Lucky Kai v Daniela Tosetto

3. The Respondent maintained that the Appellant (Appellant herein) represented that he had found a suitable beach plot and she was led to release funds to the tune of Kshs. 967,913.52. The Respondent intimated that she later discovered that the said plot was situated in Dabaso, far away from the beaches, contrary to the arrangement they had. According to the Respondent, the Appellant led her to believe that the beach plot had been purchased and requested the Respondent to send him Kshs. 4,000,000 for the construction of the beach house on the allegedly purchased plot. 4. The Respondent maintained that she sent the Appellant the sum of Kshs. 4,500,000 for both the purchase and construction. She maintained that the Appellant fraudulently undertook the purchase in his name. Further, she faulted the Appellant for duping her into believing that the cost was Kshs 4 million, whereas the actual construction, from her estimation, was about Kshs 2 million. She also faulted the Appellant for purchasing a property valued at Kshs. 350,000 despite receiving Kshs. 7,600 Euros - approximately Kshs. 967,913.52 at the time. 5. She averred that she visited Kenya in October or November 2022 to monitor the progress of the purchase of the plot and the construction of her family holiday home; that she raised queries regarding the quality of the property compared to the funds which she shared, but was ejected from the property by the Appellant. It is her case that she was forced to take up alternative accommodation at the cost of 1,300 Euros; that she thereafter reported the matter to the Watamu Police Station, but no assistance was provided. She alleges that the Appellant shared embarrassing texts and photos of the Respondent to her children, friends and colleagues at work, whose contacts he mischievously obtained from the Respondent’s phone. She claimed that this was intended to prevent her from seeking redress against MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 2 of 18

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him. Additionally, she alleged that the Appellant trespassed into the said property and maliciously damaged the perimeter wall. 6. The Respondent sought the following reliefs: a. A refund of the money paid on account of the plot and house construction; b. A declaration that the suit property purchased and developed under the Appellant’s name and using the Respondent’s money belongs to the Respondent and an order is made in the alternative, directing unconditional surrender of the premises and the documents of title and/or ownership thereof to the Respondent, who is the rightful owner thereof; c. A refund of additional costs in the sum of Kshs. 300,000; and d. A declaration that the Appellant conducted himself in a fraudulent manner and cannot live on the proceeds of his deception, which he must surrender to the Respondent; and e. General Damages for breach of trust and exemplary damages for fraudulent misrepresentation; f. Punitive damages for fraud; g. An order of permanent injunction do issue directed at the Appellant, his servants, representatives and agents preventing them from interfering with the Respondent’s rights of ownership or enjoyment of the suit property; h. An order be issued by the Court directing the Appellant, himself, his agents, servant, proxies, and representatives to give vacant possession of the suit property otherwise the court bailiff to proceed and evict them; i. That the Appellant be compelled by an order of this court to restore the perimeter wall back to its normal state prior to its unlawful demolition; j. That the Officer Commanding Station (OCS) Watamu Police Station and or his nominee to ensure that the orders are complied with; k. Any order or relief as this Honourable Court may deem fit and just to grant. The Appellant’s Case in The Trial Court 7. The Appellant entered an appearance and filed a Statement of Defense and Counterclaim dated 25th January 2023 denying the Respondent’s Page 3 of 18 MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26

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claim. He argued that they met on or about 12th February 2020 and a love affair developed between them, leading to their cohabitation whenever she visited the country. He contended that the Respondent sent him the sum of Kshs 350,000 to purchase the suit property for himself as his boyfriend while she was away in Italy; that this came after the Respondent requested him to negotiate the purchase price of the suit property; that he purchased the property in his name and shared a copy of the sale agreement with the Respondent, who agreed out of affection to pay for construction materials to be sourced by the Appellant. He claims that he then constructed the said residential premises and began residing therein. He alleges that the conflict arose on or about October 2022 when the Respondent started laying claim to the suit property upon entering into a relationship with another man when she visited the country. The Appellant made a counterclaim seeking three reliefs. First, a declaration that he is the lawful sole owner of the plot measuring 16m x 16m situated at Dabaso area within Malindi County. Secondly, a permanent order of injunction restraining the Respondent, his agent, servant, employees and/or any other person acting on her behalf from claiming, trespassing and/or interfering in any manner with the Appellant’s plot measuring 16m x 16m situated at Dabaso within Malindi sub-county. He also prayed for costs and interest on the suit. The Hearing of the main suit 8. From the Record of Appeal at pages 159-160, the matter came up for mention on 31st October 2023 in the presence of Counsel Matini and Michira for the Respondent and Appellant respectively. The court directed the parties to comply and return for hearing on 14th and 15th November 2023- dates taken by consent of both parties. MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 4 of 18

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9. On 14th November 2023, during the call over, only the Respondent’s counsel was present. The court fixed the matter for hearing at 10:43 am. At 11:15 am, Mr. Martini indicated that Mr. Michira was in court but wasn’t receiving calls on his mobile phone. Counsel informed the court that the court clerk informed him that Michira was in Hon. Njoroge’s Court, but he did not find him. He reiterated the travel costs of 1300 Euros incurred by his client to attend the hearing and urged that the case proceed. The court agreed with Counsel’s submissions and allowed the hearing to proceed, in the absence of Appellant’s counsel, and that if he indeed desired to proceed with the case, he would join virtually to cross-examine the Respondent. 10. The Respondent (PW-1) testified by adopting her witness statement dated 3rd October 2023 as her evidence-in-chief. She also reiterated the contents of her statement during examination-in-chief. PW-1 produced the documents contained in her list of documents dated 19th December 2022 and 3rd October 2023 as Respondent’s DExh1-4 and DExh 5-8 respectively. Her testimony is that she came to Kenya but only found an empty house which was disorganized and unfurnished despite sending the Appellant money to purchase items as per the list which he had shared - fridge, cooker, etc. The Respondent reiterated that she purchased the suit property for herself and not as a gift to the Appellant. She testified that she reported the matter at Watamu Police Station, but the Appellant was never arrested. She also made a similar report at Malindi Police Station. She further testified that the Appellant requested the Respondent’s daughter to request her to go back home to Italy as she was paying small boys to have sex with her. She prayed for a permanent order of injunction against the Respondent. 11. The Respondent closed her case and Counsel Matini indicated that he could file submissions by close of business on 15th November MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 5 of 18

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2023. The court abided by Counsel’s request and directed that the submissions on the ex parte hearing be filed by 15th November 2023. On 15th November 2023, the matter came up for mention to confirm the filing of submissions. The Respondent’s Counsel, in the absence of the Appellant’s Counsel, confirmed that he had filed submissions and consequently judgement was fixed for 21st November 2023. 12. On 21st November 2023, the trial magistrate delivered the judgement in the presence of Ms. Machuka holding brief for Mr. Matini for the Respondent. The Appeal 13. Aggrieved with the said judgement, the Appellant preferred an appeal against the judgement by way of a Memorandum of Appeal dated 27th November 2022, on the following grounds: 1. The Learned Trial Magistrate erred in both law and fact in holding that the Respondent was entitled to ownership and possession of the suit property as there was no agreement between the Appellant and the Respondent to hand over possession and ownership of the suit property to the Respondent; 2. The Learned Trial Magistrate erred in both law and fact and misdirected himself in holding that the Respondent was entitled to ownership and possession of the suit properly while the Respondent had prayed for refund of money in her pleadings; 3. The Learned Trial Magistrates erred in both law and fact and misdirected himself in holding that the suit property be transferred to the Respondent while the Respondent had no interest of this land having only wanted a beach plot; Page 6 of 18 MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26

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4. The Learned Trial Magistrates erred in both law and fact in ordering transfer of the property being a freehold land to the Respondent who is a foreigner of Italian Origin; 5. The learned Trial Magistrates erred in both law and fact in hearing the matter on 14th November, 2023 without the input of the Appellant's Counsel to defend his client even after being informed by the Respondent's Counsel that the Appellant's Counsel was before full hearing another Court (CM's) handling matters which were proceeding for full hearing; 6. That Learned Trial Magistrate erred in both law and fact in failing to afford the Appellant a chance to be heard and proceeded to pronounce judgment thereby condemning the Appellant unheard; 7. The Learned Trial Magistrate erred in both law and fact in concluding the matter on 14th November 2023 and ordering filing of submissions on 15th November 2023 just a space of one day only without making an order for a mention notice for the date of submission to be served upon the Appellant or his Counsel on record to enable the Appellant to file submissions. The Trial Magistrate closed the doors for the Appellant in the matter; 8. The Learned Trial Magistrate erred in both law and fact in failing to hold that parties are bound by their pleadings and misdirected himself by issuing orders to the Respondent which orders had not been pleaded for by the Respondent; 9. The Learned Trial Magistrate erred in both law and fact in issuing orders against Sammy C. Kenga, the Vendor of the suit property, to transfer the same to the Respondent MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 7 of 18

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without considering that the agreement was between the Appellant and Sammy C. Kenga and that Sammy C. Kenga was not a party to the matter before court; 10.The Learned Trial Magistrate erred in both law and fact in failing to evaluate the evidence to arrive at a fair determination of the case. 14. On 26th March 2025, this court, through its ruling, revived and extended the stay of execution orders granted on 22nd May 2024 pending the hearing and determination of the appeal. I have perused the record and note that the Appellant and the Respondent have filed submissions to the appeal. The Appellant’s submissions are dated 11 th February 2026, whereas the Respondents are undated. 15. The main issues for determination are; i. Whether the Appeal has merit? ii. What reliefs are the parties entitled to? 16. Regarding the issue as to whether the appeal has merit, the Appellant has centered his appeal on multiple grounds, some of which are repetitive and which I shall analyse while grouping them as below; I. Grounds 5,6,7, and 10 relating to the Fairness of the Conduct of the Trial Court Hearing vis-à-vis the Appellant’s right to a fair hearing II. Grounds 1,2,3,4,8 and 9 touching on the propriety of the Orders issued by the Trial Court in its judgement. 17. On the first category of grounds, the Appellant assails the learned trial magistrate for proceeding with the hearing on 14th November 2023 in the absence of the Appellant’s Counsel, notwithstanding that the court had been informed that counsel was engaged before another court in matters proceeding by way of full MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 8 of 18

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hearing. The Appellant contends that, by adopting that course, the trial court condemned him unheard. He further contends that, by directing the Respondent to file submissions within a day after the hearing, without issuing directions for a mention to confirm compliance with the filing of submissions, the trial court effectively shut the doors of justice against him. 18. Before embarking upon an examination of the proceedings before the trial court, it is imperative to reaffirm that the law jealously guards every person's right to a fair hearing Article 50(1) of the Constitution of Kenya 2010 provides that “Every person has the right to have any dispute that the application of law can resolve decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” Article 25(c) of the Constitution of Kenya 2010 recognizes that the right to a fair hearing cannot be limited. 19. The twin rules of natural justice that no man shall be a Judge in his own cause (Nemo Judex in causa sua) and that no man shall be condemned unheard (audi alteram partem) are cardinal principles of law which are fundamental in our justice system. Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heard states that: “The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice.” (Own emphasis) 20. In the instant case, it is common ground that the hearing dates of 14th and 15th November 2023 were fixed by consent of the parties on 31st October 2023, as reflected at page 159 of the Record of Appeal. It is equally apparent from page 160 of the Record that the MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 9 of 18

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Appellant’s Counsel was absent when the matter was called out for hearing. Nevertheless, the Respondent’s counsel informed the court that he was aware that the Appellant’s Counsel was engaged before another court. He further stated that he had unsuccessfully attempted to reach the said advocate through several telephone calls. No such evidence was presented. Counsel also informed the court that the Respondent had travelled from Italy to Kenya specifically for the hearing, incurring travel expenses amounting to 1,310 Euros, equivalent to Kshs. 213,000. Additionally, he asserted that the interim orders issued by the court had prompted the Appellant to threaten the Respondent. 21. The record unmistakably reveals that the hearing was concluded on the very first scheduled hearing date, namely 14th November 2023, with the Respondent being the sole witness to testify. At page 161 of the Record, it is evident that the Respondent’s counsel indicated that, should the Appellant wish to cross-examine the Respondent, such cross-examination could be undertaken virtually. That opportunity, however, never materialized. Immediately upon the conclusion of the Respondent’s testimony, her counsel closed the Respondent’s case and sought leave to file submissions by 15 th November 2023, being the second day that had been reserved for hearing. 22. The Respondent maintains that the Appellant seeks to abuse the court process, contending that he failed to attend the hearing without offering any explanation whatsoever for his absence. In support of that contention, reliance is placed on Order 12 Rule 2(a), which provides that: “2. When only plaintiff attends [Order 12, rule 2] MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 10 of 18

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If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the plaintiff attends, if the court is satisfied— (a) that notice of hearing was duly served, it may proceed ex parte; (b)that notice of hearing was not duly served, it shall direct a second notice to be served; or (c)that notice was not served in sufficient time for the Appellant to attend or that for other sufficient cause the Appellant was unable to attend, it shall postpone the hearing.” 23. The Respondent accordingly submits that the learned trial magistrate properly exercised his discretion in proceeding with the hearing, attributing the Appellant’s Counsel’s absence to deliberate non-attendance. The Appellant, on the other hand, maintains that his counsel was engaged before another court in matters proceeding by way of full hearing and contends that this fact was well within the knowledge of both the Respondent’s counsel and the trial court. 24. Upon a careful interrogation of the record, this Court is constrained to observe that the hearing had been scheduled over two consecutive days, namely 14th and 15th November 2023. In those circumstances, it may appear at a casual glance that it would have been more prudent for the trial court to reserve the second hearing date for the defence hearing, or that alternatively, the trial magistrate ought to have rescheduled the hearing for the second day - 15 th November 2023, and further that Respondent’s case was prosecuted with undue haste; that the Respondent had travelled to attend a hearing expressly scheduled for two days and could reasonably have remained available for the second hearing date. MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 11 of 18

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25. The curious event in the present appeal is the disclosure that the respondent’s counsel mentioned that the appellant’s counsel was engaged before another court. However, the basis of that claim was not laid before the trial court and further, no evidence whatsoever was tendered to substantiate the Respondent’s assertion that attempts had indeed been made to contact the Appellant’s Counsel. It was brought to the attention of the trial court that the Respondent’s had incurred significant travel expenses and that the Appellant had allegedly issued the respondent with threats based on his enjoyment of the existing interim orders issued by the court; in this court’s view those claims may have catalyzed the court’s into granting the respondent’s counsel’s application to proceed. 26. Whether or not the revelations by the respondent’s counsel motivated the court on that day into hearing the matter in the absence of the appellant and his counsel, the cardinal question arising is whether in the circumstances of this case the course adopted by the trial court was justified. 27. Admittedly, the hearing dates had been fixed by consent, and the primary obligation rested upon the Appellant’s Counsel to honour that engagement. If indeed counsel was constrained by commitments before another court, as alleged, prudence demanded that he deputize another advocate to hold brief, seek an adjournment, or at the very least notify the court of the earliest opportunity at which the defence would be ready to proceed. 28. This Court must take judicial notice of the fact that in the current times, judicial proceedings are routinely conducted through virtual platforms, thereby substantially mitigating geographical and logistical impediments to participation, and that if counsel for the respondent had so wished, he would have strategically placed his representative to MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 12 of 18

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hold his brief and apply for an adjournment at the hearing on 14th November 2023 which he did not. The irresistible conclusion, therefore, is that there was no way the court could have known what was in the mind of the respondent and his counsel. 29. Six factors have raised the curiosity of this court. It is evident from page 159 of the Record of appeal that disclosure was made that the respondent resides in Italy and that not being an English speaker, she would need an interpreter. The second is the revelation apparent at page 160 of the record of appeal that the parties willingly abandoned pursuit of an application dated 8/9/2023 solely to expedite the hearing of the matter on merit. The third is the very candour expressed by Mr. Matini at page 160 of the record of appeal in his intimation that his colleague may have been engaged at another court. The fourth is that Mr Matini appeared before the trial court on 15 th November 2023 alone and adopted his submissions in the absence of the appellant or his counsel despite their knowledge of that hearing date. The fifth is that there is no evidence that the appellant or his counsel followed up on the case to file an application to set aside the orders closing the case and/or arrest the judgment scheduled for 21/11/2023. The sixth is that no application for setting aside judgment was ever lodged before the trial court in which an explanation for the absence of both counsel and the appellant was given. 30. The last factor is of great significance because it signals that there was no attempt to convince the trial court by affidavit evidence that the absence of the appellant and his counsel on the hearing date was justified. It is further significant because what is before this court is an appeal in which no evidence of why they were absent can be, or has been, entertained. The omission to seek to set aside the proceedings and seek a hearing before the trial court despite having the opportunity to do so renders a fatal blow to their case at this MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 13 of 18

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appellate level to have the court declare that the trial magistrate misdirected himself in proceeding with the hearing ex parte. That is not an issue that should pop up at the appellate level while no explanation had been given in the court below. 31. Though the Constitution of Kenya 2010 provides for the right to a fair trial and a fair hearing, a litigant who has been sufficiently notified by the listing of the matter for hearing as scheduled must attend court for his hearing. Order 12 Rule 2(a) CPA expressly mandate the court to proceed to hearing the suit ex parte. If the trial court itself has not in any manner placed procedural or substantive impediments to a litigant’s enjoyment of that right, it would be quite an unfair selfflagellation on the part of the justice system to foist upon the trial court the blame for the consequences of an ex parte hearing arising from a party’s unexplained non-attendance. The necessary question that would arise, in the event this court rule otherwise in the present appeal, is when advocates and their clients will ever be expected to assume personal responsibility for their unexplained failure to attend hearing of their matters on the hearing dates of which they undisputedly had notice or knowledge. The consequence of upholding that alternative position is to spur on lackadaisical litigants to saddle the justice system with backlog at the expense of the vigilant litigants, which eventuality should not be allowed. 32. This court thus finds that the learned trial magistrate did not misdirect himself in both fact and law by allowing any extraneous considerations to eclipse the Appellant’s constitutionally protected right to be heard. 33. As to whether there was any impropriety in the learned trial magistrate further acceding to the Respondent’s request to file submissions within a day and that he never afforded the Appellant an MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 14 of 18

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opportunity to respond the same argument herein before applies, in that there is apparently nothing that prevented the appellant and his counsel from appearing before the trial court on the date scheduled for submissions and insist on being heard. This should not be the first stop for them to agitate that issue. As to whether it matters that no directions were issued requiring the Respondent to serve either the submissions or a mention notice upon the Appellant, it was for the appellant and his counsel to appear and plead for an opportunity to file submissions on 15th November 2023 which date was still a hearing date. It would be a matter of speculation as to whether the trial magistrate would have rejected the request had they attended court. That issue can also not be raised at the appellate level for the first time as the magistrate was not accorded a first opportunity to exercise his discretion thereon on 15th November 2023. It thus matters not that at the mention date on 15th November 2023, the Respondent’s counsel did not indicate to the court that the submissions filed had been served upon the Appellant since the matter had proceeded ex parte. In any event the impact of parties’ submissions in many cases is minimal because the court knows the law and it can deliver judgment even in the absence of parties’ submissions. Lastly, had the appellant and his counsel appeared on 15th November 2026 when the matter was scheduled before the trial court, they would have been apprised of the judgment scheduled for delivery on 21st November 2023. Consequently, the Appellant and his counsel remained absent both on the mention date and on the date fixed for delivery of judgment, and that without any explanation. 34. Upon a wholistic appraisal of the record, this Court is persuaded that the impugned judgment was the culmination of proceedings conducted in a proper manner and that it is the unexplained absence of the appellant and his advocate that occasioned him prejudice and MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 15 of 18

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he can not be heard to foist the liability thereof on the respondent or the court. Consequently, this Court finds no juridical basis upon which the impugned judgment can be overturned. 35. The second category of grounds concerns the Appellant’s challenge to the merits of the suit as encapsulated in Grounds 1, 2, 3, 4, 8 and 9 of the Memorandum of Appeal. 36. Having noted that the respondent’s evidence was not controverted, I really find no ground upon which the judgment of the learned trial magistrate can be overturned. At page 166 of the Record of appeal the court noted the absence of the appellant and the lack of any evidence in opposition to the respondent’s claim at the hearing. Furthermore, I have perused the evidence given by the respondent at the hearing and in this court’s view it supports the statements in the plaint wholly. Evidence of payments effected by the respondent through the appellant was unopposed. The only thing that the appellant was supposed to do was to appear and prove that monies were sent to him and received only for the reason of his being a boyfriend; that upon receipt, the application thereof would be solely at his discretion and not in trust for the respondent, and he failed to do so. There does not appear to be any reason why the appellant would have received so much money gratuitously from the respondent. There had to be an explanation. The appellant’s fate is sealed by the unopposed evidence that the respondent came to Kenya and equipped the same house with kitchenware and other comfort items. This court is persuaded the respondent wanted the funds used for a holiday home for herself and her family and not for a house for the appellant. 37. Further, it is the rule that where a defence has been filed and no evidence is called in substantiation of the statements therein, that defence is of no consequence. In the case of Netah Njoki Kamau & MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 16 of 18

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another v Eliud Mburu Mwaniki [2021] KEHC 2810 (KLR) it was stated as follows: “7. The respondent filed a defence denying appellants’ allegation of his negligence having been the cause of the accident. At the hearing, the respondent was required, as much as the appellants’ were required, to adduce evidence to prove their pleadings. Pleadings are mere allegations. Pleading do not prove an allegation which can lead to the entry of judgment unless the allegation/the claim is undefended and is a claim for liquidated demand. In the case before the trial court, the claim was for damages due to alleged negligence of the respondent. 8. The respondent did not at all call evidence to prove the defence, he raised denying negligence on his part and instead lay the blame on the deceased. It follows that the respondent’s defence remained mere allegation.” 38. The requirement that party must call evidence to prove his case is not strange and the Court Of Appeal has reiterated the principle that even where there is no defence filed, a plaintiff must establish his case by way of evidence to the standard required by law in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR. Thus, the learned trial magistrate appropriately granted judgment in favour of the respondent. the defendant never called evidence to prove his case and he has no-one but himself to blame for the consequences of his own omission. 39. This court therefore issues the following final orders: i. The present appeal is hereby dismissed and the Judgement delivered on 21st November 2023 by the Trial Magistrate Hon. J Ongondo in Malindi MCELC E383 OF 2022 is hereby upheld; MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 17 of 18

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ii. The costs of the present appeal and of the suit before the trial court to wit Malindi MCELC E383 OF 2022 shall be borne by the appellant; iii. The appeal file is hereby marked as closed. Dated, Signed, And Delivered at Malindi on This 6 th Day of October 2026 MWANGI NJOROGE JUDGE, ELC, MALINDI MLDELCA E023 OF 2023/ JDGT/DF-27.11.23/DJ-06.10.26 Page 18 of 18

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