Lagat v Cherunya (Commercial Case E024 of 2024) [2024] SCC 26 (KLR)

5. The Claimant testified and adopted his witness statement dated 13th February 2024 as his evidence in chief. He reiterated the contents of the Statement of Claim herein. He relied on the lease agreement dated 28th April 2024 (Cexh.1) to support the claim herein. 6. On the part of the Respondent, he adopted his witness statement dated 06th March 2024 as his evidence in chief. He produced his Mpesa statement for the period from 1st October 2021 to 31st December 2023 (Rexh.1) showing that he received Kshs. 68,000/= from the Claimant. On cross-examination, he conceded that the lease agreement dated 28th April 2022 was in relation to the years 2023 and 2024. He also conceded that the Claimant had not ploughed the leased land in the year 2024. He added in re-exam that the Claimant had not ploughed the leased land in 2024 since the Claimant had not paid Kshs. 462,000/= for the lease. Issues for Determination 7. 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 8. There has been concerns that a claim for refund of money arising from a sale and/or lease of land transaction falls within the jurisdiction of the Environment and Land Court. 9. Section 13(2) of the Environment and Land Court Act that sets out the jurisdiction of the Environment and Land Court does not oust the jurisdiction of any other court from hearing and determining a claim for recovery of money arising from a sale and/or lease of land transaction 10. The claim herein is limited to the recovery of money allegedly held by the Respondent as a result of a lease of land agreement dated 28th April 2022. 11. For the reasons above, this court finds 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 12. This court has had the benefit of carefully analyzing the terms of the lease of land agreement dated 28th April 2022 (Cexh.1) filed herein. 13. The Respondent admitted to signing the said lease agreement. He also admitted having prevented the Claimant from ploughing the leased land for the year 2024. He alleged that the handwritten terms in Cexh.1 immediately after the word N/B were written by his wife Jane. He failed to call the said Jane to corroborate those assertions. He added that he only received Kshs. 396,000/= from the Claimant and not Kshs. 924,000/= indicated in Cexh.1. 14. The terms of the lease agreement dated 28th April 2022 (Cexh.1) are abundantly clear that as at 28th April 2022, the Respondent received Kshs. 924,000/= from the Respondent. The said agreement actually expressly states that as at 28th April 2022 there was ‘Nil’ balance and that the whole consideration of Kshs. 924,000/= had been ‘paid in cash and all clearences.’ https://new.kenyalaw.org/akn/ke/judgment/scc/2024/26/eng@2024-04-11 2

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15. In the case of Pius Kimaiyo Langat v Co-operative Bank of Kenya (2017) eKLR it was held that the court cannot re-write contracts for parties but can only enforce the same as per the terms. The court can only rewrite a contract in certain instances like where the terms are unconscionable, the agreement was procured by duress, undue infiuence, or where an agreement is tainted with illegality. 16. The evidence led by the Respondent does not fall within the exceptions from the general rule that parties must be bound by the terms of the agreement they signed. 17. The Respondent having admitted that he prevented the Claimant from ploughing the leased land in 2024 despite acknowledging through the lease agreement dated 28th April 2022 (Cexh.1) to having received the whole consideration of Kshs. 924,000/=, it follows that the Respondent is in breach of the terms of the said lease agreement. 18. Consequently, this court finds that the Claimant proved the claim herein to the required standards. What are the costs due to the claimant or Respondent, if any 19. 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. 20. Guided by the above sections of the law and considering the fact that the Claimant was represented by a counsel, the costs due to the Claimant are hereby assessed at Kshs. 20,000/=. Disposition 21. The upshot of the foregoing is that:a. Judgment is entered against the Respondent for the sum of Kshs. 462,000/=(Kenya Shillings Four Hundred and Sixty-Two Thousand) only b. The sum of Kshs. 462,000/=(Kenya Shillings Four Hundred and Sixty-Two 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. DELIVERED VIA ELECTRONIC MAIL THIS 11TH DAY OF APRIL 2024 T. O. OMONO ADJUDICATOR https://new.kenyalaw.org/akn/ke/judgment/scc/2024/26/eng@2024-04-11 3

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