[2022] KEHC 15559 (KLR)

Yusuf v Bahati (Civil Appeal E015 of 2020) [2022] KEHC 15559 (KLR) (15 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15559 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal E015 of 2020

SM Githinji, J

November 15, 2022

Between

Babu Yusuf

Appellant

and

Antony Bahati

Respondent

(Being an Appeal from the Judgement and Decree of the Chief Magistrate’s Court at Malindi delivered by Honourable Dr. Julie Oseko (CM) delivered on the 29th May, 2020 in CMCC No.44 of 2018)

Judgment

1. This Appeal emanates from the Judgment and Decree of Hon. (Dr) Julie Oseko dated 29th May, 2020 in Cmcc No.44 of 2018 wherein she entered judgment for the Plaintiff in the sum of Kshs. 575,000/= plus costs and interests. Discontented with the Judgment, the Appellant preferred an appeal anchored on the following grounds; -i.The learned Chief Magistrate erred in law and in fact in failing to hold that the Plaintiff/Respondent had not specifically proved the case against the 1st Defendant.ii.The learned Chief Magistrate erred in law and in fact in holding that the Plaintiff did pay all the monies to the 2nd Defendant directly as specifically pleaded in the amended plaint.iii.That the learned Chief Magistrate erred in law and in fact by assuming that the 1st Defendant operated two accounts with the 2nd Defendant which matter was not pleaded in the Plaint.iv.The learned Chief Magistrate erred in law and in fact by failing to find that the Plaintiff did not pay Kshs.575, 000 to the 1st Defendant.v.The Learned Chief Magistrate failed to appreciate that there was an interlocutory judgment against the 2nd Defendant which was not challenged and proceeded to hold their brief hence arriving at a wrong judgment.

2. The Respondent herein Anthony Bahati had sued the Appellant Babu Yusuf for a refund of Kshs. 575,000/= and damages for breach of contract.

Evidence at Trial 3. Pw 1 Anthony Bahati adopted his witness statement dated 28th February, 2018 as his evidence and produced as P - exhibit 1-4 a bundle of documents as per the list of documents dated 21st June, 2018. He informed the Court that he gave the Defendant money for payment of a car. That he went to the bank and took over repayment of the loan owed by the Defendant and upon payment, the log would be transferred to him. Further that he took possession of the car. He also told the court that he defaulted payment for one month and he called the manager to give him a payment form but an auctioneer came and took the car. It was his testimony that on 19th January, 2018 the Manager told him to pay arrears of Kshs. 63,000/= to which he paid Kshs. 80,000/= and was informed that he owed the defendant Kshs. 18,000/= which he also paid but the Defendant insisted on a payment of Kshs. 33,000/-.

4. He further informed the Court that the Defendant refused to help him secure the release of the vehicle and asked for an allowance of Kshs. 1,500/= which he paid him. He testified that in total he had paid Kshs. 575,000/-.On cross-examination by Ms. Wamboi; he told the Court that from 18th August, 2017, to the time of testifying the 1st Defendant had taken possession of the car. Further, he had not been informed when he was to pay the loan.

5. Dw - 1 Babu Mohamed Yusuf adopted his written statement dated 13th November, 2018 and produced as D-exhibit 1-5 a bundle of documents as per the list of documents dated 13th November, 2018. He added that he had an agreement with the Plaintiff for the sale of the motor vehicle which was on loan and the Plaintiff agreed to pay the loan on 1st August, 2017 and paid him (the 1st defendant) Kshs. 317,000/=. He told the Court that he took the Plaintiff to the bank and had an agreement that the Plaintiff would pay the loan but the registration would remain in the 1st defendant’s name.He further testified that the Plaintiff defaulted in payment of the loan on 10th September, 2017 and 19th October, 2017. Further, that he issued a cheque for Kshs. 47,000/= which bounced and he was unavailable on phone for some time.

6. It was his testimony that the bank called him on 3rd January, 2018 over the arrears. Further, on 15th January, 2018 auctioneers called him that the Plaintiff had removed the motor vehicle tracking device but he traced it at BP area. He stated that the Plaintiff has not paid him all the money.On cross-examination by Mr Nyongesa, he told the Court that he had received a total of Kshs. 370,000/=. Further that he cannot tell whether the Plaintiff paid money to the bank or not. Further that his loan account was for two vehicles and the Plaintiff’s monthly installment was for Kshs. 30,929/=.The 2nd and 3rd Defendants did not testify nor call any witnesses. Default judgment was entered against the 2nd Defendant.The Appeal was canvassed by wary of written submissions.

Analysis and Determination 7. I have read and considered the grounds on which the Appeal is premised, submissions by the parties and the authorities relied on.This being a first appeal, this Court has a duty to revisit the evidence that was before the trial court, re - evaluate and analyse it and come to its own conclusion. Further the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanour of the witnesses during the trial and therefore can only rely on evidence that is on record. See Selle and AnothervAssociated Motor Boat Co. Ltd & Another [1968] EA 123.

8. The discretion of this Court to interfere with the determination of the trial court also exercising its discretion should be exercised within the confines of the principles set out by Sir Clement De Lestang, VP in MbogovShah 1968 EA 93 where it was held s follows;“I think it is well settled that this Court will not interfere with the exercise of it’s 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 or it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”So, is the appeal merited?

9. From the evidence adduced before the trial court, there was an agreement between the Appellant and the Respondent in respect of the Sale of Motor Vehicle KCD 413A Toyota Axio. The agreement to sell the said motor vehicle is not in dispute. What is contested is it’s full payment.The Respondent testifying at Pw 1 in the trial Court informed the Court that he gave the Appellant money for payment of the car and went to the Bank where he informed the bank manager that he had taken over payment of the loan as was owed to the Appellant. He produced exhibits to show how he had repaid the loan to the bank before defaulting and the car being repossessed by the Bank. On his part the Appellant produced as evidence an agreement dated 9th February, 2018 which stated interalia that the Appellant had sold the motor vehicle to the Respondent and had received Kshs. 43,000/= as final payment and had no further claim in respect of the motor vehicle. It was also further agreed that the Respondent undertook to pay the loan to the bank on 10th of every month and in default the bank would immediately reposses the motor vehicle. It is important to note that this agreement has not been disputed by the Respondent. In the circumstances, it is my finding that by virtue of this agreement, the Appellant had relinquished his rights to the said motor vehicle to the Respondent and conferred his obligations to the Bank upon the Respondent. The actions attendant to the default of repayment of the loan were within the purview of the bank. Furthermore, there was no evidence tendered by the Respondent to show that it was the Appellant who repossessed the motor vehicle. His assertion remains clear that he had no claim whatsoever on the motor vehicle.

10. I find that the trial magistrate misdirected herself by holding that the Appellant was to pay to the Respondent the sum of Kshs.575,000/= which amount the Appellant did not recover. Thus, I am predisposed to interfere with the judgment of the trial court and set the same aside.The upshot is the above is that the appeal succeeds in its entirety and it is hereby ordered that the amount of Kshs. 575,000/- held in the joint interest account together with interests be released to the Appellant forthwith. The Appellant shall have costs of the Appeal. It is so ordered.

JUDGMENT READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 15TH DAY OF NOVEMBER, 2022. ...................................S.M. GITHINJIJUDGEIn the absence of; -Mr Atancha Advocate for the AppellantMr Nyongesa for the Respondent Parties be notified....................................S.M. GITHINJIJUDGE16/11/2022