[2017] KEHC 919 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CIVIL APPEAL NO.39 OF 2016

BETWEEN

TABU OPIYO............................................................APPELLANT

AND

JANE AKINYI OJWANG......................................RESPONDENT

CONSOLIDATED WITH HCCA NO.41 OF 2016

JANE AKINYI OJWANG.........................................APPELLANT

AND

TABU OPIYO........................................................RESPONDENT

(Being an appeal from the judgment of PM’s Court Ndhiwa Civil Case No.42 of 2015 - Hon. B.R. Kipyegon, RM dated 15/09/2016)

JUDGMENT

1. The respondent (TABU OPIYO) had been sued by JANE AKINYI OJWANG (appellant) who sought a liquidated sum of Kshs.60,000/- plus costs of the suit and interest. The claim arose from events of 23rd May 2015 when the respondent allegedly encroached into the appellant’s parcel of land which she had leased with one PERCILA ACHIEN’G YWAYA, and destroyed the sugarcane plantation covering approximately 1 acre.

2. An agricultural assessment was done and report dated 26/05/2015 gave the value of the damage at Kshs.60,000/=. She made several requests to the appellant for compensation but he ignored and instead cut the sugar cane for purposes of making jaggery.

3. The respondent denied committing any acts of encroachment onto the appellant’s land or destroying the sugarcane plantation belonging to respondent. It was his contention that the land actually belonged to the appellant’s husband who had leased it to JOHN OJWANG OBUYA who also owned the sugarcane planted thereon.

He insisted that it was the appellant’s husband who in her presence and the chief of NORTH KABUOCH, by the name SAMWEL SINGH AWINO, gave the said sugarcane to NEREA AKINYI OMBAYE to repay a debt of Kshs.17,500/= which he owed her and the said sugarcane was only taken to the appellant’s machine for grinding.

4. At the hearing, the appellant told the trial court that on 23/05/2015, she got information from a friend at KABUOCH that the respondent had cut her sugarcane plantation and was using the cane to make a sell jaggery. She had no such agreement with the respondent whatsoever, and when she proceeded to the land on 25/05/2015, she found the appellant cutting the cane. He claimed to have a letter authorizing his actions, so she reported to NDHIWA police station and also got an Agricultural Officer and the village elders to see the destruction.

5. She explained that she had leased the land from PRISCILLA at Kshs.3500/= and used Kshs.1500/= to prepare the land. She then ploughed it three times at Kshs.2000/=, did terracing at Kshs.1500/=, bought seeds at Kshs.5500/= and paid Kshs.4200/= for labour. She also paid Kshs.4200/= which was done thrice. On cross examination she stated the cane was growing on 1 acre portion of land and that she personally witnessed the appellant cutting the cane on 25/05/2015 and noted that a half of the farm had already been cut.

6. She inquired from PRISCILLA (the land owner) whether she had cut the other portion but got a negative response. She also denied suggestions that her husband leased the land to NEREAH AKINYI.

7. PW2 JOHN OJWANG OBUYA (the appellant’s husband) told the trial court that on 23/5/15 while on his own frolics within Kabuoch, he passed by PW1’s land and saw the appellant cutting the cane crop. When he asked why he was doing so, the respondent said he had a letter giving him such authority. He informed his wife PW1, what he had witnessed.

8. The officer from Ministry of Agriculture in NDHIWA sub-county by name CASMIEL AKUMO (PW3) confirmed that he received a request to do a crop assessment on a farm which had sugar cane crop. The complaint was by the appellant against the appellant and he assessed damage at Kshs.60,000/= saying by the time of the exercise, the crop had already been harvested and turned to brown sugar. He explained that his findings took into account the expected production based on acreage and cost of cane tonnage at SIL.

9. The respondent, a jaggery maker testified that on 19/05/2015 one NEREAH AKINYI approached him and requested him to process brown sugar using his plant machine. He declined because the cane did not belong to her, so he sent her to go to the chief to get permission. According to him PW1’s husband and NEREAH were said to have exchanged the cane on the basis of an outstanding debt.

10. The chief gave NEREAH a go-ahead, so the appellant begun crushing the cane, and that’s how PW2 found him in the process and questioned his actions and he gave his explanation. It was his contention that there was no wrong doing on his part.

11. PRISCILLAH ACHIENG(DW2) confirmed she had leased land to JOHN OJWANG and JANE AKINYIat Kshs.3500/=. One day she was summoned by the area chief who told her JOHN had paid NEREAH for the cane in issue, and that NEREAH was now the owner of the cane.

12. WILSON OTIENO ODANGA(the assistant chief)only recalled that JANE AKINYI and JANE OJWANGonce went to him over a land lease agreement but they never completed it due to lack of their identification documents. The women never went back to him.

13. NEREAH AKINYI(DW4) claimed that JOHN OJWANGleased to her his land at a cost of Kshs.8500/= on 1st August 2012. Later in the year 2013 when she went to the parcel, she realized JOHN and JANE had moved away and someone else was using the land. She sought JOHN out to get back the lease and he promised to restore it, and that he would give her some cane. She reported the matter to the chief and John paid her from the cane. That is how Priscillah was called and informed that the cane belonged to someone else.

14. She thereafter begun to harvest the cane and engaged the respondent to crush the cane. On cross examination she insisted that the cane belonged to PW2 and not PW1.

15. The trial magistrate in his judgment pointed out that the respondent had acknowledged that the harvested cane was not his. He also found that the respondent successfully associated his action to NEREAH who had purportedly purchased the cane from PW2.

16. Apparently the matter had earlier on been heard by the trial magistrate entered judgment on 15/09/16 led dismissing the claim on grounds that the respondent (Jane) never called the woman who leased the land to her as a witness, and that NEREAH infact admitted that she was the one who harvested the cane and merely assigned TABU OPIYO to process it.

17. He held that Tabu and his witnesses’ testimonies were unshaken in cross examination and that although many parties were involved in the informal case transacts, the claimants deliberately narrowed down their target to the cane crush who was a mere third party in the circumstances.

The trial magistrate gripped thus:-

“The plaintiff maliciously pursued the defendant harm in disregard of Nereah who harvested and delivered the cane for crushing while and/or carefully concealing the obvious possibility that her own husband offered the cane to satisfy his debt.”

He dismissed the claim as having no merit but made no order on costs.

18. These findings were challenged on grounds that the decision was not supported by the evidence adduced. Further the trial magistrate based his decision on extraneous matters particularly a purported agreement between NEREAH and JOHN which was not produced in court.

19. The trial magistrate was faulted as applying wrong principles governing proof of special damages. The respondent challenged the omission on costs saying that the trial magistrate in writing the judgment failed to acknowledge that:-

a) In accordance with Section 25 of the Civil Procedure Act, a decree follows the judgment.

b) The trial magistrate failed to comply with the provisions of Order 21 Rule 7 (2) Civil Procedure Rules by not stating specifically by whom or out of what property or in what proportion the costs incurred in the suit are to be paid.

c) The appellant prays that the court makes appropriate orders for costs to be paid to the appellant following the event of his success in defence of the original suit. He also prays for costs of this appeal plus interest.

20. The appeal was canvassed by way of written submissions. Mr. G.S. Okoth on behalf of the appellant submitted that in dismissing the plaintiff’s suit there was no order made for costs and the trial magistrate simply stated that the case was dismissed for want of merit. It was his contention that such a judgment violated the provisions of Order 21 Rule 7 (2)of theCivil Procedure Rules, and silence on the issue of costs showed that the judgment was not conclusive.

21. In response to the appeal by Jane, it is submitted that the evidence clearly demonstrated that the respondent sued the wrong party who was only hired to crush the cane. Further that the trial magistrate did not rely or introduce extrinsic matters such as the agreement before the chief, and that the same did not form part of the reasons for the decision.

22. It is also submitted that PW1and PW2 gave contradicting accounts because whereas PW1 claimed a friend called to inform her that the appellant had led other people in damaging her cane, and she subsequently sent her husband to confirm.

23. On the other hand PW2 said he was at home carrying on his chores when PW1 went to complain that the appellant had destroyed her cane. He then rushed to go and see, then proceeded to the appellant’s home to ask him why he had harvested the cane.

24. This is in contrast to the versions both PW1 and PW2 gave on cross examination on 14/06/15. Whereas PW1 denied to have gone to the scene on 25/05/2015 and seen the appellant cutting the cane, PW2 said he went to the scene on 23/05/2015 and saw the appellant cutting the cane crop.

25. It is on account of this that counsel submits that the allegations against the appellant were obviously fabricated.

26. The respondent’s counsel S.M. Onyango submitted that the judgment and decree were valid despite the omission of costs being awarded because a decree need not necessarily specifically the manner of such payment. He argued that costs are absolutely at the court’s discretion. He urged the court to be guided by the case of MBOGO and ANOTHER –VS- SHAH (1968) EA 93 which held that:-

“…. This court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters which it should not have acted on because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

27. The appellant’s counsel submitted that in this instance the court exercised its discretion regarding the issue on costs and cannot be faulted. He however admits that the trial court ought to have set out grounds upon which it exercised its discretion – which if the court finds to have been improper then the judgment ought to be referred back to the trial court with directions to give.

28. As regards the 2nd appeal by JANE, it is argued that the evidence presented by the appellant and her witnesses was unchallenged and had no contradictions or discrepancies. He urged this court to find that if the trial magistrate had evaluated and analyzed the evidence properly, he would have arrived at a different conclusion.

29. There was no dispute that JANE AKINYI OJWANG had leased land from PRISCILLA ACHIENGand she planted sugar cane which had grown to full maturity. There was also no dispute that TABU OPIYOwho has a cane crushing machine processed cane from that very plantation. The issue which the trial court was called upon to consider was how TABU got access to the cane. The appellant’s pleadings were that the respondent encroached onto her plantation on 23/05/2015, and her evidence was that she proceeded to the scene on 25/05/2015 and found the appellant harvesting the cane. Infact her evidence in court was:-

“On 25/5/15, I went to the farm and I found the defendant cutting my cane.”

30. However her husband PW2, to whom she reported her disturbing sightings said he proceeded to the land on 23/05/2015 and saw the respondent cutting the cane crop, then reported what he had seen to PW1. So which version is to be believed? Did they actually see the appellant on the land, or was it that because he was seen collecting the cane on the land, the couple concluded this must have been the one who harvested?

31. That conclusion would have had a basis if there was no explanation as to how he got to access the cane. He called the person who had assigned him the task – one NEREAH, who indeed confirmed she had authorized him to process the cane. It is not so much a question of whether NEREAH had a contract or agreement with JOHN OJWANG– rather it is the fact that NEREAH admitted she had authorized the respondent to collect the cane and crush it.

32. It is also instructive that out of abundance of caution the respondent had even sent the said NEREAH away on first request, insisting that she had to get authority from the chief before he could accede to her request as he knew the cane was obviously not hers. The chief also testified and confirmed this state of affairs. It would have made legal sense for the appellant to sue NEREAH who was the initiator of the purported mischief – unless of course she and her husband knew the truth of the matter this elected to sue the “agent” and leave out the “principal”.

33. I find no error in the findings by the trial magistrate and decline to interfere with the decision dismissing JANE’s claim and the appeal must fail and is dismissed with costs to respondent.

34. As regards the issue of costs, I agree that ordinarily costs follow the event. I also agree that the issue regarding costs may be left at the discretion of the court, but as appropriately pointed out by MR. ONYANGO – in such instances where no order for costs is made then reasons ought to be given.

The trial magistrate gave no indication whether he directed that there ought to be no orders on costs or it was an error of omission.

35. Order 27 (1) of the Civil Procedure Rules provides as follows:-

“Subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court shall have full power to determine by whom and out of what property and to what extent such costs are to be paid and give all necessary discretion for purposes of the aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of these powers.”

It further states:-

“Provided that the cost of any action, cause or other matter or issue shall follow the event witness the court or judge shall for good reason otherwise order.”

36. In my view this issue of costs was an omission which ought in the first instance, to have been pursued by way of review. The respondent ought to have moved the court seeking review of its decision on the issue of costs. It is only after such application that it would be ripe for appeal. That did not happen.

37. If the trial magistrate had declared that each party should bear its own costs or that no costs were awarded then nothing would have been easier to say so. The failure to state why the issue of costs was not alluded to by the trial magistrate leads me to the irresistible inference that it was not an exercise of discretion but an error of omission. In this case, costs follow the event and ought to have been awarded to the respondent, which I hereby do.

Delivered and dated this 13th day of November, 2017 at Homa Bay

H.A. OMONDI

JUDGE