Background
Vide judgement delivered on 29th March 2022 in Migori CMCCC No. 2320 of 2015 the Appellant was ordered to refund Kshs.161/20= which it deducted from the Respondent’s cane proceeds as Presumptive Income Tax when the same had been suspended by the Minister of Finance in the period between 2001-2002.
The Trial Magistrate found that although the Appellant had prepared a credit advice for the refund to the Respondent there was no evidence of the said refund.
The Trial Magistrate also found that there was no law barring the Respondent to claim refund on account of limitation of time.
The Appellant being dissatisfied with the judgement and orders of the trial court preferred an appeal before this court vide a Memorandum of Appeal dated 7th April, 2022 setting forth the following grounds of appeal;
(a). THAT the Learned Trial Magistrate erred in law and fact in reserving that suit for judgement, on the basis of what was on record, without cause and without hearing the parties, or the Appellant, on a date when the suit came up for hearing of the Notice to Show Cause why the suit should not be dismissed for want of prosecution, in violation of the Appellant’s right to fair hearing.
(b). THAT the Learned Trial Magistrate erred in law in failing to find and hold that the Respondent’s suit was statute barre, and failing to strike it out, he having failed to address and/ or determine that issue, at all, and ignored binding authorities cited.
(c). THAT the Learned Trial Magistrate erred in law and fact in entering judgement for the Respondent for the sum of KSHS. 161.20 without the Respondent leading any evidence on that amount.
(d). THAT the Learned Trial Magistrate erred in law in failing to find and hold that the Respondent’s suit was Res Judicata and failing to strike it out despite the Appellant having raised and satisfactorily argued the fact that the Respondent’s suit was Res Judicata on the basis of the evidence led at the trial.
(e). THAT the Learned Trial Magistrate erred in law and in fact when he awarded the Respondent interest on the sum of Kshs.161.20 from the date of filing the suit to the date of judgement without assigning reasons and therefore he exercised his discretion wrongly.
REASONS WHEREFORE the Appellant urged this court to grant the following ORDERS;
(a) THAT this appeal be allowed and the costs thereof be awarded to the Appellant.
(b) . THAT this court being a first appellate court does re-evaluate the evidence and arrive at its own independent findings and conclusion on the whole of the Respondent’s suit at the trial court.
(c) THAT the suit in the lower court be struck out and/ or be dismissed with costs.
(d) . THAT the court be pleased to order that any interest on a sum of money awarded as damages if any be calculated from the date of judgement if the court were to find that damages are due.
This appeal canvassed by way of written submissions. Both parties complied and filed their respective submissions.
The Appellant’s submissions are dated 13th May 2024 and it was submitted that Migori CMCCC No. 968 of 2015 from which the claim herein arose was remitted back for trial in HCCA No. 101 of 2018 and as such there was no determination on liability against the Appellant.
The Appellant submitted further that the Respondent did not tender evidence to prove the sum of Kshs. 161.20 as required by law.
Respondent does not seem to have filed submissions and this appeal will be determined based on the grounds of appeal and the evidence and judgement of the Trial Magistrate on record in the subordinate court.
Analysis and Determination
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 mind that this court did not have the opportunity to observe the witnesses testify. This position was well settled in the case of Abok James Odera T/A A.J Odera & Associates vs John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR where 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.”
In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
Having considered the grounds of appeal and submissions by the Appellant and having considered the record and judgment of the trial court it is noted that this suit was among a series in which refund for Presumptive Income Tax retained by the Appellant was sought to be refunded. As indicated in the Appellant’s submissions and as indicated in the proceedings of 4th May 2021 in the trial court Migori CMCC No. 968 of 2015 was identified as the test suit. By a ruling delivered on 19th July 2017 Hon. Wachira SRM allowed application dated 16th April seeking that CC No 968 of 2015 be made the test suit in a series of 1000 suits so as to save a lot of time for the court to determine the issue of liability against the Appellant. It would therefore be expected that the judgement in the test suit would apply to all the suits in the series save for the specific figures claimed by individual parties in respective suits. The writing and delivering of a judgement in one suit among the series separate from the test suit was erroneous and went against the intent and purpose of the ruling delivered on 19thJuly 2017 identifying the test suit and and the consent order agreeing to canvass the suits by way of written submissions.
The outcome of this suit would therefore depend on the decision made in the test suit which the Appellant submitted was remitted back to the trial court for fresh hearing to prove particulars of fraud alleged by the Respondent therein. The Respondent having failed to oppose the appeal and this court having called for the test suit in Migori CMCC No. 968 of 2015 and having failed to establish that fresh trial was conducted as ordered by the High Court in HCCA No.101 of 2018 it is the view of this court that the appeal herein has merit and is allowed. In consideration of the consent order made in the test suit in HCCA No. 101 of 2018 the files in the series herein are remitted back to the Magistrates Court for hearing and determination. Parties herein to bear their own costs.
Orders Accordingly.
Signed dated and delivered at Migori this 29th day of May, 2025.
Vide judgement delivered on 29th March 2022 in Migori CMCCC No. 2320 of 2015 the Appellant was ordered to refund Kshs.161/20= which it deducted from the Respondent’s cane proceeds as Presumptive Income Tax when the same had been suspended by the Minister of Finance in the period between 2001-2002.
The Trial Magistrate found that although the Appellant had prepared a credit advice for the refund to the Respondent there was no evidence of the said refund.
The Trial Magistrate also found that there was no law barring the Respondent to claim refund on account of limitation of time.
The Appellant being dissatisfied with the judgement and orders of the trial court preferred an appeal before this court vide a Memorandum of Appeal dated 7th April, 2022 setting forth the following grounds of appeal;
(a). THAT the Learned Trial Magistrate erred in law and fact in reserving that suit for judgement, on the basis of what was on record, without cause and without hearing the parties, or the Appellant, on a date when the suit came up for hearing of the Notice to Show Cause why the suit should not be dismissed for want of prosecution, in violation of the Appellant’s right to fair hearing.
(b). THAT the Learned Trial Magistrate erred in law in failing to find and hold that the Respondent’s suit was statute barre, and failing to strike it out, he having failed to address and/ or determine that issue, at all, and ignored binding authorities cited.
(c). THAT the Learned Trial Magistrate erred in law and fact in entering judgement for the Respondent for the sum of KSHS. 161.20 without the Respondent leading any evidence on that amount.
(d). THAT the Learned Trial Magistrate erred in law in failing to find and hold that the Respondent’s suit was Res Judicata and failing to strike it out despite the Appellant having raised and satisfactorily argued the fact that the Respondent’s suit was Res Judicata on the basis of the evidence led at the trial.
(e). THAT the Learned Trial Magistrate erred in law and in fact when he awarded the Respondent interest on the sum of Kshs.161.20 from the date of filing the suit to the date of judgement without assigning reasons and therefore he exercised his discretion wrongly.
REASONS WHEREFORE the Appellant urged this court to grant the following ORDERS;
(a) THAT this appeal be allowed and the costs thereof be awarded to the Appellant.
(b) . THAT this court being a first appellate court does re-evaluate the evidence and arrive at its own independent findings and conclusion on the whole of the Respondent’s suit at the trial court.
(c) THAT the suit in the lower court be struck out and/ or be dismissed with costs.
(d) . THAT the court be pleased to order that any interest on a sum of money awarded as damages if any be calculated from the date of judgement if the court were to find that damages are due.
This appeal canvassed by way of written submissions. Both parties complied and filed their respective submissions.
The Appellant’s submissions are dated 13th May 2024 and it was submitted that Migori CMCCC No. 968 of 2015 from which the claim herein arose was remitted back for trial in HCCA No. 101 of 2018 and as such there was no determination on liability against the Appellant.
The Appellant submitted further that the Respondent did not tender evidence to prove the sum of Kshs. 161.20 as required by law.
Respondent does not seem to have filed submissions and this appeal will be determined based on the grounds of appeal and the evidence and judgement of the Trial Magistrate on record in the subordinate court.
Analysis and Determination
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 mind that this court did not have the opportunity to observe the witnesses testify. This position was well settled in the case of Abok James Odera T/A A.J Odera & Associates vs John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR where 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.”
In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
Having considered the grounds of appeal and submissions by the Appellant and having considered the record and judgment of the trial court it is noted that this suit was among a series in which refund for Presumptive Income Tax retained by the Appellant was sought to be refunded. As indicated in the Appellant’s submissions and as indicated in the proceedings of 4th May 2021 in the trial court Migori CMCC No. 968 of 2015 was identified as the test suit. By a ruling delivered on 19th July 2017 Hon. Wachira SRM allowed application dated 16th April seeking that CC No 968 of 2015 be made the test suit in a series of 1000 suits so as to save a lot of time for the court to determine the issue of liability against the Appellant. It would therefore be expected that the judgement in the test suit would apply to all the suits in the series save for the specific figures claimed by individual parties in respective suits. The writing and delivering of a judgement in one suit among the series separate from the test suit was erroneous and went against the intent and purpose of the ruling delivered on 19thJuly 2017 identifying the test suit and and the consent order agreeing to canvass the suits by way of written submissions.
The outcome of this suit would therefore depend on the decision made in the test suit which the Appellant submitted was remitted back to the trial court for fresh hearing to prove particulars of fraud alleged by the Respondent therein. The Respondent having failed to oppose the appeal and this court having called for the test suit in Migori CMCC No. 968 of 2015 and having failed to establish that fresh trial was conducted as ordered by the High Court in HCCA No.101 of 2018 it is the view of this court that the appeal herein has merit and is allowed. In consideration of the consent order made in the test suit in HCCA No. 101 of 2018 the files in the series herein are remitted back to the Magistrates Court for hearing and determination. Parties herein to bear their own costs.
Orders Accordingly.
Signed dated and delivered at Migori this 29th day of May, 2025.