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|Case Number:||Civil Appeal 30 of 2006|
|Parties:||Peter Kimani Wairagu v Jonathan A.O. Wabala|
|Date Delivered:||20 Nov 2013|
|Court:||High Court at Busia|
|Citation:||Peter Kimani Wairagu v Jonathan A.O. Wabala  eKLR|
|Case Outcome:||Appeal dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CIVIL APPEAL NO.30 OF 2006
PETER KIMANI WAIRAGU ……………………………………APPELLANT
JONATHAN A.O. WABALA …………………………………..RESPONDENT
J U D G M E N T
“REPUBLIC OF KENYA
A G R E E M E N T
BETWEEN: JONATHAN A.O. WABALA ID.NO.2054300/65 – LANDLORD
AND: PETER KIMANI WAIRAGU IDNO. – TENANT
An Agreement to settle a defaulted pay of rent has been entered this 26th day of November, 1996 between JONATHAN A.O. WABALA herein referred to as the Landlord and PETER KIMANI WIRAGU herein referred to as the tenant. The tenant rented the premise of the Landlord on 30th day of September, 1993 and vacated November, 1996 without paying any rent, which mounted to kshs.160,500/= (one hundred and sixty thousand five hundred only).
WHEREBY THEY HAVE AGREED AS FOLLOWS:
1. THAT from 1st day of January, 1997 the tenant shall be paying ksh.7,500/= (Seven thousand five hundred only) until the ksh.160,500/= is cleared.
2. THAT the tenant to meet the repair charges.
3. THAT the tenant has also rented a kiosk from the land lord at kshs.1,500/= per month with effect from 1st day of December, 1996.
4. THAT both the landlord and the tenant have today signed this agreement without force to any of the parties.
SIGNED ON THIS 26TH DAY OF NOVEMBER 1996) ……………………………………………………
IN THE PRESENCE OF: ) JONATHAN A.O. WABALA-LANDLORD
MAGISTATE/COMMISISONER FOR OATHS ) PETER KIMANI WAIRAGU – TENANT”
“I know Exhibit I signed it when he called me to Court. When the agreement was read to my children I was told I had been evicted. I signed the agreement not know (sic) exactly what it was when I got the receipts I found that I had over paid by ksh.89,805/=.”
“After considering the total evidence by the plaintiff and the defence I do find that the plaintiff on a balance of probability has proved his claim and judgment will be entere(sic) in his favour for ksh.124,000/= plus costs and interest. On the other hand the counter-claim relates to periods before 26/11/06 and the same has not been specifically proved hence the sa e(sic) dismissed with costs.”
“1. THAT the Learned trial magistrate erred in law and fact in entering judgment in favor of the Respondent as prayed in the plaint and dismissing the Appellant’s Counter claim when the Respondent had failed to prove his case on a balance of probability and the Appellant had on the other hand proved his counter claim on a balance of probability.
2. THAT the Learned trial Magistrate erred in law and fact in making a finding that the agreement made on 26.11.1996 was valid for having been made before a competent court when no evidence was led to show that indeed the said agreement was made before a competent court.
3. THAT the Learned trial Magistrate erred in law and fact in making a finding based on an alleged agreement made on 26.11.1996 when the evidence on record contradicted the alleged terms of the said alleged agreement.
4. THAT the Learned trial Magistrate erred in law and fact in making a finding that the Respondent had proved his case on a balance of probability when the Respondent had admitted under cross-examination that he had received rent for the years 1994 and 1995 which vitiated the terms of the alleged agreement made on 26.11.1996 showing that the Appellant owed the Respondent kshs.160,000/= for the period 30.9.1993 and Nov 1996.
5. THAT the Learned trial magistrate erred in law and fact in making a finding that the Respondent was owed kshs.124,000/= in rent arrears when the Respondent had failed to prove on a balance of probability that the agreed monthly rent was ksh.7500/= in respect of the shop space and kshs.1500/= in respect of the kiosk.
6. THAT the Learned trial Magistrate erred in law and fact in rejecting the evidence of the Appellant challenging the Respondent’s claim of kshs.124,000/= and supporting his counter claim for kshs.99,500/= against the weight of the evidence on record.
7. THAT the Learned trial Magistrate erred in law and fact in not giving or taking directions regarding the issue of whether or not the trial ought to have started afresh upon taking over from the previous Magistrate.
8. THAT the 1st trial Magistrate erred in law and fact in continuing to her the case and take the evidence of PW1 without disqualifying herself given that her purported signature was not on the alleged Agreement made on 26.11.1996.”
“10.(1) Where a judge is prevented by death, transfer or other cause from concluding the 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 may proceed with the suit or application from the stage at which his predecessor left it.
(2) The provisions of subrule (1) shall, so far as they are applicable, be deemed to apply to evidence taken in a suit transferred under section 18 of the Act.”
Although the provisions refer to a Judge they would be applicable to a Magistrate as well because section 2 of The Civil procedure Act defines a Judge to mean “the Presiding Officer of a Court.” There is no requirement that a partheard matter must start afresh. The Court record of 23/6/05 shows as follows:-
Coram: E.H. Keago RM
Court clerk – Joshua
Wanga & co. adv./Omondi for the plaintiff present
Onsongo & co. adv. for the defendant present
Mr. Omondi for the plaintiff
Mr. Onsongo for the defendant
Mr. Omondi – we pray that the defence case be closed
Im sorry I am late but I am ready to proceed with the defence case.
Matter to proceed for defence hearing.”
The Appellant who was represented chose to proceed with his Defence case before the new officer and the Learned Magistrate gave those directions.
“The tenant rented the premise of the Landlord on 30th day September 1993 and vacated November 1996 without paying any rent, which mounted (sic) to ksh.160,500/= (one hundred and sixty thousand five hundred only).”
The evidence on record does suggest that this statement is not an accurate statement of fact. This is because the tenant produced receipts showing that he had paid some rent in the period preceding the agreement. The Landlord himself said this in cross- examination,
“In 1994, I received all rent. In 1995 I also received the money.”
Indeed the Trial Court held
“Although the Defendant had produced receipts which tends to show that he had overpaid by ksh.99,500/= the same are negotiated by P Exh 7 as some of the receipts date back (sic) to a period before the agreement was drawn.”
“4. In the alternative but entirely without prejudice to the foregoing if the Defendant was a tenant and an agreement was made, but which is denied the Defendant avers that all the monies due were paid in toto and the agreement is void ab initio by misrepresentation.”
Is misrepresentation adequately pleaded?
“I know Exhibit 1 signed it when he called me to Court. When the agreement was read to my children I was told I had been evicted. I signed the agreement not knowing exactly what it was when I got the receipts I found that I had over paid him by ksh.98,500/=.” (my emphasis)
What the witness was telling Court is that he signed the agreement in ignorance of the fact that he had made some payments. If that were so then the Agreement was entered into on account of a mistake. But what was pleaded was misrepresentation and not mistake. On misrepresentation, there is no evidence that the Landlord indeed misrepresented certain facts to the Tenant.
“i. Collecting money from the Defendant’s children without informing the Defendant.
ii. Demanding and ensuring that the same amount is re-paid by the Defendant.
iii. Misrepresenting the facts in the agreement.
iv. Making himself over-paid.”
DATED, SIGNED AND DELIVERED AT BUSIA THIS 13TH DAY OF NOVEMBER 2013.
J U D G E
IN THE PRESENCE OF:-
………………………. ……………………………………COURT CLERK