George Mburu Wanjiru v John Mukima & 2 others

a) The learned trial magistrate erred in law and in fact in failing to appreciate that the issue at hand was not the sale/transfer of shares at Kihiu Mwiri Farmers Company Ltd but the sale of a plot by the respondents to the appellant at Kihiu Mwiri Farmers Company Ltd. b) The learned trial magistrate erred in law and in fact by holding that the appellant should have sued Kihiu Mwiri Farmers Company Ltd for failure to allocate him a plot. c) The learned trial magistrate erred in law and in fact by failing to appreciate the process of buying land through share certificates hence the erroneous decision that the respondents ceased being members of Kihiu Mwiri Farmers Company Ltd upon sale of their shares. 3. Parties disposed of the appeal by way of written submissions. The Appellant’s Submissions 4. The appellant submits that he intended to purchase plot number 5844 owned by Kairi Wazee 2004 Welfare Group and entered into a sale agreement dated 19 th January 2013 with the respondents for and on behalf of the said welfare group. It was an understanding of both parties that in order for him to own a plot, he needed to become a member of Kihiu Mwiri Farmers Company Limited as the HC. CIVIL APPEAL NO. E039 OF 2024 PAGE 2

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plot did not have a title deed but was denoted by a share certificate. Thus the respondents were to transfer their shares to him, who upon becoming a fully certified member of Kihiu Mwiri Framers Company Limited would be entitled to plot number 5844. 5. The appellant argues that the respondents issued the one share certificate number 4264 to him and to one Joel Guchu Karanja. A cursory look at the said certificate shows that it was first issued on 27 th December 1978 to Joel Guchu Karanja and then to Kariri Wazee 2004 Group and then to the appellant. The appellant submits that he discovered while processing the title deeds for members, that his registration was disputed by Joel Guchu Karanja who claimed that he had never sold the plot to the respondents and that he was the original owner of share certificate number 4264 having been issued to him on 27 th December 1978. 6. The appellant submits that the trial court absolved the respondents of any responsibility yet they admitted to having sold the plot to him and confirming that it belonged to Kihiu Mwiri Framers Company Ltd, a fact confirmed by the minutes of the respondents’ welfare group. The appellant argues that the said minutes confirm that the respondents knew of an existent plot and entered into a contract with him. Further the sale of the plot denoted by share certificate number 4264 warranted the meeting of members of Kairi Wazee Welfare Group and the rise of the HC. CIVIL APPEAL NO. E039 OF 2024 PAGE 3

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minutes. Thus, the appellant argues that it was wrong for the `court to conclude that by virtue of not mentioning a plot number the respondents were not selling any plot to him. The appellant submits that the trial court was rewriting the contract between the parties which has been frowned upon. To support his argument the appellant refers to the case of Centurion Engineers & Builders Limited vs Kenya Bureau of Standards [2023] KECA 1289 (KLR). 7. Relying on the case of Consolata Anyango Ouma vs South Nyanza Sugar Co. Ltd [2015] KEHC 4426 (KLR), the appellant argues that there was breach of contract and thus the respondents ought to refund him his money back. The Respondents’ Submissions. 8. The respondents submit that the share certificate number 4264 shows that the appellant bought twenty (20) shares from Kihiu Mwiri Framers Company Ltd. Further, the sale agreement dated 19th January 2013 did not mention any plot and neither did the minutes of Kairi Wazee Welfare Group. The said documents only mention the share certificate number 4264. Upon the transfer being duly registered by the company, the company issued the appellant with a Certificate of Allotment which provided that he was the registered owner of the provisional allotment plot of land known as MITUBIRI NANGA BLOCK A 9214/5844 which was under sub division. The respondents HC. CIVIL APPEAL NO. E039 OF 2024 PAGE 4

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further submit that the appellant even admitted on cross examination that they did not sell to him any plot. 9. The respondents submit that they produced the share certificate number 4264 which showed that Joel Guchu Karanja was the original owner and he transferred all his shares which comprised of the plot to Kairi Wazee 2004 Welfare Group. Thus at the time of transfer of the shares and the plot to the appellant, the plot belonged to Kairi Wazee 2004 Welfare Group and was registered as such. 10. The respondents assert that vide an agreement for sale dated 19th January 2013, the parties agreed through the consent of the members of Kairi Wazee 2004 Welfare group to transfer their shares and plot to the appellant as per the minutes dated 20/1/2013. The appellant agreed to that fact in his plaint that they effected transfer of the said shares at the offices of Kihiu Mwiri Farmers Company Limited. Thus the respondents contend that it is clear that they effected transfer of the shares and plot to the appellant and what remained was for the company to give the appellant actual ownership of the plot. Further, the respondents submit that having effected the transfer of the shares to the appellant, they ceased to be members of Kihiu Mwiri Farmers Company Limited and thus it was upon the company to put the appellant into actual occupation of his property. Thus the appellant ought to have sued the company. HC. CIVIL APPEAL NO. E039 OF 2024 PAGE 5

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Issue for determination 11. The main issue for determination is whether the appellant proved his case on a balance of probabilities. The Law 12. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123: “…..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. In particular,, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 13. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:An appeal to this court from a trial by the High 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 HC. CIVIL APPEAL NO. E039 OF 2024 PAGE 6

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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. 14. It is trite that the appropriate standard of review to be established can be stated in three complementary principles:a) That on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; b) That in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; and c) That it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time. Whether the appellant proved his case in the trial court on a balance of probabilities. HC. CIVIL APPEAL NO. E039 OF 2024 PAGE 7

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15. It is trite law that he who alleges must prove. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, provides that:Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 16. This degree of proof is well enunciated in the case of Miller vs Minister of pensions [1947] cited with approval in D.T. Dobie Company (K) Limited vs Wanyonyi Wafula Chabukati [2014] eKLR where the court stated:That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, thus proof on a balance or prepodence of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally unconvincing the party bearing the burden of proof will lose, because the requisite standard will not have been attained. 17. According to the appellant, on 19 th January 2013, the respondents sold HC. CIVIL APPEAL NO. E039 OF 2024 him plot number 5844 for a PAGE 8

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consideration of Kshs. 70,000/-. Upon payment of the purchase price, the respondents transferred the share certificate and he was issued with a certificate of allotment by Kihiu Mwiri Farmers Ltd. On 23 rd October 2015, the appellant was informed that the plot had a dispute as the original owner Joel Guchu Karanja stated that he never sold the plot to the respondents. 18. On cross examination, the appellant testified that the respondents sold him shares equivalent to one plot and that although in the agreement there was no plot number, he knew the plot number to be No. 5844. He further stated that the plot number came out later as the plot had not been identified but was in the process of being identified. The appellant further stated that the respondents effected the transfer of shares to him after which they ceased being members of Kihiu Mwiri Farmers Company Limited and that the said company was the one to give him the plot. 19. It was the respondents’ case that they did not owe the appellant any money. On cross examination, the 1 st and 3rd respondents admitted that they sold the appellant the plot but on re-examination, the 3 rd respondent stated that the plot belonged to Kihiu Mwiri Framers Company Limited. 20. On perusal of the sale agreement dated 19 th January 2013, shows that the respondents sold to the appellant shares belonging to Kihiu HC. CIVIL APPEAL NO. E039 OF 2024 PAGE 9

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Mwiri Farmers Company Limited vide share certificate no. 4262 for a consideration of Kshs. 70,000/-. I have also perused the minutes of Kairi Wazee 2004 Welfare Group and noted that it provides for a plot but does not specifically mention the plot umber. The said minutes only refer to the plot being at Kihiu Mwiri Farmers company Ltd share certificate no. 4262. It is evident that both the sale agreement and the minutes do not mention any specific plot that the appellant had purchased. This fact was further admitted by the appellant on cross examination that the respondents did not sell him any plot. 21. After the sale and transfer of the shares to the appellant, the respondents ceased to be members of Kihiu Mwiri Farmers Company Limited and therefore any further dealings were meant to be done with the said company which explains why all the subsequent documents after the transfer of the shares and the registration of the appellant were issued by Kihiu Mwiri Farmers Company Limited. Thus, the appellant was meant to follow up with the company to ensure that he was allocated the plot sold to him by the respondents. In the circumstances, it would have been prudent for the appellant to have sued the said company in the lower suit. 22. Thus, it is my considered view that the appellant did not prove his claim of refund of KSh.70,000/= plus interests against HC. CIVIL APPEAL NO. E039 OF 2024 the respondents to the standards PAGE 10

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required in civil cases. I find no fault in the finding of the Magistrate in dismissing the claim. 23. I find no merit in this appeal and it is hereby dismissed with costs. 24. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 12TH DAY OF JUNE 2025. F. MUCHEMI JUDGE HC. CIVIL APPEAL NO. E039 OF 2024 PAGE 11

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