Edward Barasa Wanjala v Gabriel Wapang’ana Kibiti [2017] KEHC 2739 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

ENVIRONMENT AND LAND CASE NO. 249 OF 2013.

EDWARD BARASA WANJALA………………....…..PLAINTIFF

VERSUS.

GABRIEL WAPANG’ANA KIBITI……………….RESPONDENT

JUDGEMENT.

[1]. The Plaintiff claims a refund of Kshs 230,000/= being the purchase price of one (1) acre out of land Parcel Chwele/Bokoli/58.  He claims that he paid this money by instalments, of  Kshs 130,000/= on 3/4/2009, on 24/04/2009 Kshs 29,000/= and Kshs 18,000/=,  on 18/11/2009 Kshs18,000/= and on 22/08/2010 Kshs35,000/= all totaling Kshs 230,000/=.  He produced an acknowledgement of the same signed by himself and the defendant and other witnesses.  He called Gerishon Sirengo who confirmed the acknowledgements and confirmed that he actually wrote the acknowledgements.

The defendant confirmed that an agreement for sale of one (1) acre out of his land Chwele/Bokoli 58 at an agreed consideration of Kshs 230,000/= was made.  He agreed that on the first day he received Kshs 130,000/= then a payment of 29,000/= leaving a balance of 71,000/= which remains outstanding todate.  He admits he signed for the payment of Kshs 130,000/= and Kshs 29,000 but denied having signed for the balance of Kshs 71,000/=.  He called the acknowledgment for Kshs 18,000/= twice and Kshs 35,000/= a forgery.  It is worth of note that all those payments are on the same page with his admitted payment of 29,000/=.  The signatures to this payment to the naked and untrained eye look exactly the same.  There are other witnesses too.  The defendant has kept this money since 2009 nearly 8 years now.  It is alleged that the defendant has since sold the land to somebody else.   The defendant says he is willing to refund the amount he acknowledges with interests.

[2]. He did not have to wait for nearly 8 years to do so.  The Plaintiff had to go to the Police to complain where upon the defendant was charged with obtaining by false pretence vide Bungoma CM Cr. Case No. 524 of 2012.  The fact that the defendant was acquitted of a Criminal Case whose standard of proof is beyond reasonable doubt is no reprieve in a Civil Suit.

I find that the plaintiff has proved his case on a balance of probabilities.  I find that the defendant owes the Plaintiff Kshs 230,000/= paid to him in 2009.  He will pay back that money to the plaintiff with costs and interests from the filing of this suit.

It is so ordered.

Ruling read in Open Court in the presence of M/s Wanjala.

Dated at Bungomathis   4th  day of   October,2017.

S. MUKUNYA

JUDGE.

In the presence of:

Court Assistant:  Chemutai/Joy

Ms Wanjala for Olonyi for the Plaintiff

Nanzushi for the defendant