[2024] KEHC 11320 (KLR)

Mutiso v Nzioka & another (Civil Appeal E113 of 2022) [2024] KEHC 11320 (KLR) (24 September 2024) (Judgment)

Neutral citation: [2024] KEHC 11320 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E113 of 2022

MW Muigai, J

September 24, 2024

Between

Nathan Musyoka Mutiso

Appellant

and

Sebastian Mutunga Nzioka

1st Respondent

Kasevu Muindi

2nd Respondent

(Being an appeal from the judgment of the Hon, Martha Opanga (M/s), Senior Resident Magistrate dated and delivered on 19. 7.2022 in CMCC No E68 of 2021, Kangundo)

Judgment

1. The Appellant was the Plaintiff in the Trial Court wherein he sued the Defendants for the sum of Kshs 70,410, interest from 7. 02. 2016 until payment in full and costs. The cause of action is said to have arisen on 14. 01. 2016 wherein the plaintiff who alleges to engaged the defendants as his agents to receive the purchase price of Kshs 160,000 for the sale of land following a sale agreement with one Lucy Mutisya. The Plaintiff alleged that the money was paid by the purchaser through his advocates in instalments of Kshs 75,000 and Kshs 70,000 and the defendants only sent him Kshs 74,590. 00 in two installments of Kshs 37,890 and Kshs 36,700.

2. The Defendants filed a joint statement of defence on 25. 05. 2021 in which they denied the contents of the Plaint and avered that there was no contractual relationship between the Plaintiff and themselves and as such there was no nexus between the alleged sale of land by the Plaintiff and the Defendants. The court was urged to dismiss the suit with costs.

3. The matter proceeded for hearing.

4. The Plaintiff was PW1. He adopted his statement and further stated that he grew up with the defendants since he was a child. He denied knowing Lucy and stated that she was introduced to him by Sebastian Mutunga. He stated that Lucy paid the purchase price of Kshs 160,000 in full and he was given less money which the defendants said was their commission. He produced the following documents;a.Agreement dated 24. 01. 2016b.Demand letter dated 5. 03. 2021c.Translated version of the agreement dated 24. 01. 2016

5. Upon Cross examination, he stated that his wife’s name was Jackline Nduku and she was there as his representative. He stated that the agreement that he be paid was not written down and they paid him through Mpesa and he did not ask for a refund.

6. In re-examination, he stated that the Defendant was to sell and send him all the money and when he asked for the money, they told him it was their commission.

7. The Defence called two witnesses.DW1 was the 1st Defendant relied on his statement in which he stated that sometime in 2016 they undertook brokerage at an agreed charge that was payable upon finding a prospective buyer for the Plaintiff’s property and the extend of the relationship between the plaintiff and the defendants was limited to finding a buyer. He stated that they found a buyer, Mutisya Kiilu and on the date of executing the agreement, the Plaintiff indicated that he was held up at work and would send his wife Nduku Musyoka to execute the sale agreement on his behalf. The purchase price was Kshs 160,000 and the first instalment was Kshs 75,000 which was handed over to the wife and she acknowledged receipt by appending her signature on the agreement for him and herself as the witness, thereafter she was adamant on paying the brokerage fees.

8. He stated that they went to different Mpesa shops but none had float and she went back home with Kshs 37,000 which amount the plaintiff was aware of. The wife was present when the 2nd instalment was paid and she received Kshs 70,000. He stated that the 3rd Instalment was of Kshs 15,000 which was sent by the buyer via Mpesa. He denied receiving any monies and averred that the Plaintiff started raising unsubstantiated claims when he realized that he had sold his property for a low price.

9. Upon Cross examination, he stated that they agreed with Nathan to sell his plot and he would send the wife. He stated that they agreed that he looks for a buyer and the purchase price was Kshs 160,000 and she was only to get ‘chai ya wazee’. He stated that Musyoka’s wife received the money. That Musyoka’s wife told him to write the agreement and Musyoka sent his wife on 24. 04. 2016 when Kes 75,000 was paid. He stated that the next payment was 7. 2.2016 and Nathan’s wife did not pay them

10. DW2 was Kasevu Muindi Peter adopted his statement in which he stated that in which he stated that sometime in 2016 they undertook brokerage at an agreed charge that was payable upon finding a prospective buyer for the Plaintiff’s property and the extend of the relationship between the plaintiff and the defendants was limited to finding a buyer. He stated that they found a buyer, Mutisya Kiilu and on the date of executing the agreement, the Plaintiff indicated that he was held up at work and would send his wife Nduku Musyoka to execute the sale agreement on his behalf and herself as the witness. The purchase price was Kshs 160,000 and the first instalment was Kshs 75,000 which was handed over to the wife and she acknowledged receipt by appending her signature on the agreement, thereafter she was adamant on paying the brokerage fees.

11. He stated that they went to different Mpesa shops but none had float at which point the Plaintiff called his wife nonstop enquiring about the delay in sending the monies. She switched off her phone and the Plaintiff started calling the defendants. He stated that the Plaintiff’’s wife requested him to deposit the money in his Mpesa so he could send the money to the Plaintiff which he agreed to and Kshs 38,000 was deposited. He stated that the wife told him that the balance was to be kept for use by their household. He indicated that he called the Plaintiff before sending Kshs 38,000 which he was okay with, he send it and a transaction fee of Kshs 141 was deducted thus he received Kshs 37,890.

12. He stated that the wife was present when the 2nd instalment was paid as the Plaintiff was not available and she received Kshs 70,000 which she said she would send the Plaintiff via Mpesa. He stated that the 3rd Instalment was of Kshs 15,000 which was sent to the Plaintiff via Mpesa. He denied receiving any monies and averred that the Plaintiff started raising unsubstantiated claims when he realized that he had sold his property for a low price. He stated that he was in constant communication with the Plaintiff through phone calls with the aim of informing him about the transaction and denied breaching any duty.

13. Upon Cross examination, he stated that Nathan told him to look for a buyer and he was not to be paid the same, the buyer was to pay him commission. He stated that Nathan’s wife deposited money into his phone and Nathan did not ask for the balance. He indicated that he signed the agreement as a witness for Mutisya and Nathan.

14. In re-examination, he stated that his wife deposited Kshs 30,000 into his phone and she remained with the balance.

Trial Court Judgement 15. The court in its judgment delivered on 19. 07. 2022 and the court found that the Plaintiff had not proven that the defendants owed him money at all thus dismissed the suit with costs to the defendants.

The Appeal 16. Dissatisfied by this decision, the Appellant filed a memorandum of appeal on 4. 08. 2022 seeking to have the judgment set aside and he be granted costs of the appeal on the grounds that;a.The learned Trial Magistrate erred in law and fact by making a finding that the Respondent’s work was limited to finding a prospective buyer for the Appellants’ property.b.The learned Trial Magistrate misdirected herself by failing to appreciate that the Respondent did not produce evidence to prove their allegation that it is the Appellant’s wife who received the money.c.The learned Trial Magistrate erred in law and fact by making a finding that the Appellant did not call his wife as a witness.d.The learned Trial Magistrate erred in law and fact by failing to take into account the Appellant’s submissions and failing to give due regard to the Appellant’s evidence whilst making the determination thus arriving at a wrong conclusion.e.The learned Trial Magistrate erred in law and fact by making a finding that the Appellant had not proven that the Defendants owed him money.f.The learned Trial Magistrate erred in law and fact by failing to determine the case on the basis of law and the available evidence before her.

17. The Appeal was canvassed by way of written submissions.

Submissions Appellant’s Submissions 18. The Appellant filed submissions on 30. 07. 2024 and submitted that the presence of the Respondents at the final stage yet their instructions were limited to sourcing for the buyer signifies that they were to proceed up to the tail end of the transaction. Secondly, it was submitted that the allegation that his wife received the monies was not proven and the allegation that the Appellant failed to call her as a witness was void ab initio as he did not intend to do so. He stated that his contention was with the Respondents and not his wife. Thirdly, it was submitted that the 1st instalment was sent by the 2nd Respondent which means they received the monies and resorted to making partial payments to the Appellant. Reliance was placed on the case of Synergy Industrial Credit Limited vs Oxyplus International Limited & 2 others [2021] eKLR.

19. The Respondent filed submissions on 22. 07. 2024 and contended that the Appellant did not prove his case as the burden of proof lay with him. Further, that the Respondent’s testimony was corroborated by the sale agreement which shows that they were witnesses. That the Appellant ought to have questioned his wife who was the money bearer, not the Respondents.

20. While relying on the case of Kazungu Ngari Yaa vs Mistry V Naran Mulji [2014] e KLR, It was submitted that the firm of Eric N Amati and Co Advocate failed to comply with order 9 rule 9 of the Civil Procedure Rules 2010 as they did not obtain leave of court as new advocates coming on record post judgment. The Court was this asked to expunge the submissions from the record as failure to comply was fatal. They also asked for costs of the Appeal.

Determination 21. I have considered the Trial Court record, the memorandum of Appeal and the submissions on record and find the issues for determination as follows;a.Whether the Appellant proved its case on a balance of probabilitiesb.Whether the Appellants submissions should be expunged for failure to comply with order 9 Rule 9.

22. This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

23. The Appellant contends that he entered into an agreement with the Respondents for payment of Kshs 160,000 but they only gave him Kshs 74,590/- thus he was claiming Kshs 70,410 from the Defendants. It is trite law that he who alleges must prove. Section 107 to 109 of the Evidence Act provides that;107. Burden of proof(1)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.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. Incidence of burden The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. Proof of particular fact The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

25. The question before this court is whether the Appellant has indeed proven that there was an agreement between the parties. The Court of Appeal in William Muthee Muthami versus Bank of Baroda (2014) eKLR, stated that for a contract to be valid under the law of contract, it must be proved that there was offer, acceptance and consideration.“In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the party in breach.”

26. The agreement that was produced before this court is a sale agreement between the Appellant and Lucy Mutisya for Kshs 160,000. The parties ought to have called the said Lucy Mutisya to tell the court to whom she paid the monies and the dates of the transaction. The Respondent made reference to the Appellant’s wife, one Nduku as being the person who received the money. DW1 and DW2 indicated that she is the one who sent the monies to the Appellant via Mpesa and retained some of the cash. For clarity, the parties should have had her called in as a witness and she would have shed light on whether or not she received the money, and if so how much and how she dispatched the same. There was also need for the Appellant to tell the court how he received the monies and if there were indeed via Mpesa, produce evidence of the same. Both parties have admitted that they had an oral agreement, it is the terms that are not clear and the court cannot be the one to make the terms or interpret what it was not a party to.

27. At this juncture, I am inclined to agree with the Trial Court that the Appellant did not prove its case on a balance of probabilities.

28. On the second issue of whether the submissions by the Appellant should be expunged from the record for failure to comply with order 9 rule 9 of the Civil Procedure Rules,2010. The said order reads as follows;Order 9 Rule 9 of the Civil Procedure Rules, 2010 provides for change of Advocates to be effected by order of Court or consent of parties to wit:When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court —a.upon an application with notice to all the parties; orb.upon a consent filed between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person as the case may be”

26. The Court in the case of James Ndonyu Njogu v Muriuki Macharia [2020] eKLR in determining such an issue stated as follows;6. Clearly the provisions of Order 9 Rule 9 of the Civil Procedure Rules make it mandatory that for any change of Advocates after judgment has been entered to be effected, then there must be an order of the Court upon application with notice to all parties or upon a consent filed between the outgoing Advocate and the proposed incoming Advocate. The reasoning behind the provision was well articulated in the case of S. K. Tarwadi vs Veronica Muehlmann [2019] eKLR where the judge observed as follows:“…In my view, the essence of the Order 9 Rule 9 of the CPR was to protect advocates from the mischievous clients who will wait until a judgment is delivered and then sack the advocate and either replace him….”5. In the case of Lalji Bhimji Shangani Builders & Contractors –vs- City Council of Nairobi [2012] eKLR the Court held as follows:“A party who without any justification decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective for assistance and where no explanation has been offered for failure to observe the Rules of procedure the court may well be entitled to conclude that failure to comply therewith was deliberate.”The court went further to quote with approval the holding by Hon. Sitati Judge, in Monica Moraa –vs- Kenindia Assurance Co. Ltd. [2010] eKLR where the court held as follows:“……there is no doubt in my mind that the issue of representation is critical especially in case such as this one where the applicant’s advocates intent to come on record after delivery of judgment. There are specific provisions governing such change of advocate. In my view the firm of M/S Kibichiy & Co. Advocate should have sought this court’s leave to come on record as acting for the applicant. The firm of M/S Kibichiy & Co. has not complied with the Rules and instead just gone ahead and filed Notice of Appointment without following the laid down procedures. The issue of representation is vital component of the civil practice and the courts cannot turn a blind eye to situations where the Rules are flagrantly breached……….”…………….11. Although the Applicant has a Constitutional right to be represented, yet where there are clear provisions of the law regulating the procedure of such representation, the same should be adhered to. The procedure set out under Order 9 Rule 9 above is mandatory and thus cannot be termed as a mere technicality.11. Although the Applicant has a Constitutional right to be represented, yet where there are clear provisions of the law regulating the procedure of such representation, the same should be adhered to. The procedure set out under Order 9 Rule 9 above is mandatory and thus cannot be termed as a mere technicality.12. Having found that this procedure was not followed by M/S Nyiha, Mukoma & Company Advocates, the said firm is not properly on record, and has no legal standing to move the Court on behalf of the Applicant and therefore all pleadings filed by it ought to be struck out.13. Consequently, and in the absence of such leave of court as provided by the law, the application by Notice of motion under certificate of urgency dated the 13th December 2019 filed by the firm of M/S Nyiha, Mukoma & Company Advocates is hereby struck out with costs to the Respondent.”

26. In this case judgment was entered on 19th July 2022 and the Appellant had been represented by the firm of Wayua and Leitoro Company advocates until submissions were filed on behalf of the Appellant by the firm of Eric Amati & Co Advocates dated 9th May 2024. Consequently, without leave of court, the submissions dated 9th of May 2024 are struck out with costs to the Respondent.

27. To this end, the Appeal fails and the same is dismissed with costs to the Respondents.

JUDGMENT DELIVERED, SIGNED AND DATED IN OPEN COURT ON 24THSEPTEMBER, 2024 IN MACHAKOS HIGH COURT (VIRTUAL/PHYSICAL CONFERENCE).M.W. MUIGAIJUDGE