Peter Oduor Oduol v Erick Oluoch Odemba

6. The Court gave direction that the appeal be determined by way of written submissions. The Appellant’s Counsel M/s. P Ochieng Ochieng & Co. Advocates filed their submissions on 9 th March 2018, whereas M/s. Bruce Odeny & Company Advocates filed submissions on behalf of the Respondents on 14th March 2018. I shall therefore proceed to consider the Appeal on the basis of the pleading, the evidence adduced before the trial Court and Counsel’s rival submissions. 7. The Appellant Counsel in his written submissions contends the Learned trial Magistrate erred in law and fact by making a finding that the plaintiff had proved that the 1 st defendant (Appellant) owed the Respondent money. The Appellant urges the Respondent in crossexamination, stated under exhibit 5, of his book, it shows he received other amounts of fish which he had not accounted for. That the trial Court found there was no explanation of the meaning “start float” in the document. The appellant urged the trial court misdirected itself having found the evidence in exhibit P.5 as he did, in finding the amount was owing and added it to amounts indicated in exhibit P-1, 2 and 3. The Appellant urged the evidence of Usenge Beach Management Unit, Chairman, DW3 was wrongfully rejected. 8. The Appellant underground No. 1 of appeal contends that the Learned Magistrate erred in law and fact by making a finding in favour of the Respondent, having not proved that the Appellant owed him any money. The Respondent in his plaint claimed KShs.584,940 from the Appellant. The Respondent averred the amount he was claiming arose out of a loan he advanced the Appellant and machine which he had also given the Appellant who declined to returned the same. The Respondent produced three agreements dated 27.8.2013, exhibit 1, 2 nd agreement dated 8.9.2016 exhibit 2 and thirdly agreement dated 16.1.2014 exhibit 3. The total amount in the three agreements is KShs.185,000. The mode of repayment was by delivery of fish to the Respondent at a recovery rate of KShs.30 for each kilogramme of the fish delivered. The Respondent produced record on delivery of fish exhibit 4 dated 12 th January 2015 and 9th January, 2015. PW2 confirmed the engine used in the boat used by the Appellants was given to the Appellant by the Respondent and that the Appellant used to give fish to the Respondent. 9. The Appellant in his evidence testified he used to sell fish to the Respondent since 2013 and stopped in 2015 as he used to advance him money and deduct upon delivery at a rate of KShs. 30 per kilogram of fish. The Appellant in his defence stated he does not know whether he owes the Respondent any money but admitted there was a record which he used to sign and admitted the Respondent gave him three engines but one got lost. The Appellant stated he does not have any record to show he paid the Respondent money and how much. DW3 produced record on the amount of fish which the Appellant delivered to the Respondent exhibit D1. DW3 did not produce the records of the transaction between the Appellant and the Respondent urging Respondent has it. 10. I have carefully considered this Counsel’s rival submissions and the evidence by the Respondent and his witness and the Respondent and his witness. The Appellant in his evidence did not deny the three agreements nor their contents. The Appellant similarly has not challenged the contents of exhibit 4. The document shows what the Appellant delivered on three occasions being all in all worthy KShs. 62,540. On the Appellants defence that he supplied fish and be paid the amount to the extent of KShs.345,690/= he did not produce any record but opted to rely on record from Usenge Beach Management Unit. DW3 produced exhibit D1 which showed the amount of fish delivered was 11,523 kgs. The exhibit D1 is inrespect of fish delivered to Usenge Beach Management Unit at the time of weighing the same. It is not an acknowledgement of delivery of fish to the Respondent. The document has nothing to do with the transactions between the Appellant and the Respondent. The Appellant showed exhibit D1 was his delivery and urged he does not have any records to show the amount of fish he delivered to the Respondent nor received by him to show he paid the Respondent his claim. 11. Having considered the evidence in its totality I am satisfied the Respondent proved his claim that the Appellant owed him money as found by the trial Court to the tune of KShs.346,400/=. 12. I have very carefully considered the Appellant’s written submissions and the five grounds of appeal and noted all surround on the issue raised underground No. 1 of the appeal which I have considered, and found that, it would be repetition in dealing with grounds Nos. 2, 3, 4, 5 and 6 of the Petition. The said grounds have already been disposed off underground No.1. of the appeal. I therefore find no merits in grounds Nos, 2, 3, 4, 5 and 6 and I dismiss the same. 13. The upshot is that the Appeal has no merits and the same is dismissed with costs. DATED at SIAYA This 20th Day of April 2018. J.A. MAKAU JUDGE Delivered in Open Court In the Presence of Ochieng Co. Advocate for Applicant Mr. Bruce Odeny & Co. Advocate for the Respondent. Court Assistants: 1. Laban Odhiambo 2. Leonida Atika J.A. MAKAU

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JUDGE

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