[2023] KECA 805 (KLR)

Morjaria v Junior & another (Civil Appeal 112 of 2019) [2023] KECA 805 (KLR) (30 June 2023) (Judgment)

Neutral citation: [2023] KECA 805 (KLR)

Republic of Kenya

In the Court of Appeal at Nakuru

Civil Appeal 112 of 2019

F Sichale, FA Ochieng & LA Achode, JJA

June 30, 2023

Between

Vijay Morjaria

Appellant

and

Harris Horn Junior

1st Respondent

Harris Horn Senior

2nd Respondent

(An Appeal from the Ruling and Orders of the High Court of Kenya at Nakuru (Mulwa, J), dated 31st July 2018 IN HCCC NO. 285 OF 2004 Civil Case 285 of 2004 )

Judgment

1. Vijay Morjaria (the appellant herein), has filed this appeal against the Ruling of Mulwa, J dated July 31, 2018.

2. The appeal arises from a Notice of Motion application dated August 29, 2017, filed in the High Court at Nakuru in which the appellant had inter alia sought an order that the debt owed to him by the respondents be registered as an adverse interest against the shares in the companies known as:a.Athinai Sisal Estatesb.Majani Mingi Sisal Estatesc.Lomolo (1962) Limited.

3. The matter was heard by Mulwa, J who vide a Ruling delivered on 31st July 2018 dismissed the same with no order as to costs. The appellant was aggrieved by the aforesaid ruling thus provoking the instant appeal vide a Notice of Appeal filed in Court on August 28, 2018 and a Memorandum of Appeal dated May 15, 2019 raising the following grounds of appeal:“1. That the trial court erred in law and fact in finding that the existence of the companies had not been proved while the documents from the registrar of companies were part of the court record.2. That the trial judge erred in law and in fact when she made a ruling and order which were contradictory and against the weight of the evidence. At paragraph 9 of the ruling the learned judge found that the existence of the companies had not been proved while at paragraph 10, the learned trial judge found that the consent filed in court was ipso facto evidence of the existence of the companies.3. That the learned trial judge erred in law and in fact in failing to consider all the available evidence including documents which were part of the record of the court.4. That while realizing that the respondents were bent to delaying the conclusion of the matter, the learned trial judge erred in law in making a finding which was against the weight of evidence and against the interest of justice.”

4. The brief facts in this appeal are that the appellant had sued the respondents for payment of a debt in the sum of Kshs 22,500,000. 00 together with interest, whereupon judgment was entered in his favour. Subsequently thereafter, the appellant made several unsuccessful attempts to execute the decree, culminating in the motion that has provoked this appeal in which the appellant inter alia sought to register an adverse interest in shares in the 3 companies. The motion was dismissed by Mulwa, J on July 31, 2018, thus setting the stage for this appeal.

5. When the appeal came up before us for hearing on March 8, 2023, Mr. Machoka, learned counsel appeared for the appellant whereas learned counsel Mr. Karanja appeared for the respondents. Mr. Machoka sought to rely on his written submissions dated 21st December 2022. Mr. Karanja for the respondents equally relied on his written submissions dated 20th December 2022.

6. The appellant sought to argue his 4 grounds of appeal as one. He submitted that the subject matter of the appeal was not an isolated attempt in execution of the decree, but was part of a sequel; that in the course of execution, the respondents consented that the appellant could be paid once the secured creditors were paid; that this was a tacit admission that the respondents were shareholders in the company and that in the application before Court, the issue as to whether the respondents were shareholders of the companies listed was not disputed. Consequently, we were urged to allow the appeal.

7. On the other hand, it was submitted for the respondents that the appellant had not adduced any evidence to proof that the 3 companies existed and that the respondents had interests in the said companies. Further, that in order to prove existence of a company, the Companies Act 2015, required the production a Certificate of Incorporation which had not been done in the present case and that as such, the appellant’s claim was unsupported.

8. It was further submitted that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact and that in the instant case and in absence of such proof, the appellant had failed to prove his case on a balance of probability.

9. We have carefully considered the record, the grounds of appeal, the rival submissions by the parties, the responses thereto, the cited authorities and the law. We are required as a first appellate court by Rule 31 of the Court of Appeal Rules 2022, to re-appraise the evidence and to draw inferences before coming to our own independent conclusion. See Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123 and Kenya Anti-Corruption Commission v Republic & 4 others [2013] eKLR.

10. Having clearly perused the record and the rival pleadings by the parties, we have framed the following main issue for our determination:1. Whether the learned judge erred in law and fact in finding that the existence of the companies had not been proved while the documents from the Registrar of Companies were part of the record?

11. It is indeed not in dispute that the respondents are indebted to the appellant to the tune of Kshs 22, 500,000. 00. It is also not in dispute that there have been several unsuccessful attempts by the appellant to execute the decree. The latest such attempt was the motion dated 29th August 2017, in which the appellant had sought, inter alia, that the debt owed to him by the respondents be registered as an adverse interest against the shares in the companies known as: Athinai Sisal Estates, Majani Mingi Sisal Estates and Lomolo (1962) Limited.

12. We have carefully gone through the record, and contrary to the appellant’s contention, there is nothing on record from the Registrar of Companies to show that indeed these 3 companies exist and if indeed they exist, the extent of the respondents’ shareholding/interests in the said 3 companies, if any. Indeed, as was noted by the learned judge in her impugned ruling, the appellant did not tell the Court why the vital documents to authenticate the respondents’ interests in the aforesaid companies, if they existed, were not procured from the Registrar of Companies and shown to the Court.

13. It is trite law that he who asserts must prove. See Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] eKLR where this Court remarked thus:“We have considered the rival submissions on this point and state that section 107 and 109 of theEvidence Actplaces the evidential burden upon the appellant to prove that the signature on these forms belong to the Respondent. Section 107 of theEvidence Actprovides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Actprovides, the burden lies on that person who would fail if no evidence at all were given on either side. (Emphasis supplied).”Further, The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes the burden of proof thus:“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case...”

14. Turning to the consent between the parties that the appellant has alluded to, where the respondents agreed to pay the decretal sum, once all secured creditors have been paid: the same provides as follows:“By Consent: -1. That the decretal sum herein owed to the plaintiff together with interest accrued and court costs shall be paid once the secured creditors have been paid.”

15. The said consent does not even make reference to any of the 3 companies that the appellant sought the registration of an adverse interest in shares. In any event, it is not even clear whether the said secured creditors have been paid or not. The appellant having not discharged the evidential burden, it is our view that he has not laid any basis upon which an adverse interest can be registered against the shares of the aforesaid companies.

16. We think we have said enough to demonstrate why the appellant’s appeal must suffer only one fate which is dismissal.

17. Accordingly, the appeal is hereby dismissed in its entirety with no order as to costs.

18. It is so ordered.

DATED AND DELIVERED AT NAKURU THIS 30TH DAY OF JUNE, 2023. F. SICHALE............JUDGE OF APPEALF. OCHIENG.............JUDGE OF APPEALL. ACHODE.............JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR