[2023] KEHC 24162 (KLR)

Ngugi & another v County Sand Conservation and Utilization Authority (Civil Appeal 40 of 2018) [2023] KEHC 24162 (KLR) (9 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24162 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 40 of 2018

GMA Dulu, J

October 9, 2023

Between

Benard Kangethe Ngugi

1st Appellant

Beekey Jeyen Limited

2nd Appellant

and

County Sand Conservation and Utilization Authority

Respondent

(Being an Appeal from the Judgement delivered by Hon. Runguru N. (PM) on 21st May 2018 at Makueni Law Courts in SPMCC No. 161 of 2016)

Judgment

1. In a judgment delivered on 21st May 2017, the Magistrate’s court at Makueni dismissed the plaintiff’s suit for being incompetent, bad in law and not properly before the court. The trial court also ordered each party to bear their own costs.

2. Dissatisfied with the decision of the trial court, the two appellants, who were the plaintiffs in the trial court, filed the present appeal through counsel Wangira Okoba & Company Advocates relying on the following grounds:-1. The honourable court erred in law and in fact by holding that the amended plaint ought to have been supported by another verifying affidavit. The appellant sought leave orally before the court and this leave was granted to allow them to amend the plaint. The amended plaint was admitted by the honourable court.2. The honourable court erred in law and fact by failing to appreciate that the 2nd appellant had filed a list of directors under the Companies Act who had authority to act for the company and on his own behalf as the 2nd plaintiff.3. The honourable court erred in law and fact by failing to appreciate the fact that the vehicles of the 1st and 2nd appellant had been unlawfully arrested. The vehicles had been installed with car tracking devices to aid in tracing the movements of the motor vehicles throughout the day and at night and they produced a report from a motor vehicle tracking company which showed that the vehicles had not ventured into the boundaries of Makueni County to collect sand.4. The honourable court erred in law and fact by failing to appreciate that the 1st and 2nd appellant were two distinct parties and that the 1st plaintiff played a dual role of being the 1st plaintiff and a director of the 2nd appellant hence competent to represent the 2nd appellant.5. The honourable court erred in law and fact by failing to take into consideration that for each day the vehicles remained detained, the plaintiffs continuously lost income of Kshs. 64,000/= per day and they produced evidence of sand delivery notes to their customers and a tabulation of income from the sand business.6. The honourable court erred in law and fact by failing to take into consideration that because of the unlawful detention of the appellants motor vehicles, they continued to lose income. The honourable court failed to consider all the evidence of sand purchases produced by the appellants in relationship to motor vehicles KCC 467Q and KCG 236S which were unlawfully arrested by the defendants.7. The honourable court erred in law and fact by failing to appreciate the evidence adduced by the appellants that the subject motor vehicles did not venture into Makueni County in any way to collect sand and the respondent was not clear on how and where the subject motor vehicles were arrested and by whom and yet he still insisted that the arrest was lawful.8. The honourable court erred in law and fact by failing to realize that there was a major contradiction between the pleadings filed by the respondent and the evidence adduced by its only witness.9. The honourable court erred in law and fact in failing to consider the appellants evidence of a report from a motor vehicle tracking company for the period when the motor vehicles were arrested and which the respondent agreed with to be accurate and the copies of receipts obtained upon payment for sand in Kajiado County.10. The honourable court erred in law and fact and misapplied the concept and law related to electronic evidence and the authorities tendered.11. The honourable court erred in failing to exhaustively sanitize the pleadings and annextures thereto.12. The honourable court erred in law and fact by failing to consider the evidence tendered and introduced considerations which were not presented before it.

3. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Wangira Okoba & Company Advocates for the appellants. The respondents counsel Kivuva Omuga & Company Advocates did not file any submissions, though I was informed that they were served with directions to file submissions.

4. This being a first appeal, I am expected to consider all the evidence on record afresh, re-evaluate the same and come to my own inferences and conclusions, but bear in mind that I did not have the opportunity to see witnesses testify to determine their demeanour, and give due allowance to that fact – see Selle =Versus= Associated Motor Boat Company Ltd (1968) EA 132.

5. In this appeal, there are technical as well as substantive issues, as the suit before the Magistrate’s court, was dismissed on technicality of being fatally defective. I will thus deal with the technical issue first.

6. On whether the amended plaint had to be accompanied by a further verifying affidavit, I am guided by the reasoning in the case of Swaleh Geitham Saamun =Versus= Commissioner for Lands & 5 Others (2002) eKLR that if the Legislative wanted an amended plaint to also be so accompanied by a further verifying affidavit, it would have provided so.

7. It is important to note that the main basis for filing the verifying affidavit is to avoid the mischief of filing a multiplicity of suits maybe in different courts in the country on the same subject matter. In an amendment or amended plaint situation, the case being the same old case where only some additions or subtractions have been made in the amendment to the plaint, in my view there is no justification for filing a further verifying affidavit.

8. The second technical issue has to do with whether there was a company resolution to allow the institution of the suit. The appellants counsel has referred to a number of decided cases including KCB =Versus= Stage Coach Management Ltd (2014) eKLR where the reasoning in the case of Assia Pharmaceuticals =Versus= Nairobi Veterinary Centre Ltd, HCCC No. 391 of 2000 that as a rule, the persons who have authority to act for the company can file suit was applied, but the majority of the members of the company are entitled to decide or even overrule the directors.

9. Counsel for the appellant has argued that the 1st appellant as director was properly before the court and thus had authority to sue on behalf of the company as director and relied on Section 104 (3) and (4) of the Companies Act, 2015.

10. In my view, since courts are not in a position to run the internal affairs of a company, it is proper to hold that prima facie directors or employees are authorized to sue on behalf of a company, unless there is a contest to their capacity and authority to bring the suit from any of the directors or the shareholders. Courts cannot act on an allegation by a stranger or outsider to the company to conclude that there was no authority or capacity to bring that suit by such officials.

11. I will thus find that the trial court was not correct in dismissing the appellant’s case for being incompetent, bad in law and not properly before the court.

12. I now go to the issue of proof of and assessment of general and special damages. Under Section 107 of the Evidence Act (Cap.80), the burden was on the appellant to prove their claim as pleaded in the plaint. The standard of proof, as this was a civil case, was on the balance of probabilities, and that proof was to be based on admissible and tangible evidence, and not on hearsay or worthless evidence.

13. In the present case, the 1st appellant was a director of the 2nd appellant. He was not in physical control of the two lorries when the said lorries were arrested. He did not load the sand, nor were the receipts issued to him. He was not driving the lorries when they loaded with the sand nor when the lorries were arrested. He was not the operator of the tracking device on the lorries, nor did he testify on how that tracking information is processed and transmitted.

14. In my view, the evidence relied upon by the appellants in proving liability and damages against the respondent is all hearsay evidence, and cannot be a basis to be relied upon by a court of law for proof of a claim.

15. In my view, the appellants should have called the lorry drivers, the Kajiado County Government officials and a person versed with the electronic functioning and transmission of the tracking systems of the two lorries in order to prove their claim against the respondent. Short of that, the evidence of the appellants, both oral, documentary and electronic remain hearsay evidence and worthless.

16. With regard to the claim for compensation for loss of business, the respondent cannot be liable to pay for loss of business unless there was evidence of wrongdoing or fault, which was not proved in the present case, as the vehicles were undisputably arrested in Makueni County area, and the two drivers who could have explained and proved the fault of the respondent were not called to testify.

17. I thus find that though the appellants had filed a competent case against the respondent, they did not prove fault against the respondents and also did not prove their claims for damages.

18. Consequently, and for the above reasons, I order as follows:-i.I set aside the order of the trial court dismissing the suit for being incompetent, bad in law and not properly before the court, and find that the suit was competent and properly before the court.ii.I find just like the trial Magistrate that the appellants did not prove fault or any of the damages claimed against the respondents.iii.The appeal is thus dismissed for the reason that fault or liability and consequent damages were not proved by the appellants against the respondent.iv.I order each party to bear their costs of appeal.

DATED, SIGNED AND DELIVERED THIS 9TH DAY OF OCTOBER 2023 VIRTUALLY AT VOI.GEORGE DULU...................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR