(Being an appellant against the entire judgement of Hon. B.J Ofisi (SRM and Adjudicator) in Milimani SCC Com E5914 of 2022 delivered on 10th February, 2023)
JUDGEMENT
INTRODUCTION.
1.The appeal came up for hearing on the 5th of June 2024 when counsel for the appellant MR WAWERU indicated to the court that notice of the hearing of the appeal had been served or issued to both parties.
2.At the hearing of the appeal, the respondent was not represented by Advocate and did not attend in person. Counsel for the appellant pressed for judgement date even though according to him, the reason the respondents were absent was because the appeal was about a money decree and according to him, since the respondents had already executed the decree, they were not keen on the appeal.
3.MR. Waweru advocate urged the court to proceed and deliver judgement in the matter. According to the appellant it was immaterial that execution had already been effected. Indeed counsel intimated to the court that should they succeed in this appeal they would proceed to recover the decretal amount.
4.Counsel sought to rely on the record of appeal and the written submissions that he had filed dated 10th April 2024.
5.Following the representation by counsel for the appellant, I scrutinized the record and noted the following;
a)Judgement giving rise to this appeal was delivered on the 10th February 2023 and a certified copy of the same duly issued on the 18th April 2023
b)A certificate of costs was issued on the 11th May 2023
c)Warrants of sale of movable property were issued on the 17th July 2023
d)The memorandum of Appeal is dated the 10th February 2023
e)The Appeal was admitted on the 27th September 2023
f)Directions in the matter were issued by HON. MAJANJA, J on 26th September 2023 directing that the appeal be disposed off by way of written submissions
h)The matter was mentioned before the Deputy Registrar on the 5th October 2023 virtually. None of the parties to the appeal appeared
.i)The matter was put off to the 15th November 2023
- It is not clear why the matter was then brought up next in court on 16th November 2023 as opposed to the 15th November 2023 as earlier ordered. On the said date none of the parties appeared and the matter was rescheduled to the 12 March 2024.
6.On the 12th March 2024 before the Deputy Registrar, the parties did not appear.
On that day the Deputy Registrar granted the parties, in absentia, the last chance to file and serve written submissions of appeal within 7 days.
7.The Deputy Registrar issued directions that the Registry issues a notice to the parties
8.On record is a notice showing that on 28th May 2024, HON. E.O WAMBO DR directed that the matter be mentioned on 3rd June 2024 before him to confirm compliance with directions of the court in regard to RRI
9.On 29th May 2024 at 18:09 an email was sent to the parties through the email addresses on record. I have noted the email addresses are the ones captured on the record of appeal.
ANALYSIS AND DETERMINATION.
10.The history of the matter was important to record so as to enable the court make a determination as to whether proceeding to hear the matter in the absence of the respondent was likely to prejudice their position. I am however satisfied that there is no such risk and therefore I proceed to determine the matter on its merits.
11.The appellant in his submissions states that it is an uncontested fact that the appellant was tasked by the mother Margaret Waringa Kamau to sell on her behalf her property known as Dagorretti/Thogoto/ 2901. An agreement for sale was prepared between one Douglas Njogu Maina and Margaret Waringa Kamau. The terms of that agreement could only bind the signatories of the agreement and not the parties to this appeal.
12.The cause of action in this matter arises from a friendly loan between the appellant and the respondent. The respondent advanced money to the appellant at her instance for purposes of payment of school fees. I have perused the record and noted that the respondent exhibited documents to prove the claim for Ksh 300,000/=.
13.The documents included Mpesa messages, statements, Bank receipts and a demand letter. Notably, there was no response to the demand letter issued by JGS Law LLP dated 30th September 2022. The learned Hon. Magistrate upon hearing the parties entered judgement in favor of the respondent for the sum of KSH 300,000 plus interest at court rates from the date of filling the suits until payment in full.
14.The evidence on record supported the claim thus it Is my finding that the learned HON. Magistrate arrived at the correct finding in both fact and law. I do not find any reason to interfere with her decision. The small claims courts were established in order to assist in the quick resolution of disputes that are not otherwise complex.
15.The simplicity in the procedure adopted in the resolution of such disputes is in keeping with the provisions of Article 159 of the constitution that requires that justice should be done to all without undue regard to procedural technicalities and that justice should not be delayed.
16.It is therefore not right to suggest that the learned Honourable Magistrate handled the matter casually.
17.The appellant in his submissions at paragraph 22 states:-
“moneys were paid on the basis of the sale agreement dated 30th July 2021 and not a loan agreement that did not exist in the first place”.
18.The submission leaves no doubt that money was indeed paid to the appellant and all that the appellant contests is the genesis for the payment. I take the view that this is an admission by the appellant that she received money from the respondent.
19.It is rather intriguing that the appellant insists on the sale agreement yet there was no privity of contract in that sale agreement between the appellant and the respondent. Similarly, I find no evidence that there was assignment of that contract by any of the signatories to the sale agreement to either the appellant or the respondent to enable her exercise any right to sue or be sued under the Agreement. The respondent must be allowed to continue enjoying the fruits of the judgment. The sum of Ksh. 300,000 having been proved to have been advanced to the appellant, the Honourable magistrate cannot be faulted in the circumstances.
20.The up-shot of the above is that the appellants’ appeal has no merit and is hereby dismissed with no order as to cost since the matter was undefended.
21.It is so ordered.