[2007] KEHC 1038 (KLR)
The court found that the appellant expressly admitted the debt in writing and agreed to repay the money, which led to him not being prosecuted. The court noted that there was no evidence presented to support the appellant's claims of torture or coercion, nor any complaint made to authorities regarding such...
Source-derived case information.
- Citation
- [2007] KEHC 1038 (KLR)
- Parties
- Appellant: Willie Mwaniki Njue; Respondent: Stephen Njiru Mbogo
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 64 of 2002
- Procedural Posture
- Civil Appeal / Judgment on Appeal
- Outcome
- appeal dismissed
- Legal Topics
- Striking Out Defence, Admission of Debt, Employee Liability, Summary Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Willie Mwaniki Njue
Appellant
Stephen Njiru Mbogo
Respondent
Procedural Posture
Civil Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the trial magistrate erred in striking out the appellant's defence and entering judgment for the respondent.
- 2 Whether the appellant's allegations of coercion and torture in admitting the debt were substantiated.
- 3 Whether the respondent lawfully obtained the title deed as security for the debt.
Ratio Decidendi
The court found that the appellant expressly admitted the debt in writing and agreed to repay the money, which led to him not being prosecuted. The court noted that there was no evidence presented to support the appellant's claims of torture or coercion, nor any complaint made to authorities regarding such treatment. The trial magistrate's finding that the defence was frivolous and vexatious was upheld, as the appellant's allegations were unsubstantiated and appeared calculated to delay the proceedings. Consequently, the appeal lacked merit and was dismissed with costs to the respondent.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 64 of 2002
WILLIE MWANIKI NJUE…………………………………………..APPELLANT
VERSUS
STEPHEN NJIRU MBOGO…………………………….…..…..RESPONDENT
JUDGMENT ON APPEAL
The appellant was a defendant in the RMCC No. 24 of 2002. By application dated 14/11/2002 by the defendant the Respondent obtained orders from the court of the Resident Magistrate orders striking out the appellant/Defendant defence and proceeded to enter judgment for the plaintiff/Respondent as prayed in the plaint in the sum of Shs.112,500/= plus interest and costs.
The Respondent had pleaded that the Appellant was his employee as storekeeper and on various dates the defendant caused loss of 225 bags of cement valued at Shs.112,500/=. The Appellant admitted the claim in writing and made an offer to pay within a month. The Respondent was given security Kagaari/Nthagaiya/T374. However the Appellant failed to pay and was sued by the Respondent.
In his defence the Appellant denied the Respondent’s claim. He alleged that on several occasions he was in police cells at the behest of Respondent where he was severely beaten and tortured by police officers to admit the claim and was forced to sign a document without knowing what was written therein. Further he said that the Respondent/Plaintiff obtained illegally a Title Deed Kagaari/Nthagaiya/T374 without defendant’s consent. At the hearing of the application the Appellant submitted that the note dated 14/6/2002 was written by him before he was arrested and that the wife gave out Title Deed as security and that the agreement was prepared by advocate and was brought to him at police station to sign. It is to be noted that what the Appellant had done amounted to a criminal offence as well as civil claim.
I have perused the ruling of Trial Magistrate, the pleadings, the applications and affidavits sworn by the parties. There was express admission by Appellant/defendant of the debt and he agreed to reply the money as a result of which he was not prosecuted. His wife was anxious that her husband should be released hence her part. There is no evidence of torture or beating was exhibited or a complaint to any authority that he was tortured by the police. Therefore I find his allegation not proved. I agree with the finding of the Trial Magistrate that the Appellant defence was frivolous and vexatious calculated to delay the trial. I do not find any merit on this appeal the same is dismissed with costs to the Respondent.
Orders accordingly.
Dated this 9th July, 2007.
9/7/2007
Khaminwa – Judge
Njue – Clerk
Respondent present in person.
Read in open court.
J. N. KHAMINWA
JUDGE