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JudgmentELISHA DANDE GURA VS MOSES OCHIENG ONJWAYO19 min read

ELISHA DANDE GURA VS MOSES OCHIENG ONJWAYO

High Court at Migori High Court · · Anne Ong'injo


Introduction

By way of a plaint dated 1st February 2022, the Plaintiff/Respondent moved the court against the Defendant/Appellant for the following prayers;

  1. an order directed to the Defendant to compensate the plaintiff a sum of Kshs. 363, 774/= being the value of damaged property belonging to the plaintiff.
  2. Costs of this suit and interest at court rates.

The plaintiff’s claim against the Defendant is for an order directing the Defendant to compensate the Plaintiff a sum of Kshs. 363, 774/= being value of hardware property damaged by the Defendant costs and interest.

The plaintiff alleged that he operated a hardware shop on plot number Kamagambo/Kabuoro/1251 situate in Rongo town. The plaintiff avers that on or around December 2021, the Defendant without any colour of right demolished the plaintiff’s hardware thereby occasioning massive loss to the plaintiff.

The plaintiff reported the matter to Kamagambo Police Station and was issued with an OB No. 35/16/12/2021. The plaintiff conducted a valuation from a Licensed Valuer who established the extent of damage to be Kshs. 363, 774/=.

The plaintiff confronted the defendant for explanation and demanded for compensation, only to learn that the defendant was acting on malice and without any lawful order to demolish the plaintiff’s hardware.

In response to the plaint, the Defendant/appellant filed a statement of defence dated 21st February 2022. In his defence, he stated that he is the legally registered owner/proprietor of parcel number, KAMAGAMBO/KABUORO/2521 where the Hardware is situated. The Defendant states that he had previously leased the parcel to the Plaintiff/Respondent for a period of seven (7) years commencing 2013 and expiring in 2019 and which lease has since expired and the plot and the premises reverted to the Defendant.

The Defendant/appellant stated that upon expiry of the lease agreement, the Plaintiff was no longer his tenant and remains a stranger to him in his property known as KAMAGAMBO/KABUORO/2521. The Defendant denied knowledge of parcel number, KAMAGAMBO/KABUORO/1251 nor does he have any interest (s) thereof to warrant the cause of action.

The Defendant stated that upon expiry of the lease, the property reverted to him and on the 15th October, 2021, he entered into a fresh Tenancy Agreement with Lucy Achieng Onjwayo, who was running Hardware business. In case of damage caused, which he denied, it is Lucy Achieng Onjwayo his current tenant to sue for such damages not the Plaintiff/Respondent. The Hardware is run by Lucy Achieng Onjwayo situate on the Defendant’s land parcel number KAMAGAMBO/KAMWANGO/2521.

The Defendant challengd the Plaintiff’s authority or locus standi to sue for damages on behalf of his current tenant being an adult with capacity to sue or be sued. The Defendant challenged the genuineness of the alleged valuation report instead that he committed no damage to property or Hardware items.

The Defendant denied the cause of action and maintained that he is a stranger to him in so far the action arises from the Hardware situate in his plot and which is run and managed by Lucy Achieng Onjwayo, his Tenant.

The Defendant prays for judgment against the Plaintiff a declaration that;

  1. The Plaintiff not only is a stranger to the suit but also lacks the requisite authority to file and prosecute a suit on behalf of Lucy Achieng Onjwayo, the Tenant.
  2. The suit be dismissed for reasons that the Plaintiff has no cause of action to raise against the Defendant.
  3. Upon consideration of the Plaintiff’s evidenceandthe evidence of his wife PW2 and weighing the same with the evidence of the Defendant and the evidence of the Defendant’s witness the trial Magistrate found that the plaintiff had proved his case on a balance of probability and entered judgment against the Defendant in the sum of Kshs 363744/= together with costs of the suit.The matter proceeded for hearing on 17th November 2022. PW1-Moses Ochieng Onjwayo in his evidence he adopted his witness statement as evidence in chief. He relied on the documents filed which were produced as OB- Pexhibit 1 and valuation report as Pexhibit 2.
  4. On cross examination  he stated that the Defendant is his cousin and he broke into his shop and destroyed his things. He was not present but his wife confirmed to him. She is called Lucy Achieng and she was the one operating the hardware shop. The hardware situated at parcel of land belonging to Titus Kaburu. Titus is one of his witnesses. He has no agreement with the Defendant. He had an agreement in respect of the parcel number 2051. Lucy is his wife and the person that attacked is same person Lucy was operating. He is not aware of agreement between lucy and the Defendant. He sued him in another matter and he does not know why he was sued.  He has a receipt of ownership. They are not in court. He did not  produce the report. The search confirm the same. He did not have a surveyor report. He reported the case and OCS called him. He was interrogated but not charged. Police visted the scene and took photos. Valuer came after 3 weeks.
  5. PW2-Lucy Achieng in her testimony stated that she comes from Kamagambo band she is a business lady. She knows the plaintiff Moses is her husband. She knows Elisha Dave. She had filed statement and wish to adopt the same as her evidence in chief. She operates at Rongo.
  6. During cross examination, she stated that she knows Elisha Dande is her brother in law. She has no tenancy agreement with him. The signature is not hers but the ID number is hers. She operated her business at Rongo in parcel number 1251 Kamagambo/kamwangoshe knows the person that damaged. On 16th December 2021 cement and plyboard were destroyed among other goods. She did not see cement on the photos. Her husband has proocduced ownershipand she was not aware of another case. She called her husband whp reported to police station. The Valuer came the fllowing day.
  7. On 17th August 2023, DW1-Elisha Dande Gura testified that he knows the plaintiff as a his cousin and once a Tenantn between 2013 to 2019 onn Plot No. Kamagambo/Kabuoro/2521. They had a lease agreement which expired in 2019. He stated that after the lease expired he handed over the house and entered a tenancy agreement with Lucy Achieng Onjwayo who is the wife to the plaintiff/Respondent. Lucy Achieng was stil his tenant but failed to pay rent for 20 months. Payments were via Mpesa.
  8. He stated that on 8th December 2022, he informed Lucy Achieng that he wanted to use the place and agreed to remove some items. On 16th December 2022, he went with Fundis but she was not there and they started working with her consent. Moses came and complained to Lucy Achieng that the structure should not have been removed. Moses went to the police that he had demolished his structure and he and Lucy wre summoned. He stated that the structure was removed with her consent and nothing was destroyed. The Police did not charged him. The cement was in the permanent structure and there are no pictures of the damages presented and 100 bags could not fit in the structure. No receipts of items destrpoyed were presented in court. The hardware is located on his parcel of land. A survey was carried out and a report presented before court. The plaintiff/Respondent had no lease agreement with the person he claims to be the owner of the parcel of land. Moses and Lucy took him to the Tribunal and he gave her termination notice since she had defaulted in payment of rent. The case was dismissed in 2020. He sked the court to dismiss the suit with costs.
  9. During cross-examination, he stated that Moses Ochieng was once his tenant on at the suit parcel. He did several businesses. At the time of filing the suit, the suit premises was a hardware run bu Lucy Achieng. The case is not about ownership but issue for dmages and nothing was destroyed. Lucy was the Tenant and not Moses. She was respobnsible for everything on the property. He went to the tribunal fater the incident had happened.
  10. DW2-Fred Okoth Ojwang in his testimony stated that he knows the Defendant/appellant as he usually works for him. On 16th December 2022, the Defendant called him to remove a structure built at a stage. He found the place closed and the Defendant called te tenant. She opened the premises to enable them work. They continued working and in the process the plaintiff/Respondent came and ordered them to leave. They were quarelling with his wife. The Defendant/appellant was summoned by the police. The structure was a mabati structure. Lucy  Achieng gave them access to the premises. They did not vandalise the property. On cross examination, he stated that they were to remove the structure in the suit property and it was an iron sheet structure.  
  11. At the close of the defence hearing, the Trial Court upon considering the evidence adduced, delivered its judgment on 22nd February 2022 in favour of the plaintiff/Respondent awarding a compensation of Kshs. 363, 744/= being the value of the damaged property. It is the said judgment and decree which is now the subject of this appeal herein.

The Appeal

  1. The appellant being dissatisfied with the ruling and orders of the trial court preferred an appeal before this court vide a Memorandum of Appeal dated 8th March, 2024 setting forth the following grounds of appeal that;
  2. The Learned Trial Magistrate erred in law and fact when the same failed to take cognizance that the existence of the alleged hardware business was never proved so as to afford the trial court to make determination that the stock or goods therein were destroyed.
  3. The learned Trial Magistrate erred in law and fact when he made an award of special damages in favour of the Respondent whereas the same was not proved as by law required.
  4. The leaned Trial Magistrate erred in law when he relied on invalid valuation report and Photographic Electronic Evidence which violates the mandatory Provisions of the Evidence Act.
  5. The learned Trial Magistrate erred in law and fact when the same failed to comply with the mandatory requirements of Order 21 Rules 4 & 5 of the Civil Procedure Rules,
  6. The Learned trial Magistrate acted in error when the same failed to properly evaluate the evidence on record thus reaching erroneous decision.
  7. It is proposed to ask this Honourable Court for orders that;
  8. The Judgment and/or Decree of the Learned Trial Magistrate dated 22nd day of February 2024 be set aside, varied and/or quashed.
  9. The Court be pleased to dismiss the Plaintiff’s suit in its entirety.
  10. Costs of the Lower Court and that of the Appeal herein be borne by the Respondent.
  11. Any Such and/or further Orders that the Honourable Court shall deem just and expedient in the circumstance.
  12. This appeal was canvassed by way of written submissions. Both parties complied and filed their respective submissions in support and in opposition to the appeal. The appellant’s submissions dated 3rd September 2024 whereas the Respondent’s submissions are dated 24th June, 2024.

Appellant’s submissions

  1. The appellant submitted that Section 107 of the Evidence Act provides that, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. It was further submitted that Section 109 and 112 of the Evidence Act provides as follows;

109. The burden of proof as to any particular fact lies on the

person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.

112. In civil proceedings, when any fact is especially within the

knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.

  1. It was submitted by the Appellant that the Respondent did not produce any evidence of the alleged hardware business or whether the same contained the stock or goods that are claimed to have been destroyed. The Respondent ought to have produced exhibit of tenancy agreement bespeaking the premises where the business was allegedly being run or KRA records or the single business permit showing that the Respondent was licensed to operate any business. In the absence of such evidence the Trial court erred in relying on a valuation report which was not admissible in evidence to handover the Respondent the impugned judgment.
  2. The Appellant argued that the Respondent failed to produce a Certificate of Registration or a business permit to confirm that he operated the alleged hardware business and an inventory or stock purchase receipts to confirm that the goods that were actually destroyed belonged to him.
  3. On valuation report, the Appellant submitted that the valuation report produced by the Respondent was invalid as the same was prepared by an unqualified person. The author of the report did not possess a current and valid practice licence at the time of preparing the report. The report does not meet the best evidence rule as it was produced as secondary evidence and contains images that had not been authenticated as no certificate of electronic evidence was filed contrary to Section 78A and 106B of the Evidence Act.
  4. The appellant contends that the Trial Magistrate based his decision on the valuation report and in the said report there are limiting conditions to the admissibility of the documents and limiting condition 1-11 states that this report should not be published, the amounts are not accurate and suffer from defects and cannot be basis for accurate proof of the amount quoted. The limiting condition 11 specify that the report is invalid unless it is signed by a partner and bears the official company seal on all pages. The report as filed is invalid and could not be a basis of evidence in court. The Appellant also submitted that it is now settled law that special damages must not only be pleaded but must be strictly proved.
  5. The Applellant further submitted that the Trial magistrate did not set out the issues for determination as required by order 21 rule 4 of the Civil Procedure rules but instead glossed over the issues in dispute thereby arriving at a judgment that did not determine rhe issues between the parties.  The resultant judgment was not only deficient but also totally defective and hence invalid thereby leading to a miscarriage of justice.
  6. The Appellant asked this Honourable court to allow the appeal and the suit before the magistrate court be dismissed and the Respondent bear the costs in the trial court and in this court.

Respondent’s submissions

  1. In response to the Appellant’s submissions, the Respondent submitted that the hardware was situated in his plot number Kamagambo/Kabuoro/2521 and he had the authority to demolish any structure. The Respondent contended that the Appellant is coming up with new issues that were not subject of the trial in the subordinate court. The Respondent in his plaint stated that the hardware was his and his evidence was corroborated by his witness. The Appellant admitted that only disputed ownership of the plot where the hardware was located but never disputed ownership of the hardware and only insisted that the hardware was in his plot. The Appellant never objected as to ownership of the hardware. Further, in his defence stated that the Respondent was his tenant and that he defaulted in paying rent and decided to evict him from the premises.
  2. The Respondent submitted that the Appellant challenged the validity of the valuation report produced as exhibit in the trial court. The Appellant’s advocate never objected to production of the valuation report neither did she challenge the report and the same cannot be challenged at this juncture hence the trial court cannot be vilified on such ground.
  3. As to whether the appeal is merited, the Respondent submitted that the claim before the Trial court was for compensation of his damaged items in the hardware occasioned by the Appellant and not ownership of the Appellant’s plot. The fact that the hardware was situate on the Appellant’s parcel of land did not permit him to destroy the same. Such could only be sanctioned by a valid court order of eviction which the Appellant never produced. The Respondent submitted that the appeal is not merited and the same should be dismissed with costs to the Respondent.

Analysis and Determination

  1. I have considered the record of appeal as well as the cited grounds of appeal together with the rival submissions. I find the following issues condensing for determination: -
  2. Whether the Respondent proved his case against the appellant on a balance of probability?
  3. Whether the prayer for special damages was proved?
  4. Whether the evidence adduced complied with the provisions of the Evidence Act?
  5. Whether the Trial court judgment complied with Order 21 rule 4 of the Civil Procedure Rules?
  6. This being a first appeal, this court has an obligation to re-evaluate, re-analyse and re-assess the evidence adduced before the Trial court and come up with its own inference bearing in maind that this court did not have the opportunity to observe the witnesses testify. This is position enumerated in the case of Abok James Odera T/A A.J Odera & Associates vs John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR the Court of appeal held as follows;

“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

  1. On the first issue of whether the Respondent proved his case against the appellant on a balance of probability, It is trite law that whoever alleges must prove. This law is provided under Sectio 107 of the Evidence Act. It provides as follows;
  2. Whoever desires any court to give judgment as to any legal
    right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist.
  3. When a person is bound to prove the existence of any fact it is
    said that the burden of proof lies on that person.
  4. Further, Section 109 of the Act provides that;

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.”

  1. The duty to prove that hardware property was damaged lay on the Respondent before the Trial court. In the case of Mbuthia Macharia vs Annah Mutua & Another [2017] eKLR the Court stated that;

“The legal burden is discharged by way of evidence, with
the opposing party having a corresponding duty of
adducing evidence in rebuttal. This constitutes evidential
burden. Therefore, while both the legal and evidential
burdens initially rested upon the appellant, the evidential
burden may shift in the course of trial, depending on the
evidence adduced.”

  1. The Respondent alleged that the Appellant destroyed his hardware property worth Kshs. 363, 774/=. The Respondent reported the matter to the police ad was issued with OB No. 35/16/12/2021. On the other hand the Appellant submitted that the Respondent did not produce evidence of the existence of the allged hardware business or whether the same contained stock or goods that are claimed to have been destroyed. DW1-Elisha Dande Gura, the Appellant herein testified that the structure was removed with the consent of Lucy Achieng his tenant and nothing was destroyed. The cement was in the permanent structure and there are no pictures of the damages presented and 100 bags could not fit in the structure. The Respondent did not provide receipts of items destroyed. This evidence was corroborated by DW2- Fred Okoth Ojwang who testified that the Plaintiff  was summoned by the police. The structure was a mabati structure Lucy  Achieng gave them access to the premises and they did not vandalise the property.
  2. The RespondentAin his evidence stated that he operates a hardware on plot No. Kamagambo/Kabuoro/1251. That the Appellant invaded and demolished it thereby destroying property including 100 bags of Rai cement, 35 round polls, 20 cedar posts, 30 pieces of mbao, 1 steel door, 5 plaint boards, 3 T-ply all valued at Kshs. 363, 774/=.
  3. I have perused the record of the trial court and noted several discrepancies in the Respondents evidence. The Appellant stated that his plot number is Kamagambo/Kabuoro/2521 and evidenced in the attached title deed whereas the Respondent stated that his hardware business is situated on Plot No. Kamagambo/Kabuoro/1251. The Appellants sentiments are supported by the two lease agreements between the Appellant and the Respondent dated 6th June 2014 and another one between the Appellant and Lucy Acheing Onjwayo dated 15th October 2021. Again, the Respondent pleaded that several items were destroyed but failed to attach even a single photo of the bags of cement and the other items alleged tohave been destroyed.
  4. Having said so, it is my considered view that the Respondent failed to discharge the burden of proof as required under the law.
  5. On whether the prayer for special damages was proved, it has been said over and again that special damages must be pleaded and specifically proved. This was the position held by the Court of appeal in Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd (2013) eKLR, where it stated as follows,

“A claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity but we must add that, that degree and certainty must necessarily depend on the circumstances and the nature of the act complained of…”

  1. It is thus clear that any party seeking special damages must specifically prove the same. In this instant case, the the Respondent did not avail even a single receipt of the items alleged to have been destroyed in support of his case. In the absence of such receipts, this court has no option but to make a finding in favour of the Appellant.
  2. In regards to the issue of whether the evidence adduced complied with the provisions of the Evidence Act, Section 78A (4) of the Evidence Act provides that;

“Electronic and digital evidence generated by a person in the ordinary course of business, or a copy or printout of or an extract from the electronic and digital evidence certified to be correct by a person in the service of such person, is on its mere production, in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or common law admissible in evidence against any person and rebuttable proof of the facts contained in such record,  copy, printout or extract.”

  1. The Appellant submitted that the Respondent the valuation report contains images that had not been authenticated as no certificate of production of electronic evidence to confirm the validity was filed.  I am satisfied that the evidence attached to the report is electroonic in nature and within the description of the Act and a certificate of production ought to have been filed. In the absence of such certificate, the Respondent failed to prove his case before the Trial court.
  2. On whether the Trial court judgment complied with Order 21 rule 4 of the Civil Procedure Rules 2010, the said provision provides that;

“Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.

  1. This court relies in the case of South Nyanza Sugar Co. Ltd vs Omwando Omwando (2011) eKLR, where Makhandia J, (as he then was) observed as follows;

“Ordinarily and in law a judgment should deal with issues raised and should not be scanty. A judgment must comply with the mandatory provisions of order 21 rule 4 of the Civil Procedure Rules which provide that a judgment in a defended suit shall contain a concise statement of the case, points for determination, the decision thereon and reasons for such decision. In the circumstances of this case, it cannot be said from the extract of the judgment I have set out above the trial magistrate complied with this mandatory provisions of the law. The trial magistrate by not setting out points for determination and reasons for his decision contrary to the aforesaid provisions of the law abdicated his judicial responsibility. As a judicial officer he was under a duty to state in writing the reasons which made him arrive at a particular decision on liability and the apportionment thereof. It could not have been done in vacuo. Any judgment that does not contain the aforesaid essential ingredients is not a judgment and an appellate court will frown at such a judgment and indeed impugn it as I hereby do.”

  1. Therefore, a judgment should contain statement of the case, the points for determination, the decision thereon, and the reasons for such decision.  I have perused the trial court judgment and do agree with the Appellant that the judgment is not compliant with the provisions of Order 21 rule 4 of the Civil Procedure Rules 2010. The trial court judgment does not show with precision the points for determination and the reasons for such decision.
  2. In conclusion, it is my finding that this appeal is merited and it is hereby allowed.  The Judgment and/or Decree of the trial court  delivered on 22nd February 2024 is hereby set aside and substituted with an order dismissing the suit. The Appellant shall have costs of this appeal.
  3. It is so ordered.

Signed dated and delivered at Migori this 13th  day of  February, 2025.

    ELISHA DANDE GURA VS MOSES OCHIENG ONJWAYO ELISHA DANDE GURA VS MOSES OCHIENG ONJWAYO