James Ng’anga Muriuki & Dricos Help Group v James Nakhulo Orodi [2015] KEHC 2993 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

HC. APPEAL  NO. 56 OF 2012

JAMES  NG’ANGA MURIUKI……….1ST APPELLANT

DRICOS HELP GROUP……………..2ND APPELLANT

VERSUS

JAMES NAKHULO ORODI……………RESPONDENT

J U D G M E N T

1.      BACKGROUND

JAMES  NG’ANG’A MURIUKI  and DRICOS  SELF HELP GROUP,

hereinafter referred to as the 1st and 2nd Appellant, filed Busia CMCC. NO. 406 of 2008 against JAMES NAKHULO ORODI, hereinafter referred to as the Respondent, through the plaint dated 27th November, 2008.  They prayed for Respondent to be restrained from interfering with the ‘’2nd Plaintiff’s peaceful and quiet occupation and use of LR. No. Bukhayo/Bugengi/5198. ’’ and costs.  The trial court delivered its judgment on 30th August, 2012 in which the Appellants suit was dismissed with half the costs.

The Appellants, not being satisfied with the trial court’s judgment  of 30th August,  2012 filed this appeal through the Memorandum  of appeal dated 27th September, 2012  on the 28th September, 2012 setting out seven grounds.

The Appellant then filed the Record of Appeal dated 25th March, 2014on the 26th March, 2014  following the directions issued by this court on 5th March, 2014.

The 1st Appellant , who is also  Chairman to the 2nd Appellant, and Mr. Ipapu  advocate  for Respondent,  appeared in court on 2nd March, 2015  and agreed to have the appeal  heard on 13th May, 2015.

The 1st Appellant presented submissions on behalf of the 2nd Appellant and himself on 13th May, 2015.   Mr. Ipapu  advocate for the Respondent also offered his submissions on the same date.

2.      THE APPEAL.

The Appellants’ seven grounds in the memorandum of appeal are summarized  for the purposes of this judgment as follows;

That the learned trial Magistrate erred in fact and law by allowing a person not lisenced to practice as an advocate to represent the Respondent.  [Ground 1].

The learned  trial Magistrate  erred in fact and in law by preparing  and delivering a judgment  in  a case heard by another judicial officer over a land parcel not pleaded and against  a person who  was not a party in the proceedings. [Combination of grounds 2, 3 and 6].

That the learned  trial Magistrate erred  in fact  and law by shifting or attempting to shift the burden  of proof of allegations made by the Respondent on the Appellants and basing the judgment on the wrong ratio decidendi. [Ground 4 and 5]

That the  learned trial Magistrate erred in law and fact by condemning the  Appellants pay the costs of the case in contravention of the law, fact  and equity.[Ground 7].

b)       During  the hearing of the appeal, the 1st Appellant submitted as follows;

That the advocate who represented the Respondent  during the trial court proceedings did not have a practicing certificate.

That the learned trial Magistrate who delivered the judgment  was not the one who had heard the witnesses.

That the suit property was Bukhayo/Bugengi/5198 but the trial court erred to say it did not exist  while they had documentary evidence issued by Lands office showing the contrary.

That the Appellant had adduced sufficient evidence  to get the judgment  in their favour.

That the Appellants  had availed other witnesses who were not accorded the opportunity to testify  by the trial court.

That the  Appellants  have no dispute with the person who sold the suit land to them.

That the Appellants had applied for execution  of costs to be stopped but the  execution  took place nevertheless.

That the Appellants  should be allowed to call further evidence of two  witnesses  and to produce additional documentary evidence.

That the Lower courts orders of 30th August, 2012  should be set aside and judgment   in favour of the Appellants entered.

That  the advocate who represented  the parties in the lower court case and this appeal operated from the same offices and that  the advocates played around with them as they knew the details  of the documentary  evidence  in their possession.

c)     The counsel for the Respondent submitted  as follows;

That the appeal was filed out of time and without leave.  He submitted  that the appeal was filed on 5th November, 2012  over the judgment delivered on 30th August, 2012.

That the appeal as filed is not competent as  no decree has been extracted and annexed  which contravenes Order 42 Rule 1 (2) of the CPR.

That there was no issue  raised and decided on the capacity of the counsel representing  the Respondent in the Lower court proceedings and  therefore the issue of counsel’s  capacity cannot be a ground of appeal.

That the  law allows a Magistrate  who has not  heard  the evidence to prepare and deliver judgment on the evidence on record.  That the Appellants did not raise any objection to the Magistrate who had not heard the evidence preparing and delivering the judgment.

That  the Lower court  record shows that the Appellants were allowed  to reopen their case and the claim that their witnesses were locked  out cannot be true.

That the  learned trial Magistrate was right to find that the Appellants had been duped by their witness ,(PW 2)  into buying  a non-existent suit and  their appeal should be  dismissed with costs.

3. That  having considered the pleadings and submissions  by the 1st Appellant  and counsel  for the Respondent, the court   finds  the following issues are for determination in this appeal.

a)      Whether  the capacity of the  counsel representing  the Respondent  in the trial  court was raised and if so whether the learned  trial Magistrate’s decision  on the matter  was erroneous.

b)      Whether  a Magistrate who has not heard the witnesses is allowed by the law to prepare and deliver judgment on the evidence  on record, and if so, whether the judgment of 30th August, 2012  was over  a parcel of land that was not in the pleadings and against  a person who was not a                          party in the proceedings.

c)      Whether the learned trial Magistrate  based  the judgment  of 30th August, 2012  on the wrong ratio decidendi and whether the learned trial Magistrate  shifted or attempted to shift  the burden of proof on allegations raised by the Respondent to the Appellants.

d)    Whether  the learned trial  Magistrate erred in ordering the Appellants  to pay half the costs of the suit to the Respondent.

4.    ANALYSIS OF  THE APPEAL.

This court is obliged to re-evaluate the evidence adduced before the trial court bearing in mind that it did not see or hear   the witnesses testify and draw its own conclusion on the evidence  as this is a first appeal. [see Seller –v- Associated  Motor  Sport Company Limited 1968 E.A 128].  The court will go through the process of re-evaluating the evidence as it addresses the grounds of appeal put forth by the Appellants.

The  a court  has perused the lower court  file and noted that the Appellants filed the plaint dated 27th November, 2008 through M/S. Maloba  and company advocates.  The Respondent filed the defence dated 8th January, 2009 in person.   Then on 8th September, 2009, M/S. Ipapu  Jakaa & company advocates  filed a notice of appointment of advocate  coming on record for the Defendant.  Then M/S. Gacheche  Wa Miano  filed a notice of change of advocate  dated 10th December, 2009  coming on record for the Appellants, (Plaintiffs), in place of M/S. Maloba & company advocates.  Then  on 17th December, 2009 M/S. Ipapu P. Jackah & company advocates, filed a notice of appointment for the Defendant, (Respondent).  The court has further noted that the Appellants filed a notice of motion dated 9th August, 2011 under Order 2 Rule 15, Order 51 Rule 1 of the Civil Procedure Rules  and section 3A of Civil Procedure Act  seeking to have the defence and pleadings ‘’filed and argued on behalf of the Defendant/Respondent  in this matter  be dismissed and/or be stuck out with costs….’’  In the supporting  affidavit sworn by Gacheche Wa Miano  on 9th August, 2011, the deponent indicated that Ipapu  Jackah advocate had no valid practicing certificate for the year 2011  and that he had not obtained one since 2009.   There  is however no evidence  to show whether the application was ever served on the Respondent’s counsel.   When the case came up in court on the first date following the filing of the application dated 9th August, 2011, it was for hearing of another application by the Appellants dated 26th July, 2011seeking to recall the District Land Registrar  to produce  some documents.  This  was on 26th April, 2012 before Honourable B.A. Ojoo, Principal Magistrate.  The court  record shows Mr. Miano  for the Appellants was present  and he told the court  the matter was for directions.  The court rescheduled  the mention to 17th May, 2012  as counsel for the Respondent was absent.  The matter was again  rescheduled by Appellants’ counsel to 26th June, 2012.  On that day both counsel were present  and each addressed the court after which the trial  court made the order that application dated 26th July, 2011  was marked withdrawn and that submissions would be  on 12th July, 2012.  The  counsel for the Appellants did not mention or address the court on the application dated 9th August, 2011 challenging the Respondent’s counsel  capacity and  the trial court  did not at any one time pronounce itself on the issues raised in that application. The next  court appearance was  on 12th July, 2012  when counsel indicated that they had filed written submissions and Honorable B.A. Ojoo, Principal Magistrate fixed the case for  judgment on 16th August, 2012.  The judgment was eventually delivered  on 30th August, 2012.  There is no indication  as to what happened on the earlier  date of 16th August, 2012.  The law  does not allow a person who is not qualified to act as an advocate.  Section 2  of the Advocates Act, Chapter 16 of the Laws of Kenya defines unqualified person as‘’a person not qualified under section 9 to act as an advocate.’’  Section 9 of the Advocates  Act  provides that no person shall be qualified to act as an advocate  unless, he  has been admitted as an advocate, his name is for the time being on the roll in addition to having in force a practicing  certificate  and is not suspended under sections 27 or by an order under section 60 (4) of the said Act.  The filing of the application dated 9th August, 2011 by the Appellants’ counsel in the trial court was raising  an  allegation which appear not to have been brought to the attention of the Respondent and his counsel through service.  The Appellants also  did not call the court’s  attention to the application and the trial court therefore never addressed itself to that application. The trial court did not also pronounce itself on the matter of the Respondent’s counsel’s capacity one way or the other.  The court therefore agrees with the Respondent’s  counsel submissions that the Appellants  cannot raise the issue of capacity of Respondent’s counsel  on appeal as it was never  an issue raised and determined during the proceedings before the trial court.  In  the case of Salim  Kazungu –v- Kenya Ports Authority [2001] eKLR, the  learned judge  declined to invalidated the pleadings drawn by an advocate who had no  current practicing  certificate in a case where judgment  had been entered.  In that  case Mulwa J stated;

‘’……I do not wish the Plaintiff should suffer by invalidating the pleadings and proceedings just because the persons who acted for him had not, during the period taken out his  annual practicing certificate.  Rather , l would have  the penalties prescribed under  section 30  be visited on the advocate……..  Annulling the proceedings on the grounds that the advocate did not have an annual practicing certificate cannot be  said to be one of the ways of enhancing access to justice.’’

The court agrees with the position  taken by the learned  judge in instances of proceedings that have been concluded.  But  in  instances where the capacity of the person  acting as an advocate is raised  early in the proceedings, the  court agrees with the position  taken by the court in Kingsway Tyres & Auto Mart Ltd. –v- Abon Retreading  and Company ltd  & others.  HCCC NO. 56 of 1999 (unreported) which was cited in the earlier case by Mulwa J, where the court struck out the plaint filed by an advocate who did not have a practising certificate  at the material time.  This court  therefore  finds no merit on ground one of the appeal.

b)   That on the issue touching on grounds 2, 3 and 6 of the appeal, the lower court record shows that all the evidence  was heard  by Honourable  E.H. Keago, SRM, between 17th December, 2009 and14th July, 2011.  The record does not disclose  why the said Honourable  Magistrate did  not proceed with the matter beyond that point as the judgment was prepared and delivered by Honourable B.A. Ojoo, Principal Magistrate.  The Appellants  have taken issue with this fact but the court finds no merit on that ground for the following  reasons; First, both  parties  were represented by counsel during  the lower court proceedings and therefore are taken to have received the relevant legal guidance.  When the matter came         before Honourable  B.A. Ojoo on 28th June, 2012 , the counsel  for the Appellants informed the court that the matter was partly heard and asked  the court to issue directions. The counsel for the Respondent proposed       that the matter do proceed from where it had  reached.  Then the court directed counsel  to file submissions  and  fixed  the matter for mention on 12th July, 2012.  This clearly  shows  that the Appellants were aware  that the hearing was to proceed from where the previous trial  Magistrate had  reached and there was no application to start the hearing de novo.  Secondly, the law allows the taking over of partly heard cases as can be seen in Order 18 Rule 8 (1)  of Civil Procedure Rules which states;

‘’ 8 (1)  Where a judge is prevented by death, transfer or other cause from concluding trial  of a suit or the hearing of any application, his  successor may deal with any evidence taken  down under the foregoing rules as if such evidence   had been taken down by him or under his direction under the said rules, and  stage at which his predecessor left it.’’

This  is exactly  what Honourable B.A. Ojoo did with the concurrence of the parties counsel and there was no prejudice suffered by the Appellants.  Thirdly, on the issue of the subject matter of the suit, the plaint dated 27th November, 2008 clearly shows that it was land parcel Bukhayo/Bugengi/5198 which the Appellants alleged that  they  had bought from Harold Lungaho Navodera, who testified as PW 2,  before the learned  trial Magistrate.  The court  also notes that the Respondent  in  the defence dated 8th January, 2009 pleaded that he is the registered proprietor  of Bukhayo/Bugengi/5163 and disputed the Appellants’ claim that they were the registered proprietors  of parcel Bukhayo/Bugengi/5198. During the hearing before the trial court, PW 2 testified  that the  land Parcel Bukhayo.Bugengi/5198,  which he sold to the Appellants, had come from Bukhayo/Bugengi/5163 and that he had bought it from the Respondent.  The Respondent  testified  as DW 1, and told the court that he owned Bukhayo/Bugengi/5163 which he  later subdivided  into parcels  Bukhayo/Bugengi/8231 and 8232. He further testified that Bukhayo/Bugengi/5198, which the Appellants  were suing on, did not exist, and denied  selling it to PW 2.  The learned  trial Magistrate analysed the evidence adduced  before the Lower court in her judgment  of 30th August, 2012 and held as follows;

‘’ In my view, it was incumbent upon the Plaintiffs  to demonstrate     the nexus  between their land No. 5198 and the original  land No.5163 to establish a cause of action.  In  his regard, the evidence  of PW 2  and PW 4  were key to establish a case. Whereas  it has been shown that PW 2 may have purchased  the suit land from the Defendant, there was no cogent evidence  led to support this allegations. It is trite  law that he who alleges must prove,………….I sympathize with the Plaintiffs  but it is clear they could have purchased a non-existent  parcel of land and or the location of the suit parcel was deliberately switched perhaps by collusion with the Lands office personnel…….. their redress would best  lie with the person  who purported to sell them the land in terms of a refund.  I dismiss the plaintiffs suit against the defendant.’’

The provision of section 116 of the  Evidence Act Chapter  80  of Laws of Kenya requires the person challenging  ownership of something in possession of another to offer proof.  The  evidence adduced before the trial court shows that the land the Appellants alleges  is Bukhayo/Bugengi/5198, but which  Respondent alleged was Bukhayo/Bugengi/8231,  is occupied  by the Respondent .  It was therefore  the duty of the Appellants to offer evidence  that the land  the Respondent occupied was parcel Bukhayo/Bugengi/5198 and not Bukhayo/Ebusibwabo/8231.  The trial  court did not shift  the burden of proof as alleged.  Though  the Land Registrar, who testified  as PW 4,  indicated that the title documents issued for parcels Bukhayo/Bugengi/8231 and 5198 were all genuine and that they were  both subdivisions from Bukhayo/Bugengi/5163, the mutations creating  Bukhayo/Bugengi/5198 were not  availed to the trial court.  The documents  allegedly  used to transfer Bukhayo/Bugengi/5198 from the Respondent to PW 2 and  from PW 2  to 2nd Appellant  were  also not availed before the trial court.  The responsibility  to ensure  those documents were produced lay with  the Appellants. The court also notes that land parcel Bukhayo/Bugengi/5198  did not exist in the 2010 survey map that was produced  as exhibit  by PW 4.  The  Respondent’s  defence was that he never subdivided his land parcel Bukhayo/Bugengi/5163 to create parcel  Bukhayo/Ebusibwabo/5198.  He further denied the existence of Bukhayo/Bugengi/5198 or selling it to PW 2. It was also not clarified whether  PW 2  had taken possession of the land described  as Bukhayo/Bugengi/5198 after buying it from Respondent, and whether  he placed the  2nd Appellant  in possession by showing  him the parcel’s physical position on the ground.   For the reasons set out above, the court concurs with the finding of the learned trial Magistrate that the Appellants failed to prove that land parcel Bukhayo/Bugengi/5198 was a subdivision from Bukhayo/Bugengi/5163 and that it exists on the ground for the court to issue the injunction order sought.  The learned trial Magistrate was therefore correct in view of the decision of the Court of Appeal in Munyu Maina –v- Hiram Gathina Maina [2013] eKLR where the court held;

‘’We state that when a registered proprietor’s root of title is  under challenge, it is not sufficient to dangle the instrument  of title  as proof of ownership.  It is this instrument of title that  is in challenge and the registered  proprietor  must go beyond  the instrument and prove the legality of  how he acquired  the title  and show that the  acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.’’

The Respondent had in his filed defence challenged the Appellants       title to the land parcel Bukhayo/Bugengi/5198.  Was the learned trial     Magistrate’s judgment of 30th August, 2012 against a non-party and did it relate to a subject matter that Appellants had not pleaded for ?.In the excerpt of the learned trial Magistrate judgment set out above, it is apparent the Appellants case was dismissed. The trial court’s reference  to other parcels of land like Bukhayo/Bugengi/5163, 8231 and 8232 was necessary  in the analysis of the evidence  tendered by both parties  with a view of resolving whether the land that the Respondent was in occupation of was the same one that  the Appellants claimed as theirs.  The judgment  was therefore not over any other subject matter but Bukhayo/Bugengi/5198.  The judgment was also not against PW 2  as the learned trial magistrate was only offering unsolicitated advice to the Appellants on a possible recourse.  The   foregoing  shows that there is no merit on grounds 2, 3 and 6 of the appeal.

c)      That in relation to ground 5 of the appeal, the court finds that the learned  trial Magistrate clearly captured the applicable  rule of law that the one who alleges bears the burden  of proof.  The Appellants  were the ones alleging  that the land the Respondent was in possession of was their land and that he should be injuncted from interfering  with their use.  The Appellants therefore had the duty  to offer evidence  to support their case beyond claiming that they bought it from PW 2 and that the 2nd Appellant was registered with the title. [See Shan Deshpal Wadhwa –v- Habib Abu Mohammed & 5   others [2015]eKLR and Munyu Maina –vs- Hiram  Gathiha Maina (Supra)].The learned trial Magistrate did not at all mislead herself on the party who had responsibility  to prove the material facts.The learned trial Magistrate did not  also mislead or misapprehend  the ratio decidendi applicable  in this case as alleged and grounds 4 and 5  of the appeal fails as well.

d)      That on ground 7 on who pays costs of the suit,  the applicable provision is section 27 of the Civil Procedure  Act,  Chapter 21 of Laws of Kenya. Ordinarily, costs  follow the event unless the trial court  for good reasons orders otherwise.This clearly  shows that the trial court has discretion on the issue of costs but that discretion must be exercised  judiciously. In the judgment subject matter of this appeal, the learned trial Magistrate order on the costs was as follows;

‘’  The plaintiffs shall pay only half costs of the suit to                              the defendants  as they were also  victims of                              misrepresentation by 3rd party.’’

The trial court  having dismissed  the Appellants case could have made an order of costs that follows the event.  In that case the Appellants would have been ordered  to pay the full costs but the learned trial Magistrate exercised her discretion under section 27 of the Civil Procedure  Act and ordered half the costs.The learned trial Magistrate had earlier  in her judgment expressed  her sympathy  to the Appellants and in the final party of the judgment  gave her reason for ordering half the costs to be the appreciation that the Appellants had suffered due to a 3rd party’s   action.  This court do not find any basis to interfere with the learned  trial Magistrate’s  exercise of discretion as it was properly exercised. The Appellants therefore  fails on ground  7  also.

e)      That  as the Memorandum of appeal dated 27th September, 2012 was   filed on 28th September, 2012, the appeal was filed within time.  The appeal is also not defective as alleged as the judgment  of 30th August, 2012 that is  the subject  matter of this appeal was among the documents  in the record of appeal.

f)       That the Lower court record does not contain any record of Appellants request to avail witnesses or produce documentary evidence being declined.  The Appellants withdrew their application dated 26th July, 2011 for the recalling of the Land Registrar on 26th June, 2012.  The Appellants cannot therefore blame the trial court for their failure to call the alleged two witnesses or produce any documents.The Appellants have also not moved this court under Order 42 Rule 27 of the Civil Procedure Rules to adduce further evidence in the appeal.

5.      The court therefore finds no merit in the appeal filed by the Appellants against the Respondent. The appeal is accordingly dismissed with costs and the Lower court judgment of 30th August, 2012 upheld.

It is so ordered.

S.M. KIBUNJA,

JUDGE,

DATED AND DELIVERED ON…   13th …….DAY OF JULY, 2015.

IN THE PRESENCE OF;

1ST APPELLANT………PRESENT………………………………………

2ND APPELLANT………MOSES KAMAU -  SECRETARY…………..

RESPONDENT………    ABSENT….……………………………………

COUNSEL………………MR. IPAPU FOR RESPONDENT…………..

JUDGE