[2017] KEHC 9623 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL DIVISION

HIGH COURT CIVIL APPEAL NO. 604 OF 2007

S.G.GACHANJA...................................................................APPELLANT

VERSUS

ELISHAPHAN KAMUYU KARANJA.......................1ST RESPONDENT

CITY COUNCIL OF NAIROBI...................................2ND RESPONDENT

(Being an appeal from the judgment of the Senior Resident Magistrate Hon. A.N. Ongeri (Mrs.) delivered on 19th June, 2007 at Milimani Commercial Court in CMCC No.5771 of 2002)

JUDGMENT

1. Vide a plaint dated 1st August, 2002, the 1st Respondent, Elishaphan Kamuyu Karanja who was the Plaintiff in the lower court filed suit claiming the sum of ksh.55,000/= from the 2nd Respondent (City Council of Nairobi 1st Defendant) and the Appellant herein, S. G. Gachanja (2nd Defendant). The Plaintiff’s claim was that the 1st Defendant through it’s servants or agents together with the 2nd Defendant without any justification demolished his Kiosk and houses erected on the Plaintiff’s Plot No.311/Dandara area 3.

2. The 1st Defendant denied the claim through the statement of defence dated 21st August, 2002. In the alternative it was averred that if any demolition was carried out, the 1st Defendant did not give any authority or instruction for the same.

3. The 2nd Defendant filed the statement of defence dated 30th August, 2002 and denied the Plaintiff’s claim. In the alternative, the 2nd Defendant contented that if the Plaintiff suffered any loss, the same was self-inflicted as the Kiosk was illegally constructed.

4. In his evidence, the Plaintiff stated that the 2nd Defendant was his neighbour. He stated that the Kiosk was licensed by the council (1st Defendant). The plaintiff who did not witness the demolition stated that he made inquiries from the 2nd Defendant (Appellant) who informed him that he had purchased the plot and the council had demolished the Kiosk.

5. The 1st Defendant (council) did not call any witnesses. The 2nd Defendant (Appellant) stated that the Plaintiff had put up the Kiosk at a parking and it blocked the 2nd Defendant’s window. That he reported the matter to the City council. That the council officials visited the scene and said they would see what to do. The 2nd Defendant further stated that the Kiosk was illegally built and that he learnt that the same was demolished by the city council and the materials carried away.

6. The trial magistrate entered judgment for the Plaintiff against the 2nd Defendant. The case against the 1st Defendant (council) was dismissed. The 2nd Defendant who is the Appellant herein was dissatisfied with the said judgment and appealed to this court on the following grounds:

1. The learned magistrate erred in law and in fact in relying on hearsay evidence as to who demolished the kiosk subject of the suit.

2. The learned magistrate erred in law by failing to make a finding on the issue of ownership of the ground/space upon which the aforesaid kiosk was erected and on whether the complaint by the appellant to the first defendant (in the lower court) was justified or not.

3. The learned magistrate erred in both law and fact in finding that the appellant was liable to the respondent purely on the basis that he reported to authorities who then caused a demolition to be done.

4. The learned magistrate erred in law and in fact in holding that the appellant was liable for demolition but which was unsupported and which was contrary to the weight of evidence adduced in court.

5. The learned magistrate erred in law and in fact in making inconsistent findings on who demolished the kiosk as between the defendants.

7. The parties agreed to canvass the Appeal by way of written submissions. However the 1st Respondent did not file any. I have considered the submissions filed.

8. This being a first appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. See for example the case of Selle v Associated motor Boat Co. & others [1968] E.A. 123 where it was stated as follows:-

“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 demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.

9. Although the Plaintiff gave evidence that his kiosk was demolished and he produced receipts for the purchase of the building materials, he was not at the scene during the demolition. The Plaintiff stated that his eye witness had since passed away. Thus there was no direct evidence to link the 2nd Defendant to the demolition of the kiosk. The Plaintiff’s evidence in respect of who demolished the kiosk remains mere hearsay. The fact that the 2nd Defendant complained to the council (1st Defendant) about the kiosk cannot be said to be proof that either the 1st Defendant or 2nd Defendant were the ones who demolished the kiosk. He who alleges must prove. The Plaintiff failed to prove his case on a balance of probabilities.

10. With the foregoing, I find merit in the appeal and allow the same. Consequently the judgment of the lower court is hereby set aside. Taking into account the circumstances of this case, each party to bear own costs both in the lower court and in this appeal.

Date, signed and delivered at Nairobi this 15th day of Nov., 2017

B. THURANIRA JADEN

JUDGE