Whether the appellant proved his case for the refund of Kshs. 2,000,000/=
21.The suit is a claim for a refund of the agreed purchase price of Kshs. 2,000,000 purportedly paid by the appellant to the respondent pursuant to an agreement entered into by the parties herein on 08.10.2007 for the purchase of land known as Mara/Lemek/828 measuring 41.48 Ha.
22.The parties do not contest that the respondent received the deposit of Kshs. 100,000/= from the appellant. At the time the parties were entering into an agreement for sale of land there was a loan owed to agricultural finance corporation (AFC) by the respondent. It was one of the agreed terms of the contract that the appellant shall pay the said loan in part payment of the purchase price.
23.PW1- Sukhvidnir Signh Dhillon testified that he paid Kshs 85,000/= and Kshs. 507,800/= to AFC on 07.04.2008 and 25.08.2008 respectively. He produced an AFC loan receipt as P Exh2. The appellant went on to state that he paid Kshs. 1,307,000/= to the respondent where upon the respondent deposited the same in his bank account and handed over the title deed to the appellant. The appellant stated that the money was acknowledged on 06.08.2009 at 3 o’clock at advocate Sena’s office. He produced acknowledgement as P Exh 3. Further that some forms were also signed. He produced land control board forms as P Exh 5.
24.The appellant stated that he paid the respondent Kshs. 1,307,200/= whereupon they went together with the respondent to his bank to deposit and eventually the respondent deposited Kshs. 1,205,000/=. The appellant stated that he would provide the withdrawal evidence from national bank but did not provide the same.
25.DW1-Koilekel Ole Pusigishu testified that he entered into an agreement with the appellant for sale of his 50 acres piece of land at ole Sena’s office, His shamba is 105 acres. The purchase price was Kshs. 2 million. He acknowledges that the appellant paid him Kshs. 100,000/=. He also admitted that he had a loan with AFC. He claimed he was later arrested and prosecuted for failing to transfer land in a criminal case but the said case was dismissed. He claimed that the money deposited in his bank account was from his son who had sold cows.
26.DW2- Felix Itima Pusigishu testified that he is the son of the respondent.it was his testimony that he gave money to his father, the respondent to deposit the same in the bank after sale of cows. He testified that he gave his father around Kshs. 2,400,000/=.
27.Perusal of the final acknowledgement reveals that a sum of Kshs. 2,000,000 has been paid in respect of their agreement herein. It did not state how the balance of Kshs. 1,400,000 was paid. The appellant stated that the money was paid in cash by his son who had picked it from National Bank. In his evidence, he stated that he withdrew the purported money from National Bank and that he will provide evidence of withdrawal from his account at NBK. But, he did not provide any proof of withdrawal of the Kshs. 1,3007,000/=.
28.Something else; he stated that his son signed the acknowledgement note in his presence because he was carrying the money. Apparently, he did not sign it himself. This is in tandem with the evidence by the respondent that the appellant did not sign the acknowledgement but his son did. The explanation by the respondent was that the appellant did not come to the office of Sena Advocate, and that he signed the acknowledgement in the belief that Sena Advocate would remit the money to him. He was categorical that he did not receive the money as alleged. According to the respondent and his son, the money he deposited in the bank was from his son and was proceeds of sale of cows. There was however, no proof of the allegation.
29.These two versions are quite disparate and there is no clear evidence setting one of the streams apart as most reliable or believable; which makes this to be simply a case of ‘your word against mine’.
30.In such state of affairs, the sword of the law of man will draw blood from the person with the burden of proof. Nevertheless, the final judgment of the ultimate Judge- God, who has commanded, inter alia that: -Assuredly, will fall upon the person who has given false testimony.
31.Be that as it may, the acknowledgment in question was prepared by and before Sena Advocate. This was critical person to clarify the lapses in the case. The advocate was never called as a witness. Therefore, the acknowledgement did not benefit from such evidence which could have provided corroborative and probative value support.