[2022] KEHC 12192 (KLR)

Muema & 2 others v Katiwa (Criminal Appeal 213 of 2015) [2022] KEHC 12192 (KLR) (9 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12192 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal 213 of 2015

RK Limo, J

May 9, 2022

FORMALLY MACHAKOS APPEAL CASE NO 47 OF 2015

Between

Ndunge Muema

1st Appellant

Mulei Munyao

2nd Appellant

Jemimah Mwanza

3rd Appellant

and

Jacob Mutuku Katiwa

Respondent

(Appeal that arose from the Ruling and Judgement dated March 5, 2015 of Hon B M Kimemia Principal Magistrate in Kitui Principal Magistrates Court Civil Suit no 43 of 2012)

Judgment

1. This is an appeal that arose from the ruling and judgement of Hon B M Kimemia Principal Magistrate in Kitui Principal Magistrates Court Civil Suit no 43 of 2012. In that suit, the appellants had been sued by the respondent for recovery of a posho mill which the respondent alleged was unlawfully attached by the appellant over a loan the respondent had taken from the appellants.

2. The brief summary of the facts presented to the trial court are that the respondent owned and operated a posho mill in the homestead he shared with his mother. According to him, he had bought the posho mill at kshs 122,000 and had used kshs 80,000 to put up a shade or building to house the posho mill at his home compound. The evidence presented further revealed that the respondent’s mother had taken out a loan of kshs 200,000 from Kenya Women Finance Trust through a women group known as Savuri Self Help Group. She had repaid kshs 150,000 by the time she defaulted and by the time the creditor carried out attachment, kshs 70,000 was still owing.

3. The respondent’s claim was that he had not guaranteed his mother using the posho mill which was attached and sold by the appellants. The trial court found that the respondent had proved his case on a balance of probabilities and entered judgement in his favour ordering the respondent to refund ksh 230,000 to the respondent.

4. Aggrieved by the court’s decision, the appellants lodged the present appeal vide their memorandum of appeal dated April 1, 2015 which is founded on the following grounds: -a)The learned trial magistrate erred in law by failing to allow the appellant’s application to be heard in their defence even when there were sufficient reasons in support of the appellant’s applicationb)The learned trial magistrate erred in law when she locked out the appellants from being heard in defence even when they had expressed their desire to be heard.c)The learned trial magistrate erred in law when she visited upon the appellants the default of their advocate an error which amounted to miscarriage of justiced)The learned trial magistrate erred in law when she disregarded the overriding objectives set out in sections 1A and 1B of the Civil Procedure Act, chapter 21 of the laws of Kenya an error which resulted to the court arriving at an unjust decision.e)The learned trial magistrate erred in law when she combined the delivery of the ruling and the judgment simultaneously thereby violating the rules of proceduref)The learned trial magistrate erred in law when she failed to consider the appellants’ defence in arriving at her decision which error led the court to arrive at an erroneous decision and conclusion,g)The trial before the lower court was a mistrial and the decisions made in the ruling and the judgment were erroneous to that extenth)That the learned trial magistrate was clearly biased against the appellants a fact that rendered the decisions of the court erroneousi)The court award to the respondent was excessive and not supported by the evidence.

5. In their written submissions made through counsel dated October 26, 2021, appellants submit their right to be heard was infringed on by the trial court when the appellants proceeded to close their case in the absence of their counsel. The appellants submit that the trial court should have called upon them to give their evidence before closing their case. They contend that the mistake of their advocate should not have been visited on them.

6. They have placed reliance on the case of Kenya Trypanomiasis Research Institute vs Anthony Kabimbia Gusinjilu (2019) eKLR. The Court of Appeal in this matter restated the right of parties to be heard after it set aside a decision of the High Court which had rendered the appellant’s suit res-judicata. The court found that the two applications filed by the appellant were different in substance and as such the application that was dismissed for being res judicata was reinstated.

7. They have also relied on the case of Misnak International (UK) limited vs 4MB Mining Limited c/o Ministry of Mining Juba Republic of South Sudan 2019 eKLR where the Court of Appeal emphasized a party’s right to be heard and set aside the High Court’s decision after it found that service of summons had not been effected on a party that was outside Kenya. In the absence of evidence of service, the appellate court found that the defendant had not been properly served.

8. The respondent has opposed this appeal through written submissions dated November 21, 2021. The respondent submits that the appellants called one witness and closed their case on September 25, 2015. The respondent faults the appellants for trying to reopen case after the date of judgement had been given and that the trial court according to him correctly declined to re-open the case and instead proceeded to deliver its judgement on March 5, 2015.

9. The respondent submits that the trial court gave an opportunity to the appellants to file their submissions. He faults the appellants for the delays which saw the trial court giving them several adjournments.

10. The respondent contends that the appellants closed their case voluntarily on September 25, 2014 and cites the provisions of section 1A of the Civil Procedure Act that touches an overriding objective of the said Act submitting that the same provision formed the basis the trial court dismissed the appellant’s application to reopen the case.

11. He submits that the judgement given by the trial court was on merit adding that each party was given a reasonable opportunity to present their case. He contends that the respondents presented one witness and then voluntarily closed their case.

12. He denies the contention that the trial court complied with the overriding objective of section 1A of Civil Procedure Act the court was alive to the principle of just, proportionate and expedient disposal of the suit and was patient with the appellants.

13. He submits that the defence was duly considered and the question of mistrial or bias never arose and that he proved his case and the trial court entered judgement as per his alternative prayer of a liquidated demand to compensate him for the loss of his posho mill.

14. This court has considered this appeal and the response made. There is no dispute that the trial or the hearing went on at the subordinate court where the respondent as the plaintiff was heard and closed its case. The Respondents as the defendants also presented one witness and closed their case albeit after several adjournments.The trial court then gave parties a chance to file their respective written submissions on September 25, 2014 and on October 30, 2014 only the respondent had filed and the trial court gave them 7 days to file the same. It then fixed the judgement date for December 11, 2014.

15. On November 20, 2014, the appellants filed an application dated November 19, 2014 seeking to stay the judgement and to reopen the case arguing that the appellants closed their case without knowing the implication.

16. The trial court dealt with the said interlocutory application before delving on the main judgement. It dismissed the appellant’s application and proceeded to enter judgement in favour of the respondent.

17. This appeal is both on the trial court ruling to dismiss their application and the main judgement.

18. I will begin with the merits of the said ruling dated March 5, 2015. This court has considered the grounds raised in the Notice of Motion dated November 19, 2014 and the decision thereof of the trial court. This court notes that the respondents sought an adjournment on March 7, 2013 after the respondent had closed his case. They also sought for further adjournment on April 11, 2013 and June 27, 2013. On October 3, 2013, the appellants presented their case by calling only one witness and sought for more time which was granted and the hearing fixed for February 27, 2014, when they were also not ready and sought for more time to avail their witnesses. The trial court granted them final adjournment and fixed the matter for hearing on August 21, 2014 when they further sought for more time. The trial court indulged and gave them final adjournment. On September 25, 2014, the 1st, and 2nd appellant appeared and stated that they wished to close their case.

19. This court has considered the reasoning of the subordinate court in disallowing the appellants’ application dated November 19, 2014. It based its ruling on section 1A of Civil Procedure Act which state as follows: -‘‘The overriding objective of this Act and the rules made hereunder is to facilitate the just expeditions proportionate and affordable resolutions of the civil disputes………………’’

20. From the above this court finds that the trial court was overly lenient and patient with the appellants because of the indulgence extended to them. The trial court certainly cannot be faulted for putting its foot down and disallowing the appellants’ belated attempt to reopen the case and drag the trial. They had more than two years to present their case and as rightly put by the trial court, litigation at some point must come to an end. That point in this instance had been reached and I do not find any basis to interfere or set aside the trial court’s ruling. I do not find any merit on the appellants’ claims that there was a mistrial or that they were denied a chance to be heard. In the same breadth I do not find any basis to show that the trial court was biased against and/or the claim that it wrongly disregarded the objectives of sections 1A & 1B Civil Procedure Rule. The trial court was in order to deliver its ruling and judgement simultaneously as the appellants prompted it to do so with the belated application and in an attempt to derail the delivery of the judgement.

21. This court will now delve on the merits of the main judgement and the issue arising in this appeal is whether the respondent proved his case or rather whether the trial court properly directed itself when it found that the respondent’s case had been proved.

22. There is no dispute that Felistus Mwatha Katiwa, the respondent’s mother took a loan from Kenya Women Finance Trust (KWFT). The respondent’s own mother testified that she took a loan of kshs 200,000 and had repaid 150,000 when she defaulted in repayments.

23. The respondent claimed in his evidence at the trial that, he had no idea that his mother had defaulted and that he was never consulted. A close look at the documents he tendered at the trial however reveals that he was in the picture because, going by P Exb. 2 (Page 30 of the record of appeal) the respondent offered himself as a guarantor for his mother. The Guarantor’s Form (P Exb.2) however reveals that he offered the following as security namely: -a)Televisionb)Video Machinec)Bicycled)Solare)2 bulls

24. The Form further reveals that he was guaranteeing her mother for kshs 100,000 and the total value of the assets used as collateral was indicated as kshs 109,000.

25. The appellant failed to adduce evidence to explain the disparity between the amount advanced and the amount guaranteed. Furthermore, the respondent denied that he offered his posho mill as a guarantee and the burden in my view shifted to the appellant during trial to show that apart from what was contained in the guarantor’s declaration form, the respondent had also offered the posho mill as security to justify their action to attach and dispose the same when the respondent’s failed in her obligation to repay the loan.

26. It is important to note that the appellants did not produce evidence in the trial court with regards to loan documents for the kshs 200,000/- advanced to the respondent’s mother. There was also no evidence indicating that the respondent’s posho mill had been utilized as security. The appellants have however introduced in the record of appeal (without leave) documents which they purport that they wished to have relied on in the trial court. The documents were not in the trial court’s record and they were also not mentioned in the appellants application dated November 19, 2014 whose intention was to arrest the trial court’s judgment (see page 59 of the record of appeal). The ground adduced in the application was that the appellants’ case had been closed in the absence of their counsel. The appellants did not file a list of documents indicating that they intended to rely on said documents.

27. The appellants had a legal and proper avenue to apply to this court at appellate stage to be allowed to adduce new evidence under the provisions of section 78 (1) (d) of the Civil Procedure Act and order 42 rule 27(1) (b) of the Civil Procedure Rules and this court could have heard them and determine the request on merit but instead of following the right channel the appellants for reasons known to them chose to sneak in the new evidence in the record of appeal (at page 71 to 90 of the Record of Appeal) without leave of this court. That in itself is an abuse of the process of court and blatantly illegal and could not have escaped the attention of this court.

28. This court finds that the trial court cannot be faulted by the failure of the appellants to adduce evidence in that court when they had more than sufficient time to do so.

29. In situations where a party in the proceedings repeatedly fails to present his/her evidence in court and the other opposing party has tendered his/her evidence the trial court is bound to bring litigation to an end by evaluating the evidence on record and rendering itself. Having rendered itself on what has been properly placed before it, the aggrieved party is at liberty to appeal just like the appellants in this matter have done but the work of an appellate court (save for situations where the appellant moves it to adduce new evidence) is simply to re-evaluate the evidence adduced at the trial. It cannot go outside the evidence laid before it.

30. In the case of Selle & Anor versus Associated Motor Boat Co. Ltd & Anor (1968) EA, the Court of appeal clearly stated that position and proceeded to add as follows: -“A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.” (See also LAW JA, Kneller & Hancox AG JJA In Mkube vs Nyamuro [1983] KLR, 403-415, AT 403).’’

31. In this instance, the appellants are faulting the trial court for closing their case in the absence of their counsel who was absent reportedly due to some illness. The record however shows that there was no communication made to the trial court regarding the indisposition of the appellants’ Counsel even though the appellants were in court themselves and made no indication regarding that fact. Moreover, looking at the doctor’s note in the treatment chit, exhibited in the trial court one can notice that it is dated September 12, 2014 while the matter was in court on September 25, 2014. The trial court as I have found out above was correct to disallow the appellant’ attempt to derail and delay finalization of the case.In the premises, this court finds no merit in this appeal The same is dismissed with costs to the respondent.

DATED, SGNED AND DELIVERED AT KITUI THIS 9TH DAY OF MAY, 2022. HON JUSTICE R K LIMOJUDGE