[2023] KEELC 18717 (KLR)

Mwangi v Leshomo (Environment and Land Appeal E016 of 2021) [2023] KEELC 18717 (KLR) (6 July 2023) (Judgment)

Neutral citation: [2023] KEELC 18717 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyahururu

Environment and Land Appeal E016 of 2021

YM Angima, J

July 6, 2023

Between

Sarah Njeri Mwangi

Appellant

and

Komito Leshomo

Respondent

Judgment

A. Introduction 1. This is an appeal against the judgment and decree of Hon. Richard Koech (SPM) dated August 19, 2021 in Maralal SPM ELC No 14 of 2019 – Komito Leshomo v Sarah Njeri Mwangi. By the said judgment, the trial court allowed the Respondent’s suit for a refund of the purchase price he had paid the Appellant for the purchase of the suit property. The Respondent was also awarded interest and costs of the suit.

B. Background 2. The material on record shows that by a plaint dated December 10, 2019 the Respondent sued the Appellant seeking the following reliefs:(a)A refund of the full purchase together with interest until payment in full.(b)Costs of the suit.

3. The Respondent pleaded that sometime in July – August, 2019 the Appellant through her agents offered to sell him Plot No 26 Maralal Town (Opposite PCEA area) measuring 50ft x 100ft at a sum of Kshs. 1,400,000/=. The Respondent pleaded that he required the said plot for construction of commercial – residential houses. It was further pleaded that the said plot was un-surveyed at the material time.

4. It was the Respondent’s case that upon purchase of the said plot he discovered that the same fell on a riparian reserve and that it was smaller than 50ft x 100ft. He further pleaded that the plot had no access road and that the County Surveyor had informed him that he could not undertake survey on a riparian reserve.

5. It was the Respondent’s contention that the said plot was not suitable for the purpose for which he bought it and blamed the Appellant for misrepresentation and concealment of material facts on the status of the plot. He consequently pleaded several particulars of alleged fraud and misrepresentation on the part of the Appellant. He, therefore, sought to resile from the agreement and to recover the purchase price paid.

6. By a defence dated January 15, 2020 the Appellant denied liability for the Respondent’s claim. She admitted having sold Plot No 26 to the Respondent at an agreed consideration of Kshs. 1,400,000/= and pleaded that she fulfilled her part of the agreement by transferring the plot to the Appellant.

7. The Appellant denied that the said plot was on a riparian reserve as claimed by the Respondent and put him to strict proof thereof. She also denied that the plot had no access road. She denied the fraud and misrepresentation alleged against her and pleaded that she simply sold the plot on the basis of “where is as basis” and that the Respondent had all the time to verify all the necessary details of the plot prior to the sale.

8. Consequently, the Appellant contended that the Respondent had no cause of action against her and that the suit was bad in law, vexatious and otherwise an abuse of the court process. Accordingly, she prayed for dismissal of the Respondent’s suit with costs.

9. The Respondent field a reply to defence dated January 22, 2020 in which he joined issue on the Appellant’s defence and reiterated the contents of his plaint. He stated that the suit property fell within a riparian reserve a fact which was well known to the Appellant at the time she sold the same.

C. Trial Court’s Decision 10. The record shows that upon a full hearing the trial court found and held that the Respondent had proved his claim to the required standard and entered judgment in his favour. The trial court held that there was evidence to demonstrate that Plot No 26 was non-existent and that the letter of allotment for it was fraudulently obtained to the knowledge of the Appellant. The Appellant was consequently ordered to refund the purchase price of Kshs. 1,400,000/= together with interest thereon. The Appellant was also ordered to bear costs of the suit.

D. Grounds of appeal 11. Being aggrieved by the said judgment and decree the Appellant filed a memorandum of appeal dated September 10, 2021 raising the following four (4) grounds of appeal:(a)The learned trial magistrate erred in law and fact in holding that the Appellant sold a non- existent plot with an intention to defraud whereas the plot in issue was actually identified to the court as Plot No 22 on the ground and the only dispute related to the informal number assigned thereto by the County Government of Samburu.(b)The learned trial magistrate erred in law and fact in finding without evidence that the plot allocation letter dated July 30, 2019 signed by one Simon Letambul and issued in favour of the Respondent was a fraudulent document made by the Appellant in cahoots with County Officials to hoodwink the Respondent into thinking that he was acquiring a valid title of a non-existent plot with a view to defrauding him of his hard- earned cash.(c)The learned trial magistrate erred in law and fact in failing to find that in the absence of a registered survey in respect of the block where the suit plot is located, the informal number assigned thereto by the County Government of Samburu was only temporary and the use thereof in documents issued to the Respondent by the County Government could not invalidate the sale transaction.(d)The learned trial magistrate erred in law and fact in finding that the Respondent had proved his case on a balance of probabilities and thereby passed a judgment that was against the evidence.

12. As a result, the Appellant sought the following reliefs in the appeal:(a)That the appeal be allowed.(b)That the Respondent’s suit in the subordinate court be dismissed with costs.(c)That costs of the appeal be awarded to the Appellant.

E. Directions on Submissions 13. When the appeal was listed for directions, it was directed that the same shall be canvassed through written submissions. Consequently, the parties were granted timelines within which to file and exchange their respective submissions. The record shows that the Appellant’s submissions were filed on May 16, 2023 whereas the Respondent’s submissions were filed on May 1, 2023.

F. Issues for Determination 14. Although the Appellant raised four (4) grounds of appeal, the court is of the opinion that the appeal may be effectively determined by resolution of the following key issues:a.Whether the trial court erred in law and fact in holding that the Respondent had proved his claim to the required standard.b.Who shall bear costs of the appeal.

G. Applicable Legal Principles 15. This court as a first appellate court has a duty to analyze, reconsider and re-evaluate the entire evidence on record so as to satisfy itself as to the correctness or otherwise of the decision of the trial court. The principles which guide a first appellate court were summarized in the case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 at p.126 as follows:“…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 that respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression on the demeanor of a witness is inconsistent with the evidence in the case generally.”

16. Similarly, in the case of Peters v Sunday Post Ltd [1958] EA 424 Sir Kenneth O’ Connor, P. rendered the applicable principles as follows:“...it is strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon the evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellate court might itself have come to a different conclusion...”

17. In the same case, Sir Kenneth O’Connor quoted Viscount Simon, L.C in Watt v Thomas [1947] A.C. 424 at page 429 – 430 as follows:“My Lords, before entering upon an examination of the testimony at the trial, I desire to make some observations as to the circumstances in which an appellate court may be justified in taking a different view on facts from that of a trial judge. For convenience, I use English terms, but the same principles apply to appeals in Scotland. Apart from the class of cases in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of court, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a Tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other Tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.”

18. In the case of Kapsiran Clan -vs- Kasagur Clan [2018] eKLR Obwayo J summarized the applicable principles as follows:(a)First, on first appeal, the court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;(b)In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and(c)It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.

H. Analysis and Determination (a) Whether the trial court erred in law and fact in holding that the Respondent had proved his claim to the required standard 19. The court has considered the material and submissions on record on this issue. The Appellant faulted the trial court for, inter alia, holding that Plot No 26 was non-existent and that the plot allocation letter dated July 30, 2019 issued to the Respondent was fraudulent whereas there was no evidence on record to support such findings. The Appellant submitted that the assignment of Plot No 26 was only temporary and that the actual suit property was Plot No 22.

20. The court has noted from the material on record that the Respondent’s key grievances before the trial court were that part of the suit property fell on a riparian reserve and that it was smaller than the 50ft x 100ft which he intended to buy. He further contended that it had become impossible to survey the plot and use it for the purpose for which he had bought it. The Appellant, on the other hand, maintained that Plot No 26 was a genuine plot which she had bought from a previous allotee, Isaac Juma in 2017. She further stated at the trial that there was an error in the numbering of the plots which shall be corrected by the relevant offices later on.

21. The court has noted that in a bid to demonstrate that Plot No 26 was genuine she produced a copy of an advisory plan and a beacon certificate to demonstrate that it was beaconed. However, an examination of the advisory plan shows that the plot numbers therein run up to Plot No 25 only whereas a perusal of the beacon certificate shows that it was issued for Plot No 19.

22. The court has further noted that there are no copies of allocation records in respect of the initial allocation to Isaac Juma were tendered at the trial. The said Juma although listed as a witness by the Respondent was not called to testify at the trial. There were also no records to show that the Appellant had any legal interest in the said Plot No 26 which she purported to sell to the Respondent. In fact, the evidence on record shows that when the trial court made a site visit to the suit property Plot No 26 was found to be non-existent on the location where the Appellant claimed it was located.

23. The court believes the evidence of the Acting Chief Officer Lands of the County Government of Samburu who stated that a plot allocation letter is usually signed by the Accounting Officer of the concerned department who is the Chief Officer – Lands. The court, therefore, agrees with the finding of the trial court that the plot allocation letter dated 30. 07. 2019 was fraudulent since it was not signed by the authorized accounting officer. It is telling that this letter was procured by the Appellant herself and handed to the Respondent after the purported sale of Plot No 26.

24. The court does not accept the Appellant’s submission that there was a mistake or error in the numbering of Plot No 26. She was categorical both in her defence and witness statement that what she sold and transferred to the Respondent was Plot No 26. It was only during her cross-examination by the Respondent’s advocate that she claimed that the suit property could be Plot No 22 on the ground after it was pointed out that Plot No 26 was not in the advisory plan.

25. It would appear that even though the Respondent’s initial allegation that Plot 26 was partly on a riparian reserve was not proved at the trial, the evidence on record revealed that the said plot was completely non-existent. In those circumstances should the Appellant, nevertheless, be allowed to retain the purchase price of the Kshs. 1,400,000/=? The court is of the view that there was a total failure of consideration hence it would be inequitable to allow the Appellant to retain the money for non-existent plot. The court does not agree with the Appellant’s contention that she sold Plot No 26 on “where is as is” basis and in “broad daylight” hence if the plot was non-existent then it was not her fault. It was further contended that the Respondent was given copies of the relevant plot ownership documents at least 2 weeks before he paid the purchase price hence he had sufficient time to verify their genuineness. The court takes the view that a vendor of property warrants at the very least that the property is in existence and that he has title to sell it.

26. In the premises, the court finds no fault in the decision of the trial court holding that the Appellant should refund the entire purchase price to the Respondent together with interest thereon with effect from 09. 09. 2019 until payment in full.

b) Who shall bear costs of the appeal 27. Although costs of an action or proceeding are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. SeeHussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd [1967] EA 287. The court finds no good reason why the successful party should not be awarded costs of the appeal. Accordingly, the Respondent shall be awarded costs of the appeal.

I. Conclusion and Disposal Orders 28. The upshot of the foregoing is that the court finds no merit in the Appellant’s appeal. Accordingly, the court makes the following orders for disposal thereof:

(a)The appeal be and is hereby dismissed.(b)The judgment and deceree of the trial court dated August 19, 2021 in Maralal SPM ELC No 14 of 2019 is hereby upheld.(c)The Respondent is hereby awarded costs of the appeal.It is so decided.

JUDGMENT DATED AND SIGNED AT NYAHURURU AND DELIVERED VIA MICROSOFT TEAMS PLATFORM THIS 6TH DAY OF JULY, 2023. In the presence ofMs. Muigai for the AppellantMr. Kihoro for the RespondentC/A - Carol............................Y. M. ANGIMAJUDGE