Analysis and determination
9.As a first appellate court, this court’s role is to subject the whole of the evidence to a fresh and exhaustive scrutiny and make its own conclusions about it, bearing in mind that it did not have the opportunity to see and hear the witnesses first-hand. This duty was well stated in Selle & Another v Associated Motor Boat Co. Ltd. & Others (1968) EA 123 in the following terms:
10.Emmanuel Situma Sikanga (Pw1) testified that he sold to the appellant 6 acres of land for Kshs 360,000/- and was paid Kshs 195,000/-. He was later paid Kshs. 7,000/- but he is yet to receive the balance of Kshs 158,000/-. He testified that he is yet to receive money from the 3rd defendant. On cross-examination, he testified that on 22/2/2003 he was given money by the appellant in the presence of the 3rd respondent. He could not tell what the Kshs 53,000/- paid by the appellant to the 3rd defendant was for and he neither knew what the Kshs 249,000/- was for.
11.Kingsley Mutali Sekapchanga (Dw1) testified that he entered into an agreement with the 1st and 2nd respondents for the purchase of 6 acres of land and upon execution Kshs 195,000/- was paid. He deposited money to the 3rd respondent as part payment, on 17/2/2003. The 3rd respondent was acting for the 1st and 2nd respondents and that the title of the land was being held as surety in court. Dw1 later made two deposits of Kshs 25,400/- on 27/2/2003 and later on Kshs 298,000/-. Kshs 90,000/- was paid to Mary Naliaka, a sister to the 1st and 2nd respondent. Dw1 testified that he deposited money to the 3rd respondent’s account which monies were to be remitted to the 2nd respondent. On cross-examination, he testified that he had a client-advocate relationship with the 3rd respondent. He maintained that he paid professional fees but did not have proof of payment.
12.I have considered the submissions and the evidence on record. It is not in dispute that the 1st and 2nd respondents were paid Kshs 195,000/- upon execution of the contract and further Kshs 7,000/- on 2/1/2005. The only dispute relates to the payment of the balance of the purchase price being Kshs. 158,000/-.
13.There was no evidence that the balance of Kshs 158,000/- was paid to the 1st and 2nd respondents. The appellant testified that he deposited money with the 3rd respondent for onward transmission of the same to the 1st and 2nd respondents.
14.The 3rd respondent acted for the appellant, 1st and 2nd respondent. Pw1 testified that the title to the land was in the custody of the court and was released after the appellant and the 3rd respondent posted cash bail. Dexh1 revealed that the appellant paid Kshs 53,000/- through the 3rd respondent on 17/2/2003. Dw1 also testified that there existed a client-advocate relationship with the 3rd respondent. At the time of execution of the sale agreement, the appellant had paid Kshs 195,000/- leaving a balance of Kshs 165,000/-.
15.Dw1 produced Dexh 1, 2 and 3 all showing that he deposited money with the 3rd respondent. Immediately after the parties signed the agreement, the appellant deposited Kshs 25,400 on 27/2/2003 into the 3rd respondent’s account and later on 5/03/2003, he further deposited Kshs 248,000/-. He explained that Kshs 25,000/- was for the survey costs. This therefore left the 3rd respondent with a balance of Kshs 248,000/- and according to Dw1, the 3rd respondent was to remit the balance of the purchase price to the 1st and 2nd respondents.
16.The 3rd respondent filed its statement of defence but did not present any evidence to challenge the evidence of the appellant. The evidence of the appellant therefore remained uncontroverted. After a comprehensive examination of the evidence, I find that the 3rd respondent (third party) failed to transfer the funds that the appellant had deposited into its account to the 1st and 2nd respondent. In my view, the sole responsibility for settling the remaining balance of the purchase price, amounting to Kshs 158,000/-, should rest squarely on the shoulders of the 3rd respondent who was the advocate for the vendors. In any case, the 3rd Respondent (Third Party) confirmed in its statement of defence and evidence that it had acted for the vendors in the transaction. As the appellant had successfully enjoined the law firm as a third party and having proved that he duly deposited the sums in question with the third party, it was thus erroneous for the learned trial magistrate to hold that the sums had been paid in respect of legal fees. Consequently, I find the decision arrived at was erroneous and must be interfered with.
17.In the result, I find merit in the appeal. The same is allowed. The judgement of the trial court dated 25/4/2016 is hereby set aside and in its place, judgment is entered for 1st and 2nd respondents against the 3rd respondent (third party) in the sum of Kshs 158,000/-at 14%P.a from the date of default. The appellant shall have costs of the appeal as against the 3rd respondent while the 1st and 2nd Respondents will have costs in the lower court to be borne by the 3rd Respondent (Third Party).Orders accordingly