Sereria v Allianca (One) Tobacco (K) Ltd (Civil Suit 2 of 2012) [2013] KEMC 104 (KLR) (6 June 2013) (Judgment)
Neutral citation:
[2013] KEMC 104 (KLR)
Republic of Kenya
Civil Suit 2 of 2012
PA Ndege, Ag. PM
June 6, 2013
Between
Isaya Tatiru Sereria
Plaintiff
and
Allianca (One) Tobacco (K) Ltd
Defendant
Judgment
1The Plaintiff herein, Isaya Tatiru Sereria, is at all material times herein a registered farmer with the defendant herein, Alliance (One) Tobacco (K) LTD. The dispute herein arose when the defendant supplied the plaintiff with some farm implements, fertiliser and herbicides for him to use in cultivating tobacco and then sell the cultivated tobacco to the Defendant's company who was expected to deduct the costs of the supplied inputs from the proceeds of the sale. The dispute mainly arose when the Plaintiff herein sold the Cultivated tobacco to a different company. He was therefore expected to refund the amount for the costs of the farm inputs that the defendant had supplied to him and which he had used to cultivate the tobacco.
2.The plaintiff readily admitted the same as a debt on his part, which he eventually cleared as per the evidence adduced during the trial herein.
3.The plaintiff, however claims that in the course of the dispute herein, the Defendant invaded his homestead and seized 2 heads of cattle, 6 goats and 20 iron sheets all valued at Kshs. 76,000/=, which they have refused/failed and/or ignored to refund despite the evidence of him having settled the outstanding claim/ debt. He therefore decided to file this suit vide a Plaint dated 24.02.2012 seeking the refund of 2 heads of cattle, 6 goats and 20 iron sheets; or the equivalent value of Kshs. 76,000/=, costs and interests at court rates.
4.The defendant denied the plaintiff's claim against them vide a statement of defence dated 20.02.2012 and put the plaintiff to strict proof thereof.
5.During the trial herein, the plaintiff was the only witness in his case. He stated that he was informed and that he did confirm that the George Yako (DW1), an employee of the defendants' had gone to his home and took away the items/ animals alleged herein for the reason that he had not cleared the debt herein. That he later agreed with them that he would clear the debt, which he eventually did, but that the defendant has still refused to refund him the properties.
6.George Yako, DW1, was called as a witness for the defendant. He acknowledge the debt herein but which was later amicably settled by the plaintiff without them resorting to any seizure in recovery of the same as claimed by the plaintiff.
7.That the plaintiff owed the defendant for the cost of the supplied farm inputs is not in doubt. The fact that the same was fully cleared by the plaintiff has also not been disputed. The main issue/s for determination herein is whether the defendant herein, while being represented by DW1: George Yako, did seize the plaintiff's properties herein and whether the plaintiff is entitled to the reliefs sought.
8.I do agree with the learned defence counsel's submissions on the burden of proof herein. In civil claims, whoever asserts the existence of any fact and who wants the court to give judgment as to any legal right or liability dependant on the existence of that fact must prove that the fact indeed exist.
9.The defendant herein admitted the existence of most of the facts giving rise to the claim herein, but denied in their pleading, in the evidence during trial that they or their employee known as George Yako, DW1 or any other employee/ agent or any other person seized the Plaintiff's items as claimed herein. The plaintiff, with due respect to him, appears to have treated his claim casually, as he did not bring in any admissible evidence to prove that the defendant herein or DW1, George Yako, seized his property as claimed. His claim against the defendant and/or DW1, George Yako, is based on hearsay as he did not disclose or call the child who he claims to have seen the Defendant/ or DW1, George Yako, unlawfully take away his goods/ animals to give a direct evidence to prove his claim to the required standard. The plaintiff mainly concentrated on the evidence of him having repaid the debt, a fact which appears not to be in contention herein.
10.The standard of proof in civil claim is on a balance of probability. I do not find that the plaintiff has discharged his burden of proof herein to this required standard. The existence of the items/ property claimed to have been seized unlawfully herein has not been established to the required standard. An order for their refund must be complemented by an order for a sum value of the property which shall be in the nature of special damages which must not only be specifically pleaded, but must also be proved.
11.The Plaintiff did not see the defendant, or DW1, George Yako, take his property away. The defendant, and DW1, George Yako, has denied the same, and we cannot just presume that they are the ones who unlawfully seized the plaintiff's property as claimed herein.
12.I do therefore find that the plaintiff has failed to prove his claim against the defendant.
13.No notice of intention to sue was filed or proved to have been served on the defendant before the filling of the suit herein and I do therefore hereby dismiss this suit with costs to the Defendant.
DATED, SIGNED AND DELIVERED AT KEHANCHA IN OPEN COURT THIS_06th DAY OF June, 2013ALOYCE-PETER-NDEGEAG. PRINCIPAL MAGISTRATEIn the presence of;Court clerk: MagigePlaintiff's counsel: MunikoDefendant Counsel: AbsentPlaintiff: Present