Douglas Onyango Otoyo v Emily Awori & Appollo Joshua Awori [2015] KEHC 4974 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

HIGH COURT CIVIL APPEAL NO. 7 OF 2014.

DOUGLAS ONYANGO OTOYO…....……………………………APPELLANT

=VERSUS=

EMILY AWORI

APPOLLO JOSHUA AWORI…………………………………RESPONDENTS

(An appeal against  the judgment  in Busia  CMCC. NO. 43 of 2007 by Hon. T. W. Cherere on 5th September, 2013)

J U D G M E N T

1. This appeal was filed by DOUGLAS ONYANGO  OTOYO, hereinafter  referred to as the Appellant. He  has listed  five grounds in the Memorandum  of appeal dated 28th      March, 2014 which are as follows;

‘’ 1.   The trial Magistrate  herein  erred  in law by not ascertaining that the case  in contention was Res-judicata in the circumstance.

2.   `The trial Magistrate erred  in law by entertaining a case which had been previously  decided  upon by her fellow Magistrate on 8th  August, 2008.

3.   The trial Magistrate failed  to interpret that exhibits 5 and 6 of the proceedings  are not mentioned  in the judgment  dated 5th September, 2013.

4.   The trial Magistrate  further erred  in law by not getting  concerned that a land sale agreement  was in place when the Respondents paid Kshs.10,000/= vide  Cheque  No.020703 at Barclays Bank.

5.   The trial Magistrate  did not endeavour to rely on logistical knowledge that the  issue of family  law sustains that a party is supposed to be paid all his dues.’’

The Appellant named EMILY  AWORI and APPOLLO  JOSHUA  AWORI as the 1st and 2nd Respondent and will be referred  as such hereinafter. The  Respondents  were represented  by Mr. Ashioya Advocate  in this appeal. The  court  gave directions on 6th November, 2014  that parties file written submissions . The Appellant  filed his submission dated 4th January, 2015, and  Respondents’ counsel filed his dated 11th February, 2015.

2.         This court  is obligated to look at the evidence adduced  before the trial  court and re-evaluate it afresh and come to its own conclusions.  While  doing so, the  court    should bear  in mind that it did not see or hear  the witnesses at the time they testified [see Selle –vs- Associated Motor  Sport Company Limited 1968 E.A.128].  Before  the court embarks  on that journey, it  is important  to take note that the Appellant  was the Plaintiff  in the Lower court  matter and the Respondents were the Defendants. The Lower court records shows that the Appellant            commenced  the suit through  the plaint dated  27th November, 2007 seeking for     orders that;

‘’   a)    The Defendant  to vacate  all that parcel of land comprising Luchululu/Bukhulungu/577 in alternative satisfy the signed   undertaking.

b)  Costs  of this suit’’

The Appellant main basis of his claim against the Respondents  is at paragraph  5 of  the plaint where he averred  as follows;

‘’  5.    The Plaintiff avers that pursuant to a sale/purchase agreement between Emily Awori the Defendant vide an undertaking dated 19th May, 2006  undertook  to pay all outstanding  purchase price and/or  2nd  Defendant  vacate the impugned parcel of land Luchulululu/Bukhulungu/577’’

The  Respondents  failed to file defence and the Plaintiff was allowed to  prosecute his  claim through formal proof on the 11th July, 2008 when he testified  as PW 1. He  was represented  by Mr. Jumba advocate and the Learned trial Magistrate set 8th  August, 2008 as the date for judgment.

The Learned trial Magistrate Hon, M.W. Njagi Resident Magistrate  , as she then was  delivered  the judgment  on the 8th August, 2008 in favour  of the Appellant in the following terms:

‘’       I therefore enter judgment  for the Plaintiff  against  the defendants  jointly and severally for balance  of the purchase price of Kshs.500,000/= together  with interest thereof to run from 3rd  May, 2006.  The  Plaintiff shall as well have costs of the suit.’’

The Appellant  then commenced execution  proceedings,  but on 14th November, 2008, the Respondents, through  M/S.  Ashioya  & company advocates,  filed a   notice of motion seeking to among others set aside the  judgment that had been entered. The application was  served and when it came up for hearing on 19th November,  2008, Mr. Jumba  and Mr. Ashioya  advocates  represented  the Appellant  and Respondents respectively. The court  notes that the following consent  was recorded on that date;

‘’     By consent between  M/S. Jumba  for the Plaintiff, M/S. Ashioya  for the                                    Defendants, judgment  entered herein and  all consequential  orders  be                                 set aside. The draft  defence upon payment  be deemed  duly filed.                          Thrown away costs of Kshs.4,000/= be paid the Plaintiff.’’

The  Respondents then filed  their defence  and counterclaim  and after several   adjournments  the  hearing commenced  afresh  before Hon. T.W. Cherere,  Chief Magistrate, on 15th  August, 2013. The Appellant testified as PW 1 and called Wandera Wasike as his  witness before closing his case.  The 1st Defendant then testified as DW1 and the defence closed their case. The Learned trial Magistrate      reserved the judgment for 5th September, 2013 when it  was delivered. In the judgment the Plaintiff’s suit was dismissed and judgment entered in favour of the      Defendant in accordance with their Counterclaim in the following terms;

‘’         i)         A permanent   injunction do issue and is hereby  issued to  restrain  the Plaintiff  by himself , his  workers and servants and  whosoever claiming under  him from interfering  in any manner                                      with L.R.NO.          Samia/Luchululu/Bukhulungu/577.

ii)       Costs of this suit and of the counterclaim shall be paid by  Plaintiff to the Defendant.’’

This is the judgment that aggrieved the Appellant and is the subject matter of this appeal.

3.         ANALYSIS OF THE EVIDENCE.

a)     The Appellant testifed that he had sold land parcel Luchululu/Bukhulungu/577 to Sindika on 19th May, 2006 at Kshs.545,000/= .  He  stated that  he was paid Kshs.10,000/=  through a cheque whose copy he produced as exhibit 2.  He also  produced  as exhibit 1  a document on the letter head of  Emily Awori (1st Respondent)  with a reference  of payment  of Erick Awori’s  Land case No. 020 of 2005. The document is not signed by the Respondents herein and the 1st Respondent   denied having entered into a land sale agreement with the Appellant. Her testimony was that the suit  land belonged to her late father who got registered  as proprietor on 9th  April, 1977 and she  produced  a copy of the land  register  as exhibit  to confirm that fact. She explained the payment  of Kshs.10,000/=  to the Appellant saying it was a gift after  she learnt his kitchen had got burnt and that his wife was admitted in hospital.

b)     The evidence  adduced by the Appellant  before the learned trial Magistrate  failed to show that there was  a valid land sale agreement  between  the Appellant  and the Respondents. The evidence  also fails to show that the suit land had ever  been  registered  in the names  of the Appellant from the date of  first registration  on 9th April, 1977. There was therefore  no way the Appellant would have  acquired capacity to enter  into a sale agreement over the land which he did not own and  could not pass title to.

c)      The learned  trial Magistrate  in her judgment  of 5th September, 2013 considered whether exhibit  l was a valid  sale agreement  and found that it was an acknowledgement  note for Kshs.10,000/= paid to the Plaintiff by  one Prisca Koradi on behalf  of the 1st Respondent.  The learned  trial Magistrate found as follows;

‘’     From the foregoing, I find the Plaintiff has not tendered any evidence that  he sold the suit land to either Defendants or the  late Erick Awori.  In any  case as at 2006 when  the Plaintiff  purports to have sold the suit land, it was already registered  in                          the names  of Apollo Joshua Awori.

It is inconceivable  that Apollo Joshua  Awori could have  entered into  a sale agreement with the Plaintiff for the suit land  which  he already owned.’’

This court  do  not find any misdirection on the finding of the learned trial Magistrate  on the facts or law as  she properly analyzed  the evidence  presented and  came to the only logical conclusion that the Appellant never  owned the suit  land and that there was no valid sale agreement on which  he could  have based  his claim against  the Respondents.

The Appellant is the one who had alleged the existence of a land sale agreement and had the duty to tender evidence and failed.  The Learned trial Magistrate was therefore right and in order to dismiss the Appellant’s claim against  the Respondents.

d)     The evidence tendered by the 1st Respondent before the Lower court showed that the suit land was registered in the names of Apollo Awori since 9th April, 1977.  It was therefore in order for the learned trial Magistrate to come to the finding that she did ,  that the Respondents’ counter claim had merit and that they were entitled to the injunction orders.  This court finds no fault on this finding.

e)     That in law, a counsel on record represents the appointing party and has authority  to enter consent. The Appellant cannot therefore turn around and deny the existence  of the consent  to set aside the judgment  that was entered into by the parties counsel to allow  the Respondents defend the suit.  It is after the  setting side of the judgment  dated 8th August, 2008 that the suit  was heard with both parties represented and the judgment   dated 5th September, 2013 delivered.  The Appellant has never challenged the consent  order of 19th November, 2008 todate. This  court finds  that grounds  1 and 2 of the appeal  have no merit as the suit was not  res judicata  in view of the consent of 19th November, 2008 which re opened  the hearing of the suit  denovo.

f)        The exhibits 5 is a letter dated 17th December, 2008  addressed to the Lower  court by the Appellant seeking for proceedings and judgment  of 14th November, 2008 in case No. 430 of 2007. I have  perused the court record  and there is no entry  bearing  the date of 14th November, 2008. This letter does not in any way change the evidence  that the parties  had adduced  or the finding of the learned trial Magistrate. The Appellant  also referred to exhibit 6  which appears to be a copy of a mutation form for Samia/Luchululu/Bukhulungu/1411 being subdivided  to 1487 and 1488. The court do not find  any relationship between the contents  of the mutation form  and  the Appellant’s claim that he had entered into a land sale agreement with Respondents over Samia/Luchululu/Bukhulungu/577 in 2006. There is therefore no merit on grounds  3 of the appeal.

g)     The court  has already concurred with the finding of the learned trial magistrate  that the Appellant  did not own the suit land and therefore had no capacity to enter into a  valid land sale agreement.   As such grounds 4 and 5 of the appeal have no merit as well.

4.  FINDING.

That having found as above, the court finds that  the appeal has no merit  and issues the  following  orders;

i).That the Appellant’s appeal fails and is hereby dismissed with costs.

ii).That the learned trial Magistrate judgment and orders of 5th September, 2013 are hereby upheld.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON  7th DAY OF MAY, 2015.

IN THE PRESENCE OF;

APPELLANT …………….PRESENT…………………………………

1ST RESPONDENT……    PRESENT……………………………………………………..

COUNSEL……MR. ASHIOYA………………………………………………………………

JUDGE.