Yego v Obege (Commercial Case E038 of 2024) [2024] SCC 21 (KLR)

he knew was being held by the Respondent as a beneficial owner. The Respondent also averred that this court lacked the jurisdiction to hear and determine this claim since the claim herein was a preserve of the Environment and Land Court. Consequently, this claim proceeded to full hearing. The Claimant testified and adopted his witness statement dated 04 th April 2024 as his evidence in chief. He produced the lease agreement dated 04 th July 2023 (Cexh.2), copies of bank statements (Cexh. 1 (a) and (b)), copy of charge sheet (Cexh.3), and copies of the Respondent’s national identity card and pay slip (Cexh. 4 (a) and (b)), to support her his case. When the Respondent took to the witness stand, she adopted her witness statement dated 08th May 2024 as her evidence in chief. She admitted signing the lease agreement (Cexh.2). She acknowledging receipt of Kshs. 690,000/= from the Claimant. ISSUES FOR DETERMINATION Parties' pleadings, documents, submissions, and the evidence led during the hearing of this matter have been duly considered by this court. The issues that commend to this court for determination are:a) Whether this court has jurisdiction to hear and determine this claim b) Whether the Claimant has proved his claim to the required standards c) What are the costs due to the claimant or Respondent, if any Whether this court has jurisdiction to hear and determine this claim The Respondent pleaded at paragraph 5 of her Response to the Statement of Claim dated 08th May 2024 that this claim should be transferred to the Kitale SCC CC. No. E038 of 2024 Page 2 of 6 Judgment

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Environment and Land Court hence this court lacked the jurisdiction to hear and determine this claim. The proper test for determining whether or not a court has jurisdiction is the Pre-dominant Purpose test. In the case of Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR, the High Court stated thus: “Subsequent to the above decisions, our Courts have identified the correct approach to determine the appropriate superior Court to hear such hybrid cases. The Courts have resolved the issue by inquiring what the most substantial question or issue presented in the controversy is. For example in Suzanne Butler & 4 Others v Redhill Investments & Another, the Court stated the test in the following words: “When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test…” The Court of Appeal in Bank of Africa Kenya Limited & Another vs TSS Investment Limited & 2 Others (Civil Appeal No. E055 of 2022) relied on the Pre-dominant Purpose Test to determine the question of whether the ELC had jurisdiction to hear and determine disputes relating to charges and mortgages. Applying the Pre-dominant Purpose Test propounded in the above authorities to this claim, it follows that the Predominant Purpose in the claim herein is that the Claimant is only seeking the recovery of Kshs. 690,000/= held by the Respondent. The Claimant is not seeking to use and/or occupy the land that the Respondent purported to lease to him. Section 13(2) of the Environment and Land Court (ELC) Act that sets out the jurisdiction of the Environment and Land Court does not oust this court’s Kitale SCC CC. No. E038 of 2024 Page 3 of 6 Judgment

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jurisdiction to entertain a claim for recovery of money held as a result of a botched lease of land agreement. It is against this background, that this court finds and holds that this claim falls within the four corners of section 12(1) (b) and section 36(1) (c) of the Small Claims Court Act hence this court has the jurisdiction to hear and determine this dispute. Whether the Claimant has proved his claim to the required standards The Claimant and the Respondent admitted entering into the land lease agreement dated 04th July 2023 (Cexh. 2). The Respondent admitted having received Kshs. 690,000/= from the Claimant. It was the Respondent’s case that the Claimant could not take possession of the land she purportedly leased to him owing to the absence of authority from the KALRO head office. This court has had the benefit of carefully analyzing the terms of the land lease agreement herein. An authority from KALRO was not a condition precedent to the Claimant taking possession of the land in dispute on 15th January 2024. Further, no evidence was placed before this court by the Respondent to prove that she had authority from KALRO to lease their land to any person. Simply put, there was no land for the Respondent to lease to the Claimant. In the circumstances, this court holds and finds that this was a clear case of the Respondent fraudulently obtaining money from the Claimant. The Respondent cannot be allowed to benefit from her wrongdoing. To this end, this court associates itself with the sentiments of Bosire J (as he then was) in the case of Belle Maison Ltd. -v- Yaya Towers Ltd, (Nairobi HCCC No. 2225 of 1992) where he stated:- Kitale SCC CC. No. E038 of 2024 Page 4 of 6 Judgment

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“...nor must a wrongdoer be permitted to benefit, however remotely, for his wrongdoing, none so where the wrong is blatant or where the act of wrongdoer is contrary to law. In cases where the conduct of the Defendant is contrary to law, the court has no discretion. By shutting its eyes to the act, the court will in effect be indirectly sanctioning it…” The upshot of the foregoing is that the Claimant proved the claim herein to the required standards. What are the costs due to the claimant or Respondent, if any Section 33 (1) of the Small Claims Court Act grants the court discretion to award costs. Rule 37 of the Small Claims Court Rules provides that in assessing costs recoverable under section 33 (1) of the Act, the Court shall be guided by the Second Schedule to the Rules. Guided by the above sections of the law and because the Claimant was represented by a counsel, the costs due to the Claimant are hereby assessed at Kshs. 20,000/=. DISPOSITION The upshot of the foregoing is that:a) Judgment is entered against the Respondent for the sum of Kshs. 690,000/=(Kenya Shillings Six Hundred and Ninety Thousand) only b) The sum of Kshs. 690,000/=(Kenya Shillings Six Hundred and Ninety Thousand) only in (a) above shall attract interest at court rate from the date of this judgment till payment in full c) The Claimant shall have the costs of this claim assessed at Kshs. 20,000/=(Kenya Shillings Twenty Thousand) only Judgment accordingly. Certificate of costs and decree to issue. Kitale SCC CC. No. E038 of 2024 Page 5 of 6 Judgment

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Judgment read, signed, and delivered in open court at Kitale this 11th day of June 2024 T.O. OMONO ADJUDICATOR Kitale SCC CC. No. E038 of 2024 Page 6 of 6 Judgment

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