1. On the 28th day of April 2022, Hon. R.B.N. Maloba delivered a ruling on the application dated the 8th day of February 2022.
2. The appellant was aggrieved by the ruling and filed this appeal. The firm of Nancy Nyarige & Company Advocates represented him. He raised the following grounds of appeal:
a) The Learned trial magistrate misdirected herself on several matters of law and fact.
b) The learned magistrate erred in law and fact by issuing an ambiguous ruling.
c) The learned magistrate erred in law and fact by setting orders aside, reviewing and or altering the court order and conditions issued on the 4th day of November 2021 without the respondent making an application praying for and warranting such orders.
d) The learned trial magistrate erred in law in extending the time within which to comply with the court order issued on the 4th day of November 2021 when the same was not applied by the respondents, who insisted that they had complied with the conditions within the stipulated period.
e) The learned trial magistrate erred in law in condemning the appellant to pay the respondent's costs. Yet, the court found that the respondent had delayed complying with the court conditions.
f) The learned trial magistrate erred in law in holding that the appellant should bear his costs despite holding that the respondents had delayed complying with court orders and, on its motion, enlarging the time to comply.
g) The learned trial magistrate erred in law and fact in failing to note that the respondent had incurred costs in the execution process, which commenced upon warrants issued by the court on September 13, 2021, and extended to January 28, 2022. The respondent was well aware of this process but only applied on February 9, 2022, about three months, denoting bad faith on the respondent’s part.
h) The learned trial magistrate erred in law of procedure and of evidence in admitting and considering the affidavits filed by the respondent dated 28 February 2022, sworn by Michael Mulumbi Kisinga and Josiah Omwenga Otenyo, documents filed without first seeking the leave of court.
3. The respondent was served through their advocates' email address info@mmgitongaadvocates.com. They did not file any responses or submissions.
4. This Court is the first appellate court. I know my duty to evaluate the entire evidence on record, bearing in mind that I had no advantage in seeing the witnesses testify and watching their demeanour. I will be guided by the pronouncements in the case of Selle vs Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its conclusions in the matter.
5. The impugned ruling sought an order to release the attached property from the auctioneer.
6. Though the appellant has contended that the ruling of the learned trial magistrate was ambiguous, I have perused the same, and no ambiguity manifested itself.
7. It is erroneous to state that the learned trial magistrate reviewed her earlier order. This is what she said in part:
On the basis of the contestations made by the parties, it is evident that there was a breakdown in communication between them on the matter with regard to the mode of payment and delivery of the cheques. But the bottom line is that the cheques were ready for delivery on 3/12/2021. Indeed, the 1st respondent admitted that on that day, they were duly asked to inform them of how their cheque was to be delivered, but they contended that no follow-up was made with them before the delivery of the cheque on 7/12/2021. In view of this admission, I would find no proper excuse for their rejection and return of the cheque.
In any case, it is evident that the second respondent's cheque was duly accepted and encashed upon delivery; it was not rejected or returned. They cannot purport to accept one of the cheques but decline the other, yet payments in both instances stemmed from the same orders.
8. This reasoning cannot be said to be ambiguous. The learned magistrate was able to see through the mischief. Her ruling cannot be faulted.
9. I find that the appeal lacks merit, and it is dismissed. The appellant will meet their own costs since the respondents did not file any responses or submissions.
Delivered and signed at Homa Bay this 21st day of August 2024
2. The appellant was aggrieved by the ruling and filed this appeal. The firm of Nancy Nyarige & Company Advocates represented him. He raised the following grounds of appeal:
a) The Learned trial magistrate misdirected herself on several matters of law and fact.
b) The learned magistrate erred in law and fact by issuing an ambiguous ruling.
c) The learned magistrate erred in law and fact by setting orders aside, reviewing and or altering the court order and conditions issued on the 4th day of November 2021 without the respondent making an application praying for and warranting such orders.
d) The learned trial magistrate erred in law in extending the time within which to comply with the court order issued on the 4th day of November 2021 when the same was not applied by the respondents, who insisted that they had complied with the conditions within the stipulated period.
e) The learned trial magistrate erred in law in condemning the appellant to pay the respondent's costs. Yet, the court found that the respondent had delayed complying with the court conditions.
f) The learned trial magistrate erred in law in holding that the appellant should bear his costs despite holding that the respondents had delayed complying with court orders and, on its motion, enlarging the time to comply.
g) The learned trial magistrate erred in law and fact in failing to note that the respondent had incurred costs in the execution process, which commenced upon warrants issued by the court on September 13, 2021, and extended to January 28, 2022. The respondent was well aware of this process but only applied on February 9, 2022, about three months, denoting bad faith on the respondent’s part.
h) The learned trial magistrate erred in law of procedure and of evidence in admitting and considering the affidavits filed by the respondent dated 28 February 2022, sworn by Michael Mulumbi Kisinga and Josiah Omwenga Otenyo, documents filed without first seeking the leave of court.
3. The respondent was served through their advocates' email address info@mmgitongaadvocates.com. They did not file any responses or submissions.
4. This Court is the first appellate court. I know my duty to evaluate the entire evidence on record, bearing in mind that I had no advantage in seeing the witnesses testify and watching their demeanour. I will be guided by the pronouncements in the case of Selle vs Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its conclusions in the matter.
5. The impugned ruling sought an order to release the attached property from the auctioneer.
6. Though the appellant has contended that the ruling of the learned trial magistrate was ambiguous, I have perused the same, and no ambiguity manifested itself.
7. It is erroneous to state that the learned trial magistrate reviewed her earlier order. This is what she said in part:
On the basis of the contestations made by the parties, it is evident that there was a breakdown in communication between them on the matter with regard to the mode of payment and delivery of the cheques. But the bottom line is that the cheques were ready for delivery on 3/12/2021. Indeed, the 1st respondent admitted that on that day, they were duly asked to inform them of how their cheque was to be delivered, but they contended that no follow-up was made with them before the delivery of the cheque on 7/12/2021. In view of this admission, I would find no proper excuse for their rejection and return of the cheque.
In any case, it is evident that the second respondent's cheque was duly accepted and encashed upon delivery; it was not rejected or returned. They cannot purport to accept one of the cheques but decline the other, yet payments in both instances stemmed from the same orders.
8. This reasoning cannot be said to be ambiguous. The learned magistrate was able to see through the mischief. Her ruling cannot be faulted.
9. I find that the appeal lacks merit, and it is dismissed. The appellant will meet their own costs since the respondents did not file any responses or submissions.
Delivered and signed at Homa Bay this 21st day of August 2024