Marwa v Nyamohanga & another (Civil Suit 23 of 2011) [2013] KEMC 105 (KLR) (22 November 2013) (Judgment)
Neutral citation:
[2013] KEMC 105 (KLR)
Republic of Kenya
Civil Suit 23 of 2011
PA Ndege, Ag. PM
November 22, 2013
Between
Boke Sagirai Marwa
Plaintiff
and
Charles Monanka Nyamohanga
1st Defendant
Chacha Kenega
2nd Defendant
Judgment
1.The plaintiff herein, Boke Sagirai Marwa, has vide a plaint dated 04.10.2011, sued the defendants herein, Charles Monanka Nyamohanga and Chacha Kenega ( hereinafter referred to as the '1st defendant' and the '2nd defendant' respectively), jointly and severally for the following prayers:-a.Return of three (3) heads of cattle and a calf born after the seizure of the cattle by the defendants or their equivalent in monetary value of Kshs. 47,300/=,b.Costs of this suit,c.Interest on (a) and (b) thereof,d.Any other relief this court may deem fit.
2.It is his case that on or about 01.04.2011, the defendants unlawfully and without any justifiable cause or colour of right seized and took away his eight (8) heads of cattle being 5 bulls, 2 milk cows and a young heifer. That they later on returned five (5) cattle and retained three (3) cattle being two bulls and one cow plus a calf that was delivered after the seizure of the cattle by the defendants all valued at Kshs. 47,300/=. That as a result of the aforesaid acts, he has suffered considerable loss and damage for which he holds the Defendants jointly and severally liable to compensate him.
3.The 2 defendants herein, in their Statement of Defence dated 16.11.2011, denied the plaintiff's claim and called for strict proof of the same from him during the hearing.
4.On or about the night of 26th and 27th January, 2009, the Ist defendant was a businessman, operating a bar with the trade name ' Bam Bam' at Ikerege centre. He had employed DW4, Joel Chacha Manko, as the counter operator in the said business.
5.DW4, Joel Chacha, informed the court during his evidence that he was attacked by some robbers who he was able to identify as Gentegai Samwel and a Nyamohanga. That the robbers took from him the keys to the bar and told him that they were going for the 'boss'. The plaintiff herein was not among them.
6.The 1st defendant herein, DW1, Charles Monanka Nyamohanga, confirmed in his evidence that he then got a phone call from a fellow teacher who informed him that his bar had been stolen from. He went to the bar the following morning and confirmed the theft. He made a report to Kehancha Police station, and while the inquiry/ investigations were still pending, he got a tip off after around 2 weeks that Gentegai Chunchurya , Nyamohanga Ntango and 2 other Tanzanian nationals who were staying with the two were the suspects. He took the matter to the Iritongo (Community Police).
7.DW3, Charles Getangita Nyakiha and DW5, Omahe Mwita, the Community Policing leaders, confirmed that the 1st defendant herein took the matter to them. That they also went to his bar and confirmed that the counter had been broken into and items estimated to be worth Kshs. 143,000/= stolen therefrom. They did their own investigations and inquiries, which according to DW5, Omahe Mwita, involved following some bicycle tyre marks there which led them towards the homes of Gentegai Chunchuria and Nyamohanga Wantango. That further inquiries confirmed that Gentegai Chunchuria and Nyamohanga Wantango were the suspects, nay thieves/ robbers. They wanted to seize their properties, cows, to be used as compensation herein and while still continuing with their investigations, they realised that one of the suspects, Gentegai Chunchuria, had driven his 2 cows which DW3, Charles Getangita Nyakiya, described as a black female cow without hones; and a black and white spotted bull with hones used for ploughing to the plaintiff herein who received the said cows from him. They sent their community police guards (sungu sungu) to trace and get the cows back. According to DW5, Omahe Mwita, the guards followed the hoof marks of the cows up to the home of PW2, Lucas Mwita Machera.
8.According to the plaintiff's evidence in court, PW1, Boke Marwa Sagirai, his cows which were at PW2, Mwita Machera, his nephew's home, were unlawfully taken away by the community police guards (commonly known as sungu sungu) on 01.04.2011. That PW2, Mwita Machera, informed him that the cows were taken by DW5, Omae Mwita (Kangunyo), Gimasi Nyamatiko and Matiko Samwel while with the defendants herein.
9.PW2, Lucas Mwita Machera, in his evidence confirmed that the plaintiff herein, his uncle, had taken his 2 cows to him. That on the morning of 01.04.2011, the sungu sungu went to his place while with the defendants herein and took away the cows which were to be used to compensate the 1st defendant herein for the theft that had occurred at his premises.
10.It is then common ground herein that a community policing meeting was held after the seizure of the cows herein which resolved that the cows be given to the 1st defendant herein as compensation for the theft ay his bar.
12.The plaintiff felt aggrieved by the said decisions and complained to the village elders. He produced a letter from the community policing addressed to the traditional elders dated 18/05/2011, some proceedings from the traditional elders dated 19/05/11, a sale of cows acknowledgment dated 14.03.2011 and another letter from the elders to the D.O. , Taranganya, dated 23.06.2011, all concerned with his grievances as PExh. Nos. 1, 2,3 and 4 respectively.
13.The 2nd defendant in his evidence in defence, DW2, Charles Kenega, denied being a sungu sungu or one of those who went to PW2's home to seize the cows herein. He however confirmed that he, being an elder from the area, is aware that the plaintiff's cows were seized on allegation that they were Gentegai's. That during the community policing meeting that was held to deliberate over the issue and after the seizure of the cows, the plaintiff herein protested claiming that the cows were his and not Gentegai's. He produced the proceedings of the community policing meeting held at Ikerege Chief Camp on 05.03.2011, which was also confirmed by DW5, Omae Mwita, as DEXH. No. 1. He denied having been involved in the matter; neither in seizing the cows nor in the decision that was made after the seizure. He denied being present at the community policing meeting that made the decision.
14.The represented parties herein i.e. the plaintiff and the 1st defendant, filed and, I do believe, exchanged the filed written submissions. There were no submissions filed or made for or by the 2nd defendant.
15.For the plaintiff, it was submitted that the defendants herein took the law into their own hands by deciding to investigate the theft, came up with the suspects, tried the case, made an award and executed their own decree. That the actions of the defendants is unacceptable in the wake of the present Constitution that holds the sanctity of private property and individual rights. That the actions by the defendants breached the plaintiff's rights.
16.In response, learned counsel for the 1st defendant herein, Agure Odero, submitted that this suit is a mere ploy by the plaintiff and his witness to be compensated unjustly. He further submitted that it defeats logic how three herds of cattle and a calf would be valued at Kshs. 47,300/= without any expert opinion.
17.The 1st defendant's bar was broken into and stolen from. He reported to the community policing who conducted their own inquiries, came up with suspects and decided to seize the plaintiff's cows., deliberated over the matter as confirmed by Dexh. No. 1, in the presence of the plaintiff and the 1st defendant. The minutes of the meeting are clear that despite the plaintiff informing them that the cows were his, having bought them from Gentegai Chunchuria, it still went ahead to hand over the cows to the 1st defendant.
18.Further evidence produced by the plaintiff, PEXH. Nos. 1 - 4, confirms that he was not satisfied with the resolutions of the community policing.
19.The minutes (DEXH. No. 1), indicates that the meeting was held at the Chief's camp on 05.03.2011, almost 2 years after the loss of the 1st defendant's items.
20.The 1st defendant in his evidence confirmed that the Provincial Administration (currently National Government Administrative Officers) recognises and relies on such community policing meetings to resolve such disputes as his. He stated as follows during his re-examination:
21.That was also the evidence of DW3, a community policing leader, when he stated during his cross-examination that:
22.The plaintiff appears to have also recognised this mandate when he opted to participate in the group's meeting and deliberations as confirmed in the minutes DEXH. No. 1 where he was given a hearing and a deliberation made on his grievances. The minutes state as follows:
23.Which translates into English as follows:
24.DExh. No. 1 therefore proves to the required standard on a balance of probability that the plaintiff was present and even participated in the meeting. He signed the minutes with an I/D number by indicating that he was present. Otherwise, he ought to have filed this suit immediately or reported the unlawful seizure, nay theft, of his cows to the police immediately without participating in the community policing deliberations over the same.
25.One of our mandates as the Judiciary under Article 159(2)(c) of the Constitution of Kenya, 2010, is to promote alternative forms of dispute resolutions including reconciliation, mediation, arbitration and traditional forms of dispute resolution.
26.Having been confirmed that there was a dispute where the 1st defendant reported to the community policing that his items had been stolen, and that some people were being suspected; then I do believe that any alternative form of resolving the dispute should be promoted and encouraged. The government through the provincial administration appear to have recognised the community policing herein as a dispute resolution mechanism. The plaintiff also having been confirmed to have been present, appears to have recognised their process.
27.My opinion is however that the community policing processes that led to their determination was not fair to the plaintiff. It contravened his rights to a fair trial and the right to acquire and own property. As to whether the community policing is an unlawful group, or illegal., vigilante etc. is surely debatable. I am of the opinion that the it could have not have sat at the Chief's compound to conduct their businesses if at all it is an illegal or unrecognised outfit.
28.Both counsels herein, however, referred me to the provisions of the Constitution.
29.Learned counsel for the Plaintiff, Mr. Abisai, quoted the provisions of Article 159 of the Constitution which provides as follows:Judicial authority.159. (1)Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(a)justice shall be done to all, irrespective of status;(b)justice shall not be delayed;(c)alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);(d)justice shall be administered without undue regard to ocedural technicalities; and(e)the purpose and principles of this Constitution shall be protected and promoted.(3)Traditional dispute resolution mechanisms shall not be used in a way that—(a)contravenes the Bill of Rights;(b)is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or(c)is inconsistent with this Constitution or any written law.
30.Counsel then submitted that:i.The 'sungu sungu', 'Iritongo' or any other traditional court mentioned by the Defendants in the defence is not and was not a court in terms of Article 159 (1) of the Constitution because they are not gazetted courts and cannot therefore purport to usurp the functions of the Judiciary,ii.Whatever the traditional 'court' did was repugnant to justice and morality. They could not take 3 heads of cattle from the plaintiff on the guise that the animals were purchased from a suspected thief.
31.According to the learned counsel for the plaintiff, the community policing herein is a vigilante group which if allowed to assume the status of a court of law shall lead the community to descend into anarchy.
32.Mr. Agure for the 1st defendant on the other hand quoted the Preamble to the Constitution which he submitted, underscores the aspirations of our people covering both ethnic and governance, including the alternative dispute resolution mechanisms being applied to solve communal conflicts. That community policing is one such mechanism which in Kuria, is recognised by the Provincial Administration.
33.Whereas I do agree with the learned counsel for the Plaintiff that Article 159(1) of the Constitution, 2010, is clear that the Judicial Authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under the Constitution; the very same Article also mandates the courts and the tribunals to promote alternative forms of dispute resolutions.
34.I also agree that the processes employed to resolve the 1st defendants dispute appear not to have been fair, contravened the plaintiff's rights to a fair process and was repugnant to justice.
35.That is simply an opinion from my part. Whether the processes herein were fair or not; whether the same are repugnant to justice and or unconstitutional, as argued by the learned counsel herein; or whether the community policing system of resolution of disputes forms part of the alternative dispute resolution systems which should be promoted by this court as provided for under Article 159 of the Constitution requires the interpretation of that article of the Constitution. We are still in the period of a constitutional transition. Such terms or provisions such as in Article 159 (2)(c) did not previously exist in our former constitution and had not therefore formed part of our constitutional law or interpretation before. Justice Gikonyo of the High Court sitting in Republic v Joktan Mayende & 4 Others (High Court of Kenya at Bungoma Criminal Case No. 55 of 2009) when interpreting the phrase, 'compelling reason' as used in Article 49(1)(h) of the Constitution of Kenya, 2010 in December 12, 2012 stated as follows:
36.Alternative forms of dispute resolution', ' reconciliation', 'mediation', 'arbitration', ' traditional dispute resolution mechanisms' and 'repugnant to justice' as used in the article; and which might be relevant in the dispute herein need to be interpreted with wise circumspection in order that the meaning and scope assigned to the words, terms and phrases give effect to the objects, purposes and values of the Constitution as submitted by the learned counsel for the 1st defendant.The scope of the terms/ words '
37.The arguments by the learned counsel calling for this court's interpretation or enforcements of the provisions of Article 159 or the preamble to the Constitution, however appears misplaced as this court has got no jurisdiction to interpret or to enforce the Constitution. Such interpretation of the terms or the jural words can only be done by the High Court as provided for in Article 165 (1)(3)(d) of the Constitution, which provides as follows:
37.I would have referred the matter to the High Court for the above interpretations, if only the plaintiff would have treated his claim herein seriously.
38.The plaintiff's claim of Kshs. 47,300/= is in the nature of special damages.
39.It is trite law that such claims for special damages must not only be particularly pleaded, but must be specifically proved. There are several and countless judicial authorities on the same including the Court of Appeal decisions in Savannah Development Co. Ltd Vrs Posts And Relecommunicatons Employees Housing Co-op Society Ltd { Civil Appeal No. 160 of 91 (UR)}, Jivanji Vrs Sanyo Electrical Company LIMITED (2003) 1 EA 98 and KENYA SHELL LTD VRS BENJAMIN K. KIBIRU (Civil application no. NAI 97 of 1986); the High Court decisions in SAMWEL WANJOHI AND ANOTHER VRS MICHAEL NDIRANGU KARIUKI ( NAKURU HCCA NO. 20/2001 - reported in (2005) eKLR, COLURPRINT LTD VRS PRE-PRESS PRODUCTION (2003) 1 EA 45, SOUTH NYANZA SUGAR CO, LTD VRS ESTHER AUMA OKAL (KISII HCCA 104/2008), KPLC LTD VRS DIANA ACHIENG OGUNYO ( 2012) eKLR and the oftenly cited/ quoted famous Lord Goddard CJ's in BOHHAM-CARTER VRS HYDE PARK HOTEL LTD (1948) 64 times Law Report, 117.
40.This requirement is not merely a procedural necessity but is a mandatory requirement as held in a recent appeal decision by Korir-Lagat, J, sitting at the High Court at Kisii in KPLC Ltd Vrs Diana Achieng Ogunyo ( supra); where she quoted Savannah Development Co. Ltd Vrs Posts and Relecommunicatons Employees Housing Co-op Society Ltd, supra, where the learned judges of appeal held as follows on this requirement:
41.The learned defence counsel has in fact raised the issue in his written submissions. He submitted that it beats logic that the three heads of cattle being claimed by the plaintiff herein would be valued at Kshs. 47,300/= without proof.
42.The plaintiff herein claims for a refund of 3 heads of cattle and a calf or the equivalent of Kshs. 47,300/= He has however failed to particularise his claim in the plaint so as to make us know how he arrived at the figure.
43.In Samwel Wanjohi and Another Vrs Michael Ndirangu Kariuki, supra, where the respondent failed to plead and prove the cost of the damage to his building and loss of income, Kimaru, J., reiterated the requirement that such kinds of claims must be specifically pleaded and during the hearing of the case, specifically proved.
44.Mbaluto, J., made a similar holding in Colourprint Ltd Vrs Pre-press Production, supra.
45.Makhandia, J. ( as he then was) also held as follows at page 9 of a Judgment in a recent appeal in South Nyanza Sugar Co, Ltd Vrs Esther Auma Okal, supra:-
46.The plaintiff could have been said to have specifically pleaded his claim herein by pleading how he arrived at the figure of Kshs. 47, 300/= for the 1 cow, 2 bulls and the calf. Then during the hearing, he was to adduce evidence to prove the same. For example; of the Kshs. 47,300/= , what was the cost of the calf? or of each of the bull, the cow? How old were the bull or the cow? What was their sizes? How much does each cost at the prevailing market value? The plaintiff pleaded at Paragraph 5 of the plaint that he was claiming for the return of the 3 heads of cattle plus the calf born after the seizure by the defendant or their equivalent in market value and damages for loss of user. He did not however specifically plead the market value for each of the head, and also failed to prove the value during the hearing.
47.During his oral evidence in court, he valued the cows at Kshs. 75,000/=. There was however no evidence presented to prove the same. Some other documentary exhibits produced herein such as PEXH. No. 3, what appears to be an ambiguous statement of sale, dated 14.03.2011, but not signed gives a different value for two cows and no bull nor calf. The plaintiff in his oral evidence/ testimony during cross-examination, in fact, denied knowing Gentegai who is alleged to have sold to him the cows on 14/3/2011 as indicated in the document, PEXH. No. 3.
48.With these kinds of pleadings and evidence, it cannot be said that the plaintiff has complied and fulfilled the requirement herein of specifically pleading his clam for special damages; and during the hearing proving the same specifically with a degree of certainty.
49.The plaintiff was represented throughput the trial herein. He must understand that if he brings actions for damages, then it is up to him to prove the damages. It is not enough to just write in the Plaint that he is seeking Kshs, 47,300/= for 2 bulls, a cow and a calf; and then seek to prove orally that the damages suffered is worth Kshs. 75,000/=. He has to particularise his claim and prove the same.
50.The plaintiff's claim of Kshs. 47,300/= herein is therefore not supported by any evidence. As it is, the plaintiff expects me to pluck a figure from the thin air and award him Kshs. 47,300/= damages for the loss of his cows herein. How am I going to arrive at that award? Whereas I may still sympathise with the manner in which he was treated by the policing group herein, I cannot enter judgment in his favour for the amount sought, given that he has failed to prove that he suffered loss to the tune of that amount; and also given that he appears to have subjected himself to the unfair and unjust process that led to him suffering the loss.
51.The review of the process, and whether it falls within the meaning of alternative form of dispute resolution as envisaged under Article 159 of the Constitution, as I have already held hereinabove, requires the High Court interpretation of the provisions of that Article. Even if the entire process were to be found unlawful after the interpretation, then I would have not plucked the figures from the thin air so as to order for his compensation as prayed.
52.If the plaintiff, would have prayed for a declaration against the entire process that led to his deprivation of the cows herein, and if he could have joined the community policing group members as parties herein; then I would have still referred the matter to the High Court for interpretation of the constitutional issues arising therefrom; for purposes of that prayer for declaration only.
53.As for award of damages in compensation, that can only be upon specific proof of the actual damages suffered, which has not been done herein. And as held in Kplc Ltd Vrs Diana Achieng Ogunyo ( supra); where Savannah Development Co. Ltd Vrs Posts and Telecommunicatons Employees Housing Co-op Society Ltd, supra,Iwas quoted, the requirement to specifically plead and during hearing, to specifically prove with a degree of certainty the special damages i.e. actual loss in monetary value, is not a mere procedural technicality, the provisions of Article 159(2)(d) of the Constitution, 2010, or sections 1A or 1B of the Civil Procedure Act cannot therefore save the plaintiff's claim herein. I do therefore hereby dismiss the plaintiff's suit.
54.The defendant cannot however be said to have won the case. It is only that the plaintiff failed to quantify and specifically prove his claim of Kshs. 47,300/= and neither the plaintiff, nor the defendants herein can be said to have been right. The whole dispute herein, however, revolves around the activities of the Community policing group and not the 1st defendant herein who appears to have been an aggrieved individual who took his dispute to the group. It was prudent that the community policing group members be joined as parties to this suit.
55.I do therefore order that each party shall therefore bear his own costs.
DATED, SIGNED AND DELIVERED AT KEHANCHA IN OPEN COURT THIS 22ND DAY OF NOVEMBER ,2013ALOYCE-PETER-NDEGEAG. PRINCIPAL MAGISTRATEIn the presence of;Plaintiff's counsel: N/A1st Defendant's counsel: N/APlaintiff: Present1st Defendant: Present2nd Defendant: Present