[2022] KEHC 3241 (KLR)

M’Iliria v Kimathi (Civil Appeal E056 of 2021) [2022] KEHC 3241 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3241 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E056 of 2021

TW Cherere, J

May 12, 2022

Between

David Kaluma M’Iliria

Appellant

and

Alex Kimathi

Respondent

(Being an Appeal from the Judgment and Decree in Tigania PMCC No. 11 of 2020 by Hon. R.Ongira (RM) on 31st March, 2021)

Judgment

1. By a plaint dated February 15, 2020filed on 18th February, 2020, Respondent sought a refund of Kshs. 168,000 from the Respondent for sale of land parcel No. 4402 Akithi Adjudication Section gone sour which the Appellant breached.

2. By his defence dated August 10, 2020, Appellant denied the Appellant’s claim in toto.

3. By a judgment dated March 31, 2021, the learned trial magistrate awarded found the Respondent’s claim proved and ordered the Appellant to refund to the Respondent Kshs. 168,000/- and condemned him to pay costs of the suit.

The Appeal 4. The Appellant being dissatisfied with the lower court’s decision preferred this appeal mainly on the ground that the Respondent’s case was not proved t the required standard.

Submissions by the parties 5. On March 28, 2022, this court directed that the appeal be canvassed by way of written submission which the parties dutifully filed.

Analysis and Determination 6. In carrying out its mandate, the appellate court must reconsider the evidence before it, evaluate it and draw its own conclusions.

7. In support of his case that a sale agreement was executed between him and the Appellant, Respondent tendered a sale agreement dated 27. 02. 2015 for the sale of a piece of land described as P/NO.2105 (PART) P/NO.4409 measuring 0. 26 acres for the sum of Kshs. 168,000/-. The agreement contains thumbprints against the names of the Appellant and Respondent and two witnesses and was duly executed by an advocate one Domiziano M. Ratanya.

8. Respondent informed the court that he paid Kshs. 20,000/- upon signing the agreement and paid the balance in instalments as acknowledged on the reverse of the sale agreement.

9. Additionally, Respondent tendered an affidavit sworn by the Appellant on 07th May, 2015 in which Appellant acknowledged selling 0. 26 acres of 2105 Akithi Adjudication Section to the Respondent.

10. In his defence, Appellant acknowledged being owner of land parcel 2105 Akithi Adjudication Section but denied executing any sale agreement or receiving money from the Respondent.

11. I have carefully considered the evidence on record and the submissions and cases cited by both parties. In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda &another (2015) eKLR, the judges of Appeal cited Denning J in Miller v 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.”

12. In considering whether Respondent proved his claim on the balance of probabilities, the learned trial magistrate found that the Appellant had conceded that the ID Card No.xxxxx was his and had failed to discharge the burden to proof that the identity card was obtained in any other manner other than the one explained by the Respondent that both appeared before an advocate and identified themselves by their identity cards. Similarly, on the basis that Appellant had not lodged any complaint with the police concerning the thumbprint on the sale agreement which he contends is not his, the learned trial magistrate dismissed the Appellant’s disputation that the thumbprint was not his.

13. The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. (See Mbuthia Macharia v Annah Mutua &another [2017] eKLR).

14. From the foregoing analysis, I find that the verdict by the trial court that Respondent had proved on a balance of probabilities that the parties herein appeared before an advocate, identified themselves by their identity cards and thumb printed the sale agreement in issue was well founded.

15. Concerning the amount paid, Respondent informed the court that he paid Kshs. 20,000/- upon signing the agreement. On the reverse of the agreement which similarly contains thumbprints against the names of the Appellant and Respondent and is executed by an advocate, there is evidence of payment of Kshs. 10,000/- on 02. 03. 2015, another Kshs. 10,000/- on 04. 03. 2015, Kshs, 70,000/- on 12. 03. 2015 and a further Kshs. 13,000/- on an unstated date which totals Kshs. 123,000/- and not Kshs. 168,000/- for which judgment was entered.

16. Section 27(1) of the Civil Procedure Act gives courts unfettered discretion to determine by whom costs are to be paid. It is trite that costs follow the event and a successful litigant ought to be fairly reimbursed for the costs that he has had to incur.

17. In the end and for the reasons given on the foregoing analysis, I have come to the conclusion that this appeal has merit and it is allowed in the following terms:1. The appeal partially succeeds in that for judgment in the sum of Kshs. 168,000/- is hereby set aside and is substituted with an order for judgment in the sum of Kshs. 123,000/- (One hundred twenty-three thousand)2. Appellant shall bear ½ costs of this appeal.

DATED AT MERU THIS 12TH DAY OF MAY 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellant - Ms. Gitonga for M/s M.D.Maranya & Co. AdvocatesFor Respondent - N/A for M/s Ayub Anampiu Co. Advocates