Harrison Wanjohi Wambugu v Felista Wairimu Chege & Peter Chege Njau [2014] KEHC 421 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL APPEAL NO.67 OF 2006

BETWEEN

HARRISON WANJOHI WAMBUGU.................................................. APPELLANT

AND

FELISTA WAIRIMU CHEGE .................................................  1ST RESPONDENT

PETER CHEGE NJAU...........................................................  2ND RESPONDENT

(Being an appeal from the judgment of S.M. Mungai, PM dated

17th August 2006 in Nyahururu PMCC No.274 of 2004)

JUDGMENT

1. By a plaint dated 31st August 2000, the appellant sued the respondent claiming General damages for pain, suffering and loss of amenities, wrongful eviction from plot no.3222 Ziwani Estate Nyahururu and special damages.  It was pleaded that on or about 31st day of August 1997 the defendants invaded into the plaintiff's business premises and forcefully broke the door thereto using heavy building stones and proceeded to illegally and severely assaulted the appellant.

2. It was pleaded that the said act of the respondents were conducted and executed in bad faith and amounted to an illegal attempt by the defendants/respondents to to pre-empt, frustrate and totally defeat the proceedings in Business Rent Tribunal Cases No.13 and 15 of 1997 at Nyahururu.  The appellant further pleaded the particulars of injuries and special damages.

3. By a defence dated 8th December 2000, the respondents denied the claim and by way of counter claim claimed the cost of the suit being PM's Criminal Case No.3253 of 1997 and Nakuru High Court Tribunal Case No.15 of 1997 and travelling expenses.

4. The case proceeded for trial before S.M. Mungai the Principal Magistrate who dismissed the appellant's case on the basis that the defendants were acquitted in criminal case No.3253 of 1997 for the basis that the appellants were assaulted by a crowd of people and on lost shop and household goods on the basis that the report by the Rent Inspector concluded that he was not operating a shop.

5. Being dissatisfied by the said judgment the appellant filed this appeal and listed the following grounds of appeal:

1) The learned magistrate erred in law and fact by disregarding the appellant's evidence in proof of his case.

2) The learned magistrate erred in law and fact in holding that the respondent's evidence was reliable when in fact, he failed to bring his judicial mind why the appellant was being beaten by neighbours and arrested by the police on a complaint by the respondents.

3) The learned magistrate erred in law and fact in regarding a report form the Rent Inspector when the said inspector was not called to adduce evidence on the report.

History

6. On 5th May 2008, the appeal herein was dismissed by M.S.A. Makhandia, J as he then was under the order XLI rule 14 of Civil Procedure Rules with cost to the respondent and on 8th July 2008 the appellant's application for reinstatement of the dismissed appeal was also dismissed.

7. The appellant moved to the Court of Appeal in Civil Appeal No.295 of 2009 Nyeri which on 10th day of October 2013 allowed the appeal and reinstated this appeal for hearing on merit.

8. At the hearing of the appeal, the appellant appeared in person while the respondents who had been duly served failed to attend.  The appellant submitted that in the absence of the respondents, his appeal be allowed and judgment entered in his favour.

9. This being a first appeal, the court is required to re-assess the evidence tendered before the trial court afresh though taking into account the fact that it did not have the advantage of seeing and hearing witnesses.  I must however point out that the record of appeal as prepared by the appellant is not complete as copies of the proceedings in Nyahururu PMCC No.274 of 2004 are missing same for the defence evidence and judgment of the court.

10. The record as filed cannot help the court in determining the appeal herein since the lower court is a court of record from this court to understand what happened and make a determination thereon the court record must be available.

11. It therefore follows that the appeal herein is incompetent and in the interest of justice taking into account Article 159 of the Constitution, the appellant is granted leave to file and serve a suplementary record of appeal within the next 7 days from the date herein failure of which the appeal stands dismissed with cost to the respondents.

Signed and dated…………..day of .……….2014

J. WAKIAGA

JUDGE

Delivered by Justice J. Ngaah on behalf of Justice Wakiaga this 25th day of November 2014

J. NGAAH

JUDGE.

In the presence of:-

----------------------------------- for Appellant

----------------------------------- for Respondents

----------------------------------- Court Assistant