[2023] KEHC 25419 (KLR)

Sekapchanga v Mulongo & 2 others (Civil Appeal 22 of 2016) [2023] KEHC 25419 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25419 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal 22 of 2016

DK Kemei, J

November 17, 2023

Between

Kingsley Mutali Sekapchanga

Appellant

and

Anne Mulongo

1st Respondent

Emmanuel Mulongo

2nd Respondent

Majune Kraifo & Company Advocates

3rd Respondent

(Being an appeal from the judgement of the Magistrate’s court at Webuye in SRMCC No. 186 of 2005 by Hon. C.N Oruo (Rm) delivered on 25{{^th}} April, 2016)

Judgment

1. The appellant was the defendant before the subordinate court after the 1st and 2nd respondents filed a suit against him seeking the recovery of Kshs 158,000/- plus interest at 25% from 2003 to date of filing suit as well as costs of the suit. The 1st and 2nd respondents had sold the appellant six parcels of land comprised in land parcel no. Ndivisi/Mihuu/211 at the price of Kshs 360,000/-. They alleged that the appellant paid a total of Kshs 202,000/- leaving a balance of Kshs 158,000/-.

2. The appellant in his statement of defence averred that he had paid the full consideration as the balance of Kshs 158,000/- was deposited with the advocates for the 1st and 2nd respondents.

3. The 3rd respondent who was admitted as the third party filed its statement of defence and disputed that the amount of Kshs 158,000/- was owing. According to the 3rd respondent, the correct amount owing to the 2nd respondent was Kshs 145,000/- on the grounds that he received Kshs 20,000/- from the 3rd respondent.

4. After an elaborate hearing, the trial magistrate entered judgment in favour of the 1st and 2nd respondents against the appellant for Kshs 158,000/- being the outstanding balance of the purchase price plus interest at 14%.

5. The appellant is aggrieved by the finding of the subordinate court and thus challenged the same on the following grounds:1. That the learned trial magistrate erred in law and in fact in allowing the 1st and 2nd respondent’s claim when the same had not been proved on a balance of probability as required by law.2. That the learned trial magistrate erred both in law and in fact in holding that interest be calculated at the rate of 14% from the date of default contrary to the evidence on record.3. That the learned trial magistrate erred both in law and in fact in holding that any payments made by the appellant to the 3rd respondent were meant for other purposes when it was clear from the evidence on record that the appellant’s evidence was not challenged by the 3rd respondent who chose not to offer any evidence.4. That the learned trial magistrate erred in both law and fact by failing to consider and analyse the evidence of the appellant against the 3rd respondent.5. The learned trial magistrate erred in law and in fact when it held that the 3rd respondent did not file any pleadings when it was clear from the record that the 3rd respondent filed his statement of defence in court on 19th April 2006. 6.The learned trial magistrate did not fairly analyse the evidence of the appellant vis-à-vis the testimony of the 2nd respondent.7. The learned trial magistrate misapprehended the entire claim of the appellant against the 3rd respondent.

6. The appeal was canvassed by way of written submissions. The appellant filed his submissions on 21/8/2023 while the respondents have not filed any submissions as at the time of writing this judgement.

7. The appellant in his submissions argues that there existed no advocate-client relationship between the appellant and the 3rd respondent. The appellant denied that it instructed the 3rd respondent to act for him in any case and asserted that the money sent to them was to be transmitted to the 1st and 2nd respondents. The 3rd respondent did not provide any evidence to account for the money they claimed were fees for legal services. The appellant contends that the 3rd party did not prove its case as required under section 107 of the Evidence Act. That the trial magistrate erred in law and fact by failing to consider the evidence that was produced by the appellant which showed the 3rd respondent received money on behalf of his clients and that he failed to establish that there existed no advocate-client relationship between the said parties.

8. They also advanced that the appellant was clear in his evidence that he paid all the balance of the purchase price to the 3rd respondent who was to remit the same to the 1st and 2nd respondents. The 1st and 2nd respondents admitted in their plaint that they were aware that the appellant deposited the purchase price and that the appellant tendered evidence showing that he deposited the money with the 3rd respondent. There was no evidence by the 3rd respondent to show that they had received instructions from the appellant.

Analysis and determination 9. As a first appellate court, this court’s role is to subject the whole of the evidence to a fresh and exhaustive scrutiny and make its own conclusions about it, bearing in mind that it did not have the opportunity to see and hear the witnesses first-hand. This duty was well stated in Selle & Another v Associated Motor Boat Co. Ltd. & Others (1968) EA 123 in the following terms:“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High 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. 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 based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).

10. Emmanuel Situma Sikanga (Pw1) testified that he sold to the appellant 6 acres of land for Kshs 360,000/- and was paid Kshs 195,000/-. He was later paid Kshs. 7,000/- but he is yet to receive the balance of Kshs 158,000/-. He testified that he is yet to receive money from the 3rd defendant. On cross-examination, he testified that on 22/2/2003 he was given money by the appellant in the presence of the 3rd respondent. He could not tell what the Kshs 53,000/- paid by the appellant to the 3rd defendant was for and he neither knew what the Kshs 249,000/- was for.

11. Kingsley Mutali Sekapchanga (Dw1) testified that he entered into an agreement with the 1st and 2nd respondents for the purchase of 6 acres of land and upon execution Kshs 195,000/- was paid. He deposited money to the 3rd respondent as part payment, on 17/2/2003. The 3rd respondent was acting for the 1st and 2nd respondents and that the title of the land was being held as surety in court. Dw1 later made two deposits of Kshs 25,400/- on 27/2/2003 and later on Kshs 298,000/-. Kshs 90,000/- was paid to Mary Naliaka, a sister to the 1st and 2nd respondent. Dw1 testified that he deposited money to the 3rd respondent’s account which monies were to be remitted to the 2nd respondent. On cross-examination, he testified that he had a client-advocate relationship with the 3rd respondent. He maintained that he paid professional fees but did not have proof of payment.

12. I have considered the submissions and the evidence on record. It is not in dispute that the 1st and 2nd respondents were paid Kshs 195,000/- upon execution of the contract and further Kshs 7,000/- on 2/1/2005. The only dispute relates to the payment of the balance of the purchase price being Kshs. 158,000/-.

13. There was no evidence that the balance of Kshs 158,000/- was paid to the 1st and 2nd respondents. The appellant testified that he deposited money with the 3rd respondent for onward transmission of the same to the 1st and 2nd respondents.

14. The 3rd respondent acted for the appellant, 1st and 2nd respondent. Pw1 testified that the title to the land was in the custody of the court and was released after the appellant and the 3rd respondent posted cash bail. Dexh1 revealed that the appellant paid Kshs 53,000/- through the 3rd respondent on 17/2/2003. Dw1 also testified that there existed a client-advocate relationship with the 3rd respondent. At the time of execution of the sale agreement, the appellant had paid Kshs 195,000/- leaving a balance of Kshs 165,000/-.

15. Dw1 produced Dexh 1, 2 and 3 all showing that he deposited money with the 3rd respondent. Immediately after the parties signed the agreement, the appellant deposited Kshs 25,400 on 27/2/2003 into the 3rd respondent’s account and later on 5/03/2003, he further deposited Kshs 248,000/-. He explained that Kshs 25,000/- was for the survey costs. This therefore left the 3rd respondent with a balance of Kshs 248,000/- and according to Dw1, the 3rd respondent was to remit the balance of the purchase price to the 1st and 2nd respondents.

16. The 3rd respondent filed its statement of defence but did not present any evidence to challenge the evidence of the appellant. The evidence of the appellant therefore remained uncontroverted. After a comprehensive examination of the evidence, I find that the 3rd respondent (third party) failed to transfer the funds that the appellant had deposited into its account to the 1st and 2nd respondent. In my view, the sole responsibility for settling the remaining balance of the purchase price, amounting to Kshs 158,000/-, should rest squarely on the shoulders of the 3rd respondent who was the advocate for the vendors. In any case, the 3rd Respondent (Third Party) confirmed in its statement of defence and evidence that it had acted for the vendors in the transaction. As the appellant had successfully enjoined the law firm as a third party and having proved that he duly deposited the sums in question with the third party, it was thus erroneous for the learned trial magistrate to hold that the sums had been paid in respect of legal fees. Consequently, I find the decision arrived at was erroneous and must be interfered with.

17. In the result, I find merit in the appeal. The same is allowed. The judgement of the trial court dated 25/4/2016 is hereby set aside and in its place, judgment is entered for 1st and 2nd respondents against the 3rd respondent (third party) in the sum of Kshs 158,000/-at 14%P.a from the date of default. The appellant shall have costs of the appeal as against the 3rd respondent while the 1st and 2nd Respondents will have costs in the lower court to be borne by the 3rd Respondent (Third Party).Orders accordingly

DATED AND DELIVERED AT BUNGOMA THIS 17TH DAY OF NOVEMBER, 2023. D.KEMEIJUDGEIn the presence of :Sabwan for AppellantOnyando for 1st and 2nd RespondentsNo appearance for 3rd Respondent (Third Party)Kizito Court Assistant