[2023] KEHC 26896 (KLR)

Mulandi v Swaleh t/a Galba Petroleum Ltd (Civil Appeal 38 of 2022) [2023] KEHC 26896 (KLR) (13 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26896 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 38 of 2022

SM Githinji, J

December 13, 2023

Between

Paul John Mulandi

Appellant

and

Mohamed Swaleh t/a Galba Petroleum Ltd

Respondent

(Being an Appeal of the Judgment of Resident Magistrate Hon J.K.Onalo sitting at Malindi Law Courts made on 25th March, 2022 in Cmcc No.322 of 2018)

Judgment

1. This appeal arises from the judgment of Hon. J.K Onalo RM delivered on 25th March 2022 in CMCC No. 322 of 2018 wherein judgment was entered in the following terms;a.The plaintiff’s claim as per the amended plaint dated 24/9/2019 at prayer 1a and 1b is disallowed.b.The plaintiff is awarded nominal damages of Kshs. 30,000/=.c.No orders as to costs.d.The counter claim succeeds with costs to the defendantDissatisfied with the judgment, the appellant lodged the instant appeal on the following grounds;

2. The honourable trial magistrate erred in law and fact in finding that the respondent had established a prima facie case yet there was overwhelming evidence that the control, running and management of the appellant’s business premise, was illegally stopped by the respondent and the respondent has been in occupation to date which is tantamount to continued tort of trespass and as such no cause of action can be found on an illegality thus the magistrate arrived at a wrong decision.

3. The trial magistrate erred in law and in fact by appreciating that the genesis of dispute was failure by the appellant to service his loan on time and that the remedy was not to take over appellants business premise and operate it but to enforce the contract if any in court of law and having resorted to an illegality the respondent and/or frustrated its own contract hence the counter claim ought to be dismissed with costs being that a court cannot aid any litigant whose action is based on illegality. She thus arrived at a manifestly unjust decision.

4. The learned magistrate erred in law and fact by failing to appreciate that in one’s exercise of right of lien, the trite rule is that you hold on the goods until payment is done and in case of failure, you seek court order to direct and or chattel on a manner on how to deal with the appellant’s business thus arriving at an erroneous wrong decision.

5. The learned magistrate erred in law and fact by appreciating the plaintiff’s case but failed to award him damages.

6. The learned magistrate erred in law and fact by awarding damages to the respondent when it was a matter of fact, law and evidence that the respondent breached contract through frustrations and subjecting appellant’s lien/property into criminal act and as such the court ought not to aid but to struck out respondent’s entire claim thus arriving at a wrong decision.

7. The learned magistrate erred in law and fact while awarding damages by failing to appreciate that appellant proved his case on all balances of probability, law, facts and evidence and instead awarded his nemesis whose counter claim was based on illegality of trespass and only the suit property only after being arrested by government multi agencies EPRA and KRA and sealing of the suit property and the illegal petroleum therein at appellants detriment thus arriving at a manifestly unjust decision.

8. The learned trial magistrate appreciated the case but while delivering a judgment abused her discretion by subjecting the appellant into a punitive situation despite having suffered prejudice as a result of inactions and omissions of the appellant.

Evidence at Trial 9. PW1 Paul Mulandi the plaintiff testified that he used to run a service station. That in May 2018, he approached the defendant to supply him with fuel for his service station on credit terms which was agreed to. He stated that in August 2018, business was not good thus he took a loan from Fast Generation, a sum of Kshs. 200,000 which he repaid save for a balance of Kshs. 97,500. That following the failure to repay the balance they sent auctioneers to the station which information the defendant got wind of and since they were still doing business he offered to offset the loan balance so that it would be added to the amount owed to the defendant. It was his testimony that the defendant then sent him an agreement on WhatsApp demanding that he pays the sum of Kshs. 1,156,100/= or he (the defendant) takes over the station for five years. He further told the court that he did not agree to the terms of the agreement as there was a dispute to the amounts owed. Nonetheless, the defendant took over the running of the station.

10. It was his additional testimony that during the pendency of the case, on 10/4/2019 officers from InterTech sent by EPRA visited the station and sent him a letter dated 25/4/2019 indicating that they visited the station and found that the petrol there was illegal and meant for export.

11. On cross examination by Mr. Shujaa for the defendant he stated that the rent of the premises was Kshs. 20,000 which he stopped paying in September 2018. He told the court that there was an amount owed to the defendant but disputed that the same amounted to Kshs. 1, 115, 000/=.

12. DW1 Mohamed Swaleh the defendant who is the director of Galba Petrol adopted his witness statements dated 28/11/2018 and 23/3/2021 as his evidence in chief. He produced as DEX 1-7 documents as per the list of documents dated 28/11/2018. He added that in August 2018 the amount owed was Kshs. 807,500 and later paid the loan balance of Kshs. 97,500 plus auctioneer fees of Kshs. 9,630. He further told the court that he was not in possession of the premises but the landlord had taken possession.

Analysis and Determination 13. The appeal was canvassed by way of written submissions. I have considered the appeal and the grounds on which it’s set upon, submissions by parties and the authorities relied on. I have also perused the trial court’s record and the impugned judgment. This being a first appeal, it is by way of a retrial, and parties are entitled to this court’s reconsideration, reevaluation and reanalysis of the evidence on record in order to arrive at its own independent conclusion. The court should however bear in mind that the trial court had the advantage of seeing the witnesses testify and give due allowance for that.

14. In Williamson Diamonds Ltd and another v Brown [1970] EA 1, the court held that:The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.”

15. From the memorandum of appeal, the grounds of appeal set out therein can be coalesced into one sole issue for determination; whether the trial court was justified in dismissing the plaintiff’s claim as prayed in the plaint and allowing the defendant’s counter claim.

16In the plaint, the plaintiff sought an order restraining the defendant either by themselves, their agents, assign, legal representatives, servants and/or employees or any other person working for or on its behalf from harassing, vexing, threatening plaintiff with taking up his business concern being SEBI Filling Station. Though not expressly stated, the order sought is in the nature of a permanent injunction.

17. In Giella v Cassman Brown [1973] EA 358 the guiding principles on applications for injunctory relief were as follows:i.The applicant must show a prima facie case with a probability of success.ii.An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.iii.When the court is in doubt it will decide the application on a balance of convenience.

18. The evidence led by the plaintiff was that the defendant had taken possession of the petrol station over a contested amount of money due to the defendant. Upon cross examination, it was his statement that he had paid rent for the premises in September 2018. The defendant on his part admitted that he had run the service station for a while though the same was not in his possession but that of the landlord. From the evidence presented before the trial court, there is nothing to demonstrate that the defendant was in possession or threatening to take control of the service station. It was incumbent upon the plaintiff to demonstrate the same as provided for under Section 107 of the Evidence Act. The same in my view has not been satisfactorily proved. That said, I do not find fault in the trial court for dismissing the plaintiff’s claim.

19. The defendant on his part sought a counter claim against the plaintiff for the sum of Kshs. 807,500 being the purchase price for petroleum products supplied to the plaintiff on credit basis. The defendant in his list of documents produced by consent availed a statement of account that detailed the monies paid by the plaintiff and that which is owed for the products supplied. Noteworthy, is the fact that the said statement of account was produced by consent and the plaintiff did not produce any statement of account in rebuttal. In the circumstance therefore, the defendant proved that the plaintiff indeed owed him the sum of Kshs. 807,500. Thus, I find no fault in the trial court’s finding on the same. The upshot is that the appeal fails in its entirety for lack of merit and the same is hereby dismissed with costs to the respondent.

JUDGMENT READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 13TH DAY OF DECEMBER, 2023. S.M.GITHINJI...............................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR