[2023] KEHC 24966 (KLR)

Simiyu v Wanyova & another (Civil Appeal 10 of 2023) [2023] KEHC 24966 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24966 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 10 of 2023

SC Chirchir, J

November 7, 2023

Between

Japheter Osanya Simiyu

Appellant

and

Salome Napema Wanyova

1st Respondent

Shem Tisa

2nd Respondent

(Appeal arising from the judgment of the Hon. Carolyne Cheruiyot Adjudicator/ Resident Magistrate in the commercial claim E. 204 of 2022)

Judgment

1. Through the statement of claim filed on November 21, 2022 the respondents sued the appellant for a sum of ksh. 64,861 being the contract sum on account “of a contract to money had and received on or about August 28, 2015”.

2. The trial court delivered Judgment on January 20, 2023 in favour of the respondents.

3. Aggrieved by the Judgment , the appellant filed the present appeal and set out the following grounds:a).The learned trial magistrate erred in law and in fact by failing to appreciate the totally of the evidence in favour of the respondents and the exhibits produced therein thus arriving at a totally erroneous conclusionb).The learned trial magistrate erred in law and in fact by deciding that the respondents filed their claims on behalf of the self-help group Internet Farmers Groupc).The learned trial magistrate erred in law and in fact by wholesomely and solely relying on jail sentence against in the appellant in Butali Criminal Case number 248 of 2018 which decision is appealed against in kakamega HCCRA NoE103of 2022d).The learned trial magistrate erred in law and in fact by failing to appreciate the evidence on record that the respondents had no authority from the group to file the claim against the appellante).The learned trial magistrate erred in law and in fact by finding that the respondent proved their case on the balance of probability and yet they failed to produce even a single documentary evidence to support their claim.f).The learned trial magistrate erred in law and in fact failing to appreciate the evidence on record that the appellant did not steal any money from the respondents or the self-help groupg).The learned trial magistrate erred in law and in fact by failing to. appreciate the appellant’s evidence on record that Kshs. 12,000/= is in the group account at the cooperative bank and that he has Kshs. 14285 in his account totalling to Kshs. 26,286/=h).The learned trial magistrate erred in law and in fact by failing to appreciate the evidence on record that the respondent’s claim of Kshs. 64,681/= was never supported by documentary evidence from the Group’s account record.i).The learner trial magistrate erred in law and in fact by failing to appreciate the evidence on record that the respondents failed to call any member of the group as witness to support their claimj).The learned trial magistrate erred in law and in fact by failing to appreciate the evidence on record by DW1, the chairman of the group who clearly testified that the respondent did not steal any money.

Appellant’s Submissions 4. It is the appellant submission that save for a copy of judgment in Butali criminal case No.248 of 2018 , there was no evidence led to support the respondent’s claim as there was no single witness called to testify on behalf of the respondents.

5. That on the other hand the appellant’s witnesses testified, giving cogent and uncontroverted evidence on how the group funds were received and spent on their behalf.

6. The Appellant further argues that the trial court did not set out the basis for the claim of ksh.53,681, considering that the respondents’ claim was for ksh.64,881.

7. It is further submitted that the trial court ignored the evidence of the Appellant to the effect that the Appellant held money in his capacity as the Treasurer of the group, had the duty to keep the funds and that the 2nd respondent had in fact ceased to be the member of the group.

8. The appellant further submits that the trial court erred in relying entirely on the judgment in criminal case, without bothering to consider the evidence before it.

9. The appellant further contends that , the judgment in the said criminal case has since been overturned by the high court in Kakamega Criminal Appeal No.E013 of 2022.

10. It is submitted that there was no evidence that the respondents filed the claim on behalf of the Group

Respondents’ Submissions 11. On the question of the locus standi, it is the respondents’ submission that they rightly brought this claim on behalf of the other group members.. They have relied on the decision of the court in Voi Jua Kali Association v Sange & others (2002) 2KLR 474 in this regard.

12. On the 2nd ground whether the trial court erred in finding the appellant liable, the respondent claimed that the appellant was the treasurer of the Internet farmers group and was the one who held the funds in that capacity. It is further submitted that the appellant was tried and found guilty of the charge of theft in Butali criminal case 248 of 2018

The Evidence. 13. CW1, was the 1st claimant. She testified that their organization was a member group of 10 people. They began a merry go round where, and the respondent was the treasurer of the group. The respondent’s duties included depositing the money in the Bank Account. She further stated that when they were about to embark on the project the appellant failed to avail the money. He kept on evading them until the group reported the matter to the police. The Appellant was arrested, charged, tried and found guilty of theft.

14. On cross- examination She told the court that she had no document to show that she had demanded for the fund. She also had no evidence to show that she had authority to sue on behalf of the group.

15. CW2 was the 2nd respondent herein. She stated that she was the secretary of the group, that the appellant refused to give them their savings. She adopted the documents produced.

16. On cross- examination she insisted that they filed the claim on behalf of the group , but she had no proof of Authority from the group. She stated that their constitution authorizes them to bring a suit.

17. On re- examination, she told the court that there was an oral agreement that the two file the case on behalf of the others.

18. RW1, was the Appellant. He adopted his written statement as part of his evidence -in- chief. He told the court that in the year 2014, they formed a group called Internet farmers C group. The purpose of the group was to uplift the members welfare. He was the group’s Treasurer. They opened an account at cooperative bank. He produced his list of documents which were marked as Exb 1-5.

19. He further told the court that the 2nd claimant had been removed as a member of the group through a letter signed by some of the officials. He denied taking the money, stating that this was an on- going project

20. He admitted that he had been charged and found guilty of theft but he has since Appealed against the decision.

21. RW2, was the chairman of the group. He adopted his written statement dated January 11, 2023. He told the court that the 1st claimant was the acting secretary while the 2nd claimant was the vice chairman who had since been expelled from the group through dated letter dated 15/01/2015. The letter was signed by the chairman. The letter was produced as the respondent’s exhibit No. 4

22. On cross- examination, he told the court that the group was operational, and as the chairman, he was not aware about the respondents’ complaints

23. On re-examination, he stated that despite being the chairman of the group he was not aware of any meeting held to authorize the filing of the present suit.

24. In a judgment delivered on January 20, 2023, the trial court delivered judgment, the highlights of which was as follows:a).That based on the provisions of order 1 rule 8(1) of the Civil Procedure Rules the claimants had the capacity to bring the claim on behalf of the others.b).That there was a valid agreement to refund the money to the claimants, and that there was a breach by the appellant of that agreement.c).That the claim was for ksh. 64,681 and having been established that the Bank balance was ksh. 11,352. 50 the respondent was liable to refund the difference.d).She further stated that she was not satisfied on how the alleged expenses were incurred as proper financial records were availed. She then awarded ksh. 53, 681 being the alleged difference.

Determination 25. This is a first appeal and this court is duty – bound to consider the evidence afresh, re- evaluate it and arrive at its own conclusion.( see Gitobu Imanyara & 2 others v A.G (2016) eKLR).

26. I have considered the evidence, rival submissions and the judgment of the trial court. The following issue present themselves to me for determination:a.What was the cause of action in this claimb.Whether the respondents had the locus standic.Whether the claim was proved.What was the cause of Action?

27. I wish to first address myself to what I consider to be a preliminary issue in this suit, namely the cause of action. What is the cause of action? A claim’s cause of action is vital in establishing whether the court has jurisdiction to entertain a suit, the limitation period and the remedies applicable. In its judgment, the trial court concluded that this was a case of breach of contract, but was it ?

28. The claimants statement of claim went as follows “ A contract relating to money had and received on or about the August 28, 2015 and April 2016” . The next pertinent question is, was there a contract between the parties. There was no written contract produced, but contractual arrangements can be implied. Thus, the fact that there was no written contract is a not an issue.

29. The three key elements of a contract are an offer, acceptance and consideration. ( see William M. Muthami v Bnak of Baroda ( 2014) e KLR ). The court went on to state that it is only when these three elements are present that the innocent party can sue the other for breach.

30. I have taken note of the trial magistrate’s judgment, where she stated that there was a valid agreement for refund of money on November 19, 2018. I have perused the record and I did not find such an agreement. The testimonies of the claimant’s did not suggest the existence of a contract between the appellant and the respondent. Admittedly, the claimants testified that the appellant promised to refund the money. This promise appears in the criminal proceedings, not these proceedings. However even if one was to take the evidence in the criminal trial as evidence to the effect that the appellant agreed to refund the money, what was the consideration to make such a promise a contract? The essence of contract is that there must be an element of exchange. Thus, if the appellant promised to refund the money as alleged, what was he getting in return in order to complete the cycle?

31. In short, there was no valid contract between the parties. The evidence led did not also imply the existence of any contract. To that extent the findings of the lower court was erroneous.

32. On the other hand, from the judgment in Butali Criminal case No. 248 of 2018, which was produced in evidence and the testimonies of the witnesses this was a case of theft of funds belonging to a group calling itself Internet farmers Group, by an officer, the appellant, who was entrusted to, in his capacity as the treasurer of the group. Theft, as defined in section 268 of the Penal Code has two components, taking or converting for one own’s use someone’s property.

33. Under civil law the act of wrongfully taking another person’s property constitutes a tort of conversion.

34. The Black Law Dictionary defines conversion as “ the wrongful possession or disposition of another’s property as if it were one’s own; an act or series of acts of wilful interference without lawful justification with an item or property in a manner inconsistent with another’s right whereby that other person is deprived of the use and possession of the property; it is an act that interferes with the dominion of the true owner ‘s right and depriving him of the possession of the goods to an extent as to be inconsistent with the rights of the owner”

35. The evidence led both in the criminal trial and these proceedings clearly show that the respondents claim was founded on the tort of conversion as defined above .That being the case , it follows that the claim having been founded on a tortious act , should have been field within 3 years from the time the cause of action arose. (section 4 (2) of the Law of Limitations Act).

36. The cause of action is said to have arisen between August 2015 and April 2016. The claim was filed on November 21, 2022, long after the 3- year limitation period had lapsed. The claim was therefore defective and should not have seen the light of day. This is enough reason to have the claim struck off.

Did the Respondents have the locus standi to bring this suit? 37. Another issue of law is the question of the capacity of the respondent to bring this claim. The claimants told the court that they were bringing the suit n behalf of 10 others. Order 1 rule 8(1) of the Civil Procedure Rules provides that:“Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them”.

38. In the case of Voi Jua Kali Association( supra) where the court expressed itself as follows:“It cannot be in dispute that a society as such cannot sue and cannot be sued in its own name. It can only sue through its officials and can only be sued through its officials…In Kenya, unlike in Uganda, only the defendant needs leave to defend on behalf of the other would-be-defendants but as to the plaintiff, all he needs is to have a notice issued to all other interested parties of his intention to sue on their behalf to enable those of them who want to, comply with order 1 rule 8(3) i.e. apply to court to be made a party in such a suit.”

39. Although the Appellant insisted that the 2nd respondent had ceased to be an official of the organisation, there was ample evidence that the 1st respondent was still the secretary of the group at the time of trial. The 1st respondent therefore had the capacity to bring the suit on behalf of the organisation.

Did the Respondents prove their case? 40. Finally, is the question of the substance. Section 107 of the Evidence Act, states as follows: -(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.”

41. That is what is generally referred to as the legal burden of proof and the standard, in civil cases, is on a balance of probabilities. The claim herein is for a sum of Ksh. 64,861, but the claimants did not lay a basis of this claim. There was no attempt to demonstrate how did the money that allegedly added up to to ksh. 64,861 was given to the Appellant; if and how much was used and what was the balance.

42. If anything, the attempts to provide the necessary details came from the defence. The respondent gave the breakdown of the money received, where and how much were used, and the balance. His tabulation demonstrated that the balance he held was far much less than what the Respondent was claiming. The trial court’s finding was that it was not satisfied with the explanation given by the respondent; that more financial records ought to have been availed to show how the money was spent. The argument however overlooks the fact that the claimant had not established their claim in the first place. For the court to show dissatisfaction with the defence case, it first ought to have been satisfied on how the figure of ksh. 64,861 was arrived at. The duty of demonstrating that fell on the Respondents. They did not. The Respondents simply failed to prove their case.

43. It is evident that the Trial court relied on the outcome of the criminal proceedings in Butali criminal case No. 248 of 2018 in arriving at its findings. This quite evident from the following extract of the Judgement: “ A criminal case was filed in Butali SPMCCRM No. 248 of 2018 where the respondent was charged with stealing contrary to section 268 as read with 275 of the Penal Code and the respondent was convicted of the offence and sentenced to 2 years imprisonment on 8/02/2022. He filed an Appeal which is pending determination .The proceedings and judgment therein was produced as evidence by the claimant which evidence was not rebutted by the respondent and the court therefore finds that there was valid agreement of refund of……..”

44. Section 47A of the Evidence Act reads as follows: -“47A. A final judgement of a competent court in any Criminal Proceedings which declares any person to be guilty of a criminal offence shall after the expiry of the time limited for an appeal against such judgement or after the date of the decision of any appeal therein whichever is the latest be taken as conclusive evidence that the person so convicted was guilty of that offence as charged”.

45. However section 47A of the Evidence Act will only apply upon conclusion of an appeal and if, as a result of the appeal the conviction by the lower court is upheld .( see You Guo Jiang Sietco v A.A Kawir (1996) e KLR ). From the judgment it is evident that the trial court was aware of the pending appeal and therefore should not have relied on the said proceedings. If the court had interrogated the evidence before it ,without the said judgment, it is possible that it would not have arrived at the decision it did .

46. Thus on the substance of the claim, the suit was also not proved.

47. In conclusion, as earlier sated , the claim herein was founded on the tort of conversion. The suit was filed outside the limitation period and no leave was sought to extend time. On this ground alone, the suit ought to have been struck off

48. In the circumstances, the lower court’s judgment is hereby set aside and the respondent’s claim is hereby struck off with costs.

49. The appellant shall have the costs of this appeal.

50. I did not find any evidence of the deposit of the decretal sum in court, but if such sum was deposited, the same to be released to the appellant’s advocate forthwith.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 7TH DAY OF NOVEMBER, 2023. S. CHIRCHIRJUDGE