Civil_Appeal_158_of_2001 - Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd another[2014 eKLR IN THE COURT OF APPEAL AT NYERI(CORAM VISRAM KOOME

Civil_Appeal_158_of_2001 - Charles Mwirigi Miriti v...

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Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd & another [2014] eKLR IN THE COURT OF APPEAL AT NYERI (CORAM: VISRAM, KOOME & ODEK, JJ.A) CIVIL APPEAL NO. 158 OF 2001 BETWEEN CHARLES MWIRIGI MIRITI ………………….……………… APPELLANT AND THANANGA TEA GROWERS SACCO LTD ……...…… 1 ST RESPONDENT MICHIIMIKURU TEA GROWERS SACCO LTD …….. 2 ND RESPONDENT ( An appeal from the judgment of the High Court of Kenya at Meru (Tuiyot, J.)dated 23 rd April, 2001 in H.C.C.C No. 85 of 2000) ********************* JUDGEMENT OF THE COURT [1] This is a first appeal against the decision of the High Court (Tuiyot, J.) dated 23 rd April, 2001. This Court is required to analyze and re-assess the evidence on record and reach its own conclusion in the matter. It was put more appropriately in Selle -vs- Associated Motor Boat Co. [1968] EA 123 , thus: 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 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” [2] The brief background of this appeal is that the appellant instituted a suit against the respondents before the High Court in Meru seeking inter alia an order of specific performance of an agreement dated 3 rd July, 2000, and in the alternative damages for breach of contract. The appellant is at all material - Page 1/8
Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd & another [2014] eKLR times the registered owner of Plot No. 21 situated within Maua Municipality (suit property); the appellant had charged the suit property to the 2 nd respondent as security for a loan facility which he had obtained from the bank prior to the sale agreement complained about. [3] It was the appellant’s case that vide a written agreement dated 3 rd July, 2000, the 1 st respondent agreed to purchase the suit property for a consideration of Kshs. 8,000,000/=. It was a term of the agreement that the 1 st respondent would pay Kshs. 4,766,135.65/= directly to the 2 nd respondent on or before the 30 th March, 2001; the said sum would offset the outstanding loan and it was also to be considered as part of the purchase price. The balance of the purchase price was to be paid to the appellant on or before 3 rd December, 2001. It was a further term of the agreement that the suit property would be transferred to the 1 st respondent upon payment of the outstanding loan as well as the balance of the purchase price. However, the 1 st

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