Mungai & another (Suing as the officials of Athuri A Kirigu Self Help Group) v Wambugu (Civil Appeal 188 of 2019)  KEHC 2109 (KLR) (17 March 2023) (Judgment)
Neutral citation:  KEHC 2109 (KLR)
Republic of Kenya
Civil Appeal 188 of 2019
MM Kasango, J
March 17, 2023
Samuel Kamande Mungai
Suing as the officials of Athuri A Kirigu Self Help Group
Isaac Kanyari Wambugu
(Being an appeal from the judgment of the Chief Magistrate’s Court at Thika (B.J. Bartoo, RM) in Civil Case No. 147 of 2014 dated 26th April, 2018)
1.Ngaruiya Mungai And Samuel Kamande Mungai (the appellants) filed a case before the Thika Chief Magistrate’s court seeking refund of Kshs 104,000 from Isaac Kanyari Wambugu (the respondent). Their case was dismissed by the trial court’s judgment of April 26, 2018. The appellants being aggrieved by that dismissal filed this appeal. On November 21, 2019 this Court in Miscellaneous Application NO. 149 of 2018 granted the appellants leave to file this appeal out of the time provided under section 79G of the Civil Procedure Act.
2.This Court, being the first appellate court is required to reconsider the evidence adduced at trial, evaluate that evidence and draw its own conclusion: See the case of Selle and another v Associated Motor Boat Company Limited & 2 others (1968) EA 123. The Court of Appeal in the case of Peters v Sunday Post Limited (1958) EA 424 further elaborated on the jurisdiction of first appellate court thus:-
3.The appellant’s claim is that on July 20, 1999 they entered into an agreement whereby the respondent agreed to sell to them a plot No J located in Thika. Appellants pleaded that they paid the respondent the agreed purchase price of Kshs 250,000 but on making that payment, they learnt that the aforestated plot did not exist. Appellants pleaded that the respondent fraudulently received money from them by falsely pretending he would transfer the plot into their names.
4.Although the respondent filed a defence, he did not adduce any evidence at the trial. Evidence was adduced by the appellant Samuel Kamande Mungai. In that evidence, that appellant supported the pleadings.
5.Although the respondent did not adduce evidence, the trial court by its judgment determined that the appellants’ case was time barred. The trial court based its finding that the case was time barred on the written submissions of the respondent. The trial court by its judgment stated:-
6.In my humble view, the trial court erred in dismissing appellants’ case.
7.The first error I note is the trial court’s consideration of the respondent’s submission and elevating those submissions to the level of evidence. That was an obvious error and the case of Robert Ngande Kathathi v Francis Kivuva Kitonde (2020) eKLR make clear of that error thus:-
8.There being no evidence that appellants’ case was time barred, the trial court should not have ventured in that direction. Even if the respondent had pleaded the claim was time barred which in this case he did not, the trial court could not proceed to consider the pleading as evidence. This is clearly stated in the case CMC Aviation Ltd v Crusair Ltd (NO 1) (1987) KLR 103:-
9.The error is even more so because the appellants produced in evidence a document dated February 7, 2005 whereby the respondent agreed in writing to refund the appellants the purchase price of the plot by May 9, 2005. That acknowledgment of the debt by the respondent revived the appellants’ claim as provided under Section 23(3) and 24 of the Limitation of Actions Act. In this regard, I place reliance on the case of Telkom Kenya Limited v Kenya Railways Corporation (2018) eKLR viz:-
10.The trial court wrongly faulted the acknowledgment by the respondent on the basis that it did not specifically state how much the respondent acknowledge as owing the appellants. The foretasted case, which I am fully persuaded by its finding clearly shows the error of the trial court.
11.The respondent having acknowledged his indebtedness to the appellants in May, 2005, that acknowledgment validated the filing by the appellants of their case in November, 2010. The suit was filed within the period provided under Section 4 of the Limitation of Actions Act, that is before expiry of 6 years since the respondent’s said acknowledgment of the debt.
12.The trial court in my view also erred to find that the appellants had failed to prove their case on the required standard. The appellants produced receipts for total amount of Kshs 254,000. One of those receipts for Kshs 4,000 is indicated as fee for the advocate. The appellants’ evidence was that the purchase price amount was paid to an advocate for onward transmission to the respondent. It follows the appellant proved payment of that amount because their evidence was not countermanded by the respondent, that is, that they paid total of Kshs 250,000 was the purchase price. Their further evidence was that following the respondent’s written acknowledgment of the debt, the respondent paid appellants part of the debt but failed to pay them Kshs 104,000 which was the amount they claimed before the trial court. In my view, the appellants met the civil standard of proof, that is, on a balance of probability. In the case Miller v Minister of Pension (1947) ALL ER 373 the court stated on that standard of proof thus:-
13.Appellants by their evidence proved fraud. They proved they paid the purchase price for the plot but the said plot was not in existence. Having so testified, the evidential burden to prove the plot did indeed exist shifted to the respondent. The respondent did not rebut that evidence.
14.There was also no basis for the trial court to find the suits should have been supported by minutes of the self-help group.
15.From the above discussion, it is clear that there is basis of disturbing the determination of the trial court. The appeal has merit.
16.In the end, the judgment of this court is that:-a.The appeal succeeds and the judgment of the trial court is hereby set aside and in its place judgment is entered for the appellants as prayed in the plaint;b.The appellants are awarded costs of this appeal assed at Kshs 89,000/=.
JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 17TH DAY OF MARCH, 2023.MARY KASANGOJUDGECoram:Court Assistant : Mourice/JulieInstructed by Kang’iri &. Co. Advocates for appellants:- Ms. Mugo H/B Kang’iriInstructed by Ishmael & Co. Advocates for the Respondent:- Ms. Wairimu H/B KoringaJUDGMENT delivered virtually.MARY KASANGOJUDGE