J K M v Mulandi & M W [2015] KEHC 2457 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  606 OF 2005

J K M ……….........................……….  PLAINTIFF

versus

BISHOP MULANDI....……………1ST DEFENDANT

M W…………..................……….2ND DEFENDANT

JUDGMENT

The plaintiff J K M  filed Thika PMCC No.367 of 1994  against the defendants  herein Bishop Mulandi and M W which suit  was later  transferred  to Nairobi HCC 606 of 2005  after the plaintiff claimed that  what he was seeking  as compensation from the defendants  was in excess of  Kshs 30,000,000.

On 27th November 1998, Honourable E.O. Awino Senior Resident Magistrate stayed the suit in the lower court for want of jurisdiction and the plaintiff obtained orders of this court to transfer the suit to the High court for hearing and final disposal vide Nairobi HC Misc.  Appl. No. 936 of 2004  which orders of transfer were issued by honourable P. Kihara Kariuki J(as he then was).

It is  also worth noting that  the plaintiff herein did  apply and was granted  leave of this court vide Nairobi HC Misc App. 533/2004  to sue as a pauper  on 9th July 2004 by Honourable  Justice Nyamu(as he then was).  The plaintiff has therefore all along prosecuted his case as a pauper and as a prose litigant.  Save  for the figures of Kshs 30,000,000 the claim before this court and the Thika court is the same and this court shall  consider  the Thika  suit as  the original  suit  and deem this suit as  having been amended  to specify  the amount  received from one, Mr Klaassen of the Netherlands.

The plaintiff however filed a fresh plaint on 19th May 2005.  Nonetheless, the claim is the same as what  was transferred  from Thika  PM’s court  vide his plaint filed in this court on 19th May 2005, and dated  the same day. the plaintiff  claimed  that  the 1st defendant Bishop Mulandi received  kshs 30,000,000 on his behalf from one Mr C.G. Klaassen of Netherlands between the months of November 1993 and thereafter the 1st defendant   who was a Bishop  eloped with the plaintiffs  wife  who is the second defendant taking with her  all his household  goods after she was promised to be  given a share  of that money by the 1st defendant.

The household goods were valued at kshs 50,000.  The plaintiff prayed that the 1st defendant be ordered to give accounts of the money that he had received on behalf of the plaintiff from Mr C.G. Klaassen of Netherlands.  The plaintiff also prayed for general damages to be assessed by the court, costs of the suit and interest.  The plaint is poorly drafted but nonetheless the claim is clear.

Only the 1st defendant  filed his defence on 15th March 2006 denying  each and every allegations made  by the plaintiff against him  stating  that the suit does not disclose any reasonable cause of action and that the same is statute  barred  hence it should be struck out  with costs.

The plaintiff testified as PW1 on 5th February 2005 to the effect that he is a trained accountant and holder of CPA III.  He was a practicing accountant in Thika and retired in 1992/1993 because of a mental sickness but that he had been treated by Doctor Thuo and he is now well enough to follow the proceedings.  He stated that he knew both  defendants, the 2nd defendant  was his wife  of more  than 7 years  and that she is the one who introduced  him to the 1st defendant  who was  her Bishop at Thika Christian Church.

The plaintiff  claimed that the 1st defendant  went to  see him  over his daughter J W then  schooling at [particulars withheld] Primary School and who  was mentally handicapped  so the 1st defendant  wanted to  assess  her condition with a  view  to  assisting her get a to a special school  in Karatina for the mentally handicapped where he  would sponsor her.

That  the 1st defendant brought  a letter from the said school  showing  the child’s requirement  and he  asked if  the plaintiff could  raise half  fees  and the 1st defendant  sponsors half and the plaintiff  agreed to the proposal.  The plaintiff produced P exhibit 1 copy of the said letter.  The plaintiff  claimed that  he paid to his wife  the 2nd defendant  half of the kshs 8,800 required  for his daughter’s admission into the special school and the 1st defendant  paid the rest of the money by cheque  and his  daughter  went to the special school.  That the 1st defendant then kept  visiting him at his accountancy offices  in  Thika town  for friendly  discussions on a weekly basis  and on 22nd October 1993  the 1st  defendant  invited the plaintiff to  his office and produced  a letter which he had received  from  the Netherlands written by one Mr C.G. Klaassen of Rotterdam which he  gave the plaintiff to read  and which letter   urged the 1st defendant  to introduce a person  to Klaassen so they could connect  and use  that person to  establish  missionary work in Kenya.

That after  reading the said letter  the plaintiff  returned  it to the 1st  defendant who advised  the plaintiff  to write an application for help from Mr Klaassen which the plaintiff  did, and the said letter  was posted .  The plaintiff produced as P exhibit 2 a, b and c the handwritten note from Bishop Mulandi, the letter written to Klaassen and certificate of posting.  The plaintiff claimed that after posting that  letter to Mr Klaassen, the  2nd defendant became complicated  alleging that  since she had  introduced  him to Bishop Mulandi, should the money  come from Klaassen then she  must control it otherwise  she would block the money  reaching the plaintiff.

According  to the plaintiff, Mulandi  went to the Netherlands and  upon his return, the 2nd defendant  was  the first to  meet him and she invited the plaintiff to go meet  the Bishop  in his office  where the 1st  defendant informed   him that  Mr Klaassen had  given him kshs 500,000 which he produced in bale of notes and  placed on the table and asked the  plaintiff to  write a proposal to be send to Klaassen indicating how the plaintiff  wished to use  the money.  That  the  1st defendant also revealed  to him that  the 2nnd defendant  had complained  that the plaintiff had  beaten her .  That when he returned to his place of work, he met his wife, the 2nd defendant crying alleging that he had beaten her and they both went to Bishop Mulandi who chased them away saying that he would give the money to whoever remained with the children.  The plaintiff stated that he went to his  work place and gave money  to the 2nd defendant  to buy more stock  for her business  but instead  she hired a lorry  and carted away all the stock  from her business and household goods and left  him and  she recorded  a statement  at Thika  Police Station warning  him not to disturb her.  He produced P exhibit 3 a note from Thika Police Station.  Later the 2nd defendant swore an affidavit (PEX4) stating that she had never been married to anybody and that she was not aware of any money.

That in 1994, the 2nd defendant swore another affidavit denying marriage or any bank account jointly held with the plaintiff. He produced that affidavit as PExhibit 5.  The plaintiff also produced P exhibit 6 bank statement with Barclays bank A/C [particulars withheld] in joint names of himself and the 2nd defendant.  He also  produced  house rent  receipts  for monies  paid to their landlord  in Thika  in the names  of the  2nd defendant  at Makongeni phase 9 plot [particulars withheld]   as P exhibit 7.

He explained that he first filed this suit in Thika but when the damages he was seeking exceeded the pecuniary jurisdiction of that court, he obtained an order transferring it to the High Court.

He urged the court to  grant him  kshs 30,000. 000 to be  paid  by Bishop Mulandi, who  should also  be ordered  to pay  him any monies received  from  Klaassen on his behalf on a  monthly basis  which Mulandi did  not surrender  to the plaintiff.  He also urges the court to order Mulandi to produce the foreigner to court for disclosure.

In cross examination by Mr Mboha, the plaintiff admitted that he had mental problems from 1988-1992 but that he had fully recovered although he did not have any documents from a doctor to show that he had fully recovered.  He also stated that he did not have any agreement from Mulandi to pay ½ fees for his daughter.  He stated that M W was his wife under Kikuyu customary Law.  The plaintiff  indentified  P exhibit 2(a) a note which  he conceded  did  not have Mulandi’s  name but  was emphatic that  it was  written by Mulandi.  He also admitted that P exhibit 2(b) letter to Klaassen did not specify the amount.  He also  admitted  that he did not count  the money that Mulandi showed  him in a bale  and that Mulandi  was alone  when he  showed  the plaintiff  the said money.  He confirmed that  the foreigner  had never  written to  him stating that Mulandi had received  the money  and that  he did not  have any acknowledgment  or an agreement  with Mulandi  that the  latter  owed him money.  He stated that his wife  stole  from him but he did not  report to the police because  she had already reported  him to the  police who  had written   to him  cautioning  him to keep peace  and not to disturb her.  He stated that he did not have any proof of ownership of those goods his wife had carted away because they were household goods.  He also stated that he did not write any letter to the foreigner concerning the issue of money.

When questioned  by the court, the  plaintiff  stated that  he lodged  a complaint  at Thika Police Station and to the  chief  after his  wife took  away the belongings but that  he did not file for divorce.  Further, he stated that his children visit him although the one who went to the special school died after the 2nd defendant deserted the matrimonial home.

The defendants did not call any evidence and closed their case.  Both parties filed written submissions with the defendants filing first and the plaintiff responding thereto.

The defendants  submissions  as filed on 25th February 2015 urged this court to dismiss the plaintiffs suit  with costs  as the plaintiff had  not proved  his case against  the defendants  on a balance of probabilities.

In their view, the plaintiff  did not prove  that the 1st  defendant  received kshs 50,000,000 on his behalf  from the foreigner  and it was not clear  how he  arrived  at that astronomical figure.  Further, that there was no evidence that the 1st defendant had received any money from C.G. Klaassen and or even corresponded with the alleged foreigner.

In addition, it was contended by the defendants that the alleged taking  away of the plaintiff’s  household  goods  by his  estranged wife valued at kshs 50,000 was not proved  as no inventory or receipts  were  produced to proof ownership of the said items.

The plaintiff filed his submission on 10th March 2015.  He  submitted that it was  erroneous  for the defence counsel to  allege  in their submission  that the plaintiff  had claimed for an  astronomical figure  for kshs 50 million which  was never pleased anywhere, as he had  asked for kshs 30 million.

The plaintiff maintained  that he had  proved the existence of a relationship  of husband and wife with  the 2nd defendant as he had produced  bank statements with Barclays bank  A/C [particulars withheld]  wherein  the two were joint account  holders and that one  of his daughters  with the 2nd  defendant  A W  was named after  his mother  in accordance  with Kikuyu customary law and that the other one W obtained her identity  card in his name.

The plaintiff urged the court to disregard the defendants’ written submissions as they are full of falsehoods and exaggerations.

He urged the court to find that the 1st defendant  had received  money  from C.G. Klaassen of Netherlands in the sum of kshs 500,000 on his behalf  as it was the plaintiff who  had send an application to the said  foreigner  Mr Klaassen asking for  the money, which he believes the 1st defendant used to entice  the  plaintiff’s wife-the 2nd defendant  away.

He submitted that he could not have been expected to count  the money which he was shown by the 1st defendant  or even sign an acknowledgement  as the 1st  defendant was  the one to deal with  the foreigner  on behalf  of the plaintiff.  The plaintiff charged that the 1st defendant being a Bishop should have mediated to reconcile the plaintiff with the 2nd defendant instead of keeping them apart.  He urged the court to order the 1st defendant to produce the foreigner to court for the court to know who that person was.

He also urged the court to enter judgment for the plaintiff against the 1st defendant for causing a separation between the plaintiff and his wife the 2nd defendant.  He also prayed for   costs of the suit and interest.

The parties did not frame any issues for determination by the court. None of them relied on any decided cases or statutory provisions of the law.  However, pursuant to order 15 Rule 2 of the Civil Procedure Rules, the court may frame issues from all or any of the following materials:

Allegations  made on oath by the parties or by persons present  on their  behalf, or made  by the advocates  of such parties;

Allegations made in the pleading  or in answers to interrogatories  delivered  in this suit;

The contents of documents produced by either party.

From the particulars  contained  in the plaint  and defence and the oral evidence  adduced  by the plaintiff  and the parties respective  submissions  as filed and  exchanged, these  are the issues  for determination:

Whether on the evidence available on record, the plaintiff proved his case against the defendants on a balance of probabilities.

What orders should this court make.

Who should bear the costs of the suit.

On the first issue, it is  trite  law that the burden of proof lies  with the person who alleges  the existence  of a fact.  See Section 107 of the Evidence Act.  In this case, the plaintiff alleges in his  plaint that the 1st defendant  forced the plaintiff’s wife who was the 2nd defendant  to flee with  property  worth kshs 50,000.

Further, that  the 1st defendant  received  over kshs  30 million  from C.G. Klaassen  of Netherlands on his behalf  and has refused to hand over  the said money  to the plaintiff and  or  account for it  to the plaintiff.  The plaintiff  therefore  urged  this court to  order  the defendants to return his household  goods  or their value in the sum  of kshs 50,000/- and secondly, to order the defendant to pay him over kshs 30,000. 00 received  from Mr C.G. Klaassen.  He also sought for general damages.

In this case, it was  incumbent  upon the plaintiff to prove  that the items  which the  2nd defendant  allegedly took away belonged to him and that  kshs 50,000/- was their  estimated  value.  The plaintiff  testified that the 2nd defendant  was his  customary law wife.  He produced  evidence  of the two operating a joint bank  account with Barclays bank, Thika  and acknowledgment  receipts  for rent  remitted  to their landlord in Thika  issued  in her name.  He claims that he used to give her money to  pay rent for the family.  He also  produced exhibit 3  a notice from OCS Thika Police Station to him to keep peace following  a complaint  by his  unnamed wife.  The note  is dated  5th January 1994.  The plaintiff also produced two  affidavits  sworn by the 2nd defendant  denying that she was ever married to the  plaintiff  or to any other person.

The  2nd defendant  nevertheless did not  file any defence in this case and  neither  did she  give evidence  as a  witness.  The defence  filed by the 1st  defendant  on 15th March 2006  only covered  the 1st defendant.

Assuming that the 2nd defendant was married to the plaintiff  since his  evidence  on their customary  law marriage was not controverted, this court  finds that the plaintiff failed  to discharge the burden of proving  that the  2nd defendant  was forced  out of her matrimonial  home by the 1st defendant.  This court also finds that there was no proof that the 2nd  defendant  took away the plaintiff’s household goods valued  at kshs 50,000/-

The plaintiff stated that  he did  not report to the police  the fact  of his household  goods being stolen by the 2nd defendant because  the 2nd defendant had already reported   him to the police and he  was ordered   to keep  peace.

In my view, the plaintiff  should have made a theft  report  for action to be taken against the  2nd defendant  if he believed  that his property had been stolen by  his wife especially after she swore  an affidavit  denying  that she had  never been married  to him at the material time.

In addition, household  goods are tangible  assets.  In his  plaint and testimony, he did not  specify the alleged household  goods that his wife  was forced by the 1st defendant to ran away  with and or their respective values.  That being  the case, this  court is unable  to find any  evidence proving the act of the 2nd defendant  taking away  household  goods  belonging to the plaintiff.

There is  then the question of the foreigner from Netherlands, a Mr Klaassen having send to the  plaintiff over kshs 30,000,000 through the 1st defendant, which money  the 1st defendant  is said to  have used to entice  away the plaintiff’s wife, and which sum of money was inclusive  of the initial  kshs 500,000/- received  by the 1st defendant  and shown to the plaintiff in bundles.  With utmost respect to the plaintiff, this was a wild claim reminiscent of the plaintiff chasing an untamed goose.

There was no evidence  to prove that  the 1st defendant was under any  contractual  duty to receive  any  money from C.G.Klaassen from Netherlands  on behalf of the  plaintiff.  In my view, the plaintiff  must have  been suffering  from some form of insane delusions  or hallucinations when at the time of instituting this suit in Thika Court and its eventual transfer to this court. This is not to say that he is of unsound mind, as he prosecuted his case very well and impressed this court as a very intelligent person. The plaintiff nonetheless  admitted  in cross examination  and on being questioned by  the court  that he  suffered a mental disease but that  he had now recovered.  This court  highly doubts that the plaintiff  had fully recovered from the mental breakdown when he instituted this suit and if at all  he had  recovered, he did not  avail the doctor’s  medical  report to demonstrate  his  actual mental state as at the time he filed this  suit in 1994.  In my view, the  plaintiff still suffers from some disturbance of the mind. In his P exhibit 2, a letter written to  the foreigner  on 22nd October 1993 he  admitted  at page 2 paragraph 1 that “from early  1988 I was affected mentally by a certain disease and the  disease  that have  been treated by doctors  in Thika Town and have not released me complitly (sic) and the disease  that have spoiled  my ways of earning.”

It is  in the said  letter  to the foreigner that he  mentioned  that he had  been  introduced  to Klaassen by Bishop  Mulandi  to explain his problems  and seek help and even  provided  his bank account with Standard  Chartered  Bank account No. [particulars withheld] where money  could be channeled.

There is no evidence that the  letter which  was send to solicit for  the money from Mr C.G. Klaassen  which money is alleged to have been misappropriated by the Bishop was responded to by the foreigner.  The plaintiff  had the said foreigner’s telephone number as given to him by Bishop Mulandi ( see P exhibit 2)  which  was [particulars withheld] but there is no evidence that he ever attempted to call that foreigner to inquire on the money.  The  plaintiff also had the foreigner’s address which was Kruipbrem 14 3068 TH Rotterdam The Netherlands.

Nothing prevented  the plaintiff  from corresponding with the  said foreigner directly to inquire  about the assistance  that the plaintiff had  sought from him and  or whether  the said assistance  had been channeled  through Bishop Mulandi, the 1st defendant, since  the plaintiff  had the contacts  of the donor.

In  my view, this claim by the plaintiff against the 1st defendant  is not only farfetched  but frivolous, vexatious and an abused of the court process. It is  acclaim with no head, tail o r feet to stand on. It is a baseless claim and therefore it must fail on all its fours.

This court from the pleadings on  record  and the general conduct  of the plaintiff  makes an inference  that the  plaintiff was not  a fit person to file suit  at the  time he so filed as  his mental faculties  were not in their proper state.  He required a guardian ad litem then since he admitted that he had suffered a mental disease condition which had not left him completely. He also required a legal counsel to counsel him on whether his  claim raised any reasonable  cause  of action.

In my view, this is a claim that was only intended  to embarrass  the 1st  defendant who is  said to  be a Bishop of a church in Thika.

I find that the plaintiff’s claim has not been proved  to the standard  required in  civil cases- on a balance  of probabilities  that the 1st defendant  received  monies  from an unknown  foreigner, a Mr C.G. Klaassen of Netherlands on behalf  of the plaintiff and or that the said 1st defendant  was to receive  such  monies  from a foreigner  on behalf  of the  plaintiff.  As I have stated before,  nothing  prevented  the  plaintiff from reporting  the matter  to the  police  to investigate  what sounds like conversion or  extortion. Kshs 30,000,000/- in 1994  was not little  money to the  Kenyan economy.  The plaintiff  did not even seek to investigate  the 1st defendant’s bank account to show whether  such monies  were being received from  outside  the country  and deposited  into a bank account on a monthly basis.

There is also the plaintiff’s claim  for general damages  in paragraph 2  of  his plaint.  He does not state the  damages  for what .  In his sworn evidence and  submission, he does  not specify  for what purposes he sought  general damages. Furthermore, he does  not quantify the  loss and or  the damages  that he wished  this court to award him.

In paragraph 10 of his submissions, the  plaintiff urges  the court to  enter judgment  for orders against  the 1st defendant  who caused  separation between him and the 2nd defendant because  of the  application (sic) and money.  Such claim is unknown in law and equity and therefore this court cannot quantify  or award general damages  for a  claim that does not  disclose any  cause of action known in law.

This court has also not come across in the pleadings any claim under any established customary law pleaded for either for adultery or wife enticement or other known claim against the 1st defendant.  The bare allegations that the 1st defendant caused a separation between the plaintiff and the 2nd defendant which separation only death could bring is unknown in law and is therefore not actionable.  In the same breath, this court is unable to find reasons for compelling the 1st defendant to produce the foreigners to court.

Accordingly , I find that  the plaintiff  has failed to  prove his case against the defendants and in this case, it matters not that  the defendants  did not offer any evidence  to controvert  the plaintiffs  evidence.  The burden of proof did not shift from the plaintiff to the defendants  even if the case proceeded by way of formal proof as they had no counterclaim against him.

I therefore make an order dismissing the plaintiff’s suit against the defendants.

As to who should bear the costs of the dismissed suit, I note that the plaintiff is an ascertained pauper. He instituted this suit after being declared a pauper by the court on his own application.  He drafted pleadings and prosecuted the suit on his own as a prose litigant.  He admitted to have suffered from a mental disease and being treated for the same.  He did not satisfy the court that he had fully recovered from that ailment that he admitted was of the mind as there was no medical report to certify his current mental state or capacity.

There is also no evidence that he is now possessed of any means, leave alone sufficient means to pay costs of this suit which follow the event.  For those reasons, the suit is dismissed, but each party shall bear their own costs.

Dated, signed and delivered in open court at Nairobi this 7th day of July, 2015.

R.E. ABURILI

JUDGE