Kamunyi v Wachira [2022] KEHC 13774 (KLR)

Kamunyi v Wachira (Civil Appeal 55 of 2018) [2022] KEHC 13774 (KLR) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13774 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 55 of 2018

RM Mwongo, J

October 11, 2022

Between

Jackan Muchiri Kamunyi

Appellant

and

James Ndwiga Wachira

Respondent

(Being an appeal against the Judgment of Hon G.K. Odhiambo dated 24th August, 2018 in Gichugu PMCC No. 61 of 2017)

Judgment

Background 1. The Appellant and Respondent entered into a simple one-page contract dated 14. 11. 2013 for a friendly loan. The agreement provided that the Respondent would be advanced Kshs. 100,000/= for purposes of paying legal fees in respect of a case concerning L.R No. Ngariama/Kabare/73 comprising 4. 7 Acres (the Land).

2. At Clause 2 of the Agreement, the parties agreed that should the Borrower, that is the Respondent, succeed in the case he would sell 1. 0 acres of the said Land to the lender, the Appellant. The sale price for the acre would be Kshs. 650,000/=. The balance of Kshs. 550,000/= would be paid once the consent of the Land Control Board to transfer the said one acre from the Land would be granted.

3. Clause 3 of the Agreement provided that should the Borrower (Respondent) not succeed in the case, he should refund the loan amount advanced with no interest. The parties agreed the contract, which was witnessed by four witnesses. It was drawn by Maina Kagio & Co. Advocates.

4. In his pleadings in the lower court, the Plaintiff /Appellant alleged that the Respondent had been in breach of the agreement and had failed or neglected to make good on the agreement. He claimed a refund of Kshs.100,000/= with interest.

5. The Defendant/Respondent filed a defence in which he admitted existence of the Agreement, but denied that the Succession Cause No. 97/1992 Kerugoya, had been successfully concluded. He asserted that the losing party in the case had filed an appeal, viz, HCCA No. 263/2013 which was still pending, and therefore that there was no cause of action for the Plaintiff.

6. Upon hearing the evidence of Plaintiff/Appellant who was the sole witness in the suit, the trial court found that there had been no proof that the case upon which the claim had been founded, had been concluded. The trial magistrate therefore dismissed the suit with no order as to costs.

7. The Appellant herein has raised four grounds of appeal as follows: -1. That the Learned Magistrate erred in law and fact by holding that the Appellant had failed to prove his case against the Respondent which finding was against the weight of evidence adduced by the appellant.2. That the Learned Magistrate erred in law and fact by not finding that the parties agreement dated 14. 11. 2013 over sale of Land Parcel No. Ngariama/Kabare/73 and that the appellant was entitled to the relief sought in the Plaint.3. That the Learned Magistrate erred in law and fact in holding that the Appellant’s suit was premature in view of existence of Kerugoya High Court Civil Appeal No. 263 of 2013 and other law suits involving same subject matter which holding was against the evidence tendered in court and also on the fact that no admissible evidence was tendered to prove and support such a finding.4. That the Learned Magistrate erred in law and fact by dismissing the Appellant’s suit without sufficient reasons in view of the fact that the respondent failed to tender any evidence to challenge or rebut the evidence tendered by the appellant.

8. The role of this court is to consider all the evidence adduced and placed on the record and to re-evaluate it, and to come to its own conclusions.

9. I have carefully perused the record. The plaintiff/appellant’s testimony in court was as follows:“……I’m the plaintiff in this suit. The defendant promised he would sell me the land I gave him 100,000,000/= for the land. It’s parcel No. Ngariama/Kabare/73. We had an agreement dated 14. 11. 2013. The land had a court case. I don’t know the parties of the case. I recorded my statement. It’s dated 22. 11. 2017”. (Emphasis added).

10. The appellant then produced his documentary evidence which was adopted by the court. In his witness statement filed with the plaint, he reiterated the provisions of the Agreement. At paragraph 4 he stated:“That since year 2013, the Defendant has been very elusive which prompted me to seek refund of my money”. (Emphasis added).

11. I have also carefully perused the judgment of the learned trial magistrate, Hon. G. Odhiambo. He noted that the issues arising for determination were:a.Whether there was an agreement between the plaintiff and the defendant.b.What were the terms of the said agreement.c.Whether the plaintiff is entitled to the prayers sought.

12. The learned magistrate then held that for the plaintiff to succeed he must show on balance of probability that the defendant breached the terms of the agreement. He found that the plaintiff had not discharged the legal burden under Sections 107 and 108 of the Evidence Act of proving that the defendant had breached any of the terms of the Agreement; and that he had not adduced any evidence that demonstrated the position of the land case.

13. I see no basis for criticizing the trial court’s conclusions. It is clear as day that the appellant in his witness statement, did not point out the status of the land case. Nor did he do so in the plaint itself.

14. The plaintiff/appellant made matters worse in his oral testimony, which was not even cross-examined, when he casually stated:“I don’t know the position of the case”. (Emphasis added).

15. The crux of the Agreement was founded on the case being won or lost. There was no evidence of either. The defence position was the there had been an appeal by the dissatisfied party, hence the case had not been concluded.

16. The critical provisions of the Agreement are on Clauses 2 and 3 viz;“Should the Borrower succeed in the case” and“Should the Borrower not succeed in the case “These are the Clauses that “trigger” either the sale of one acre of the land to the appellant or the refund of Kshs. 100,000/= to the appellant.

17. Given that there was no evidence of the “trigger”, any action upon or subsequent to the two Clauses is premature. I therefore agree with the judgment of the learned trial magistrate and see nothing to criticize therein.

18. In light of the foregoing, the Appellant’s appeal is hereby dismissed in its entirety with costs.Orders accordingly.

DELIVERED AT KERUGOYA ON THIS 11TH DAY OF OCTOBER 2022R MWONGOJUDGEIn the presence of:1. Kahiga for Applicant2. Chomba for the Respondent3. Court Assistant - Murage