opinion that the court served a notice on the plaintiff that she required more than the agreement to prove that the amount was Kshs.40,000/- and not the admitted amount of Kshs.13,000/-

It follows therefore that at trial the plaintiff ought to have called the witness who witnessed those agreements to tell the court what amount was the subject matter of the agreement in issue. This the plaintiff failed to do. Unfortunately, the witness to that agreement was the plaintiff’s advocate”.

With that observation the Appellant lost and her suit was dismissed with costs.

7. As a first appellant court, I am bound to re-evaluate the entire evidence and come to own conclusions. The issue for determination in this appeal is whether or not the trial court fully appreciated the evidence and if it arrived at a sound decision. I take the position that the court hearing a matter by viva corce evidence is not bound to fall back to the facts deponed to in an affidavit subject to an application earlier on determined. Once an application is determined, it remains determined and unless the averments in the affidavits are led in evidence they are not available for consideration by the trial court at that later stage.

8. In the matter before me, the Respondent did not attend at the hearing and did not call any evidence. Even though she had filed a list and copies of the agreement, those remained a mere statement in the pleading that needed proof and production. See Trust Bank Ltd -vs- Paramount Universal Bank Ltd & 2 Otherswhere the court said:-

“It is trite that where a party fails to call evidence in support of it’s case, that party’s in so doing the party fails to substantiate the pleadings”.

9. Additionally one must distinguish that while at trial the plaintiffs onus was on a balance of probabilities on an application for summary judgment, the defendant only needed to isolate and demonstrate a single triable issue without much proof. The foregoing is sufficient to dispose of the appeal with a finding that the trial court abdicated its duly and erred in considering itself bound by a finding on an interlocutory application for summary judgement. In doing so it failed to adequately consider the evidence placed before it and which was never controverted. That is an error that entitles this court to interfere and I do interfere by setting aside the judgement dismissing the appellant’s suit and substituting therefore a judgement allowing the suit in the sum of Kshs.27,000/- with interests and costs.

10. There is the question of whether or not corroboration was required. Indeed the appellant gave oral evidence and produced the memorandum of agreement. To this court, the agreement corroborated the oral evidence and to ask for more as the trial court did was a clear error. This is made more troublesome with the court’s own finding that the only witness to the agreement was Mr. Nyongesa, who the plaintiff advocate the court properly found was estopped for giving evidence on account of the provisions of the evidence Act and the Advocate Practice Rules. That finding on need for corroboration was clearly erroneous.

11. I allow the appeal and award to the Appellant the costs of this appeal.

Dated and delivered on this 14th day of October 2016.

HON. P.J.O. OTIENO

JUDGE