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Hotelier spends 25 years in courts seeking Sh47,000

Paul Muhoho @PeopleDailyKe

Defiant, unapologetic, resolute! Spending 25 years in court corridors in an attempt to recover Sh47,500 requires that more.

And Peter Kinyanjui has given nothing less in his pursuit for the seemingly measly amount from a former client, Virginia Waithera, following a fallout over a residential house construction project.

The tribulations Kinyanjui has endured are clear testimony to the slow pace in which the wheels of justice can grind as well as the anti-climax of vexatious litigations that continue to pile a backlog of cases.

“It is not about pride or waste of money. Sacrifices have to be made. The struggle to enforce individual fundamental rights and freedoms must continue,” the 52-year-old father of three told People Daily in Kitengela town, Kajiado county where he currently works.

For his incessant troubles, Kinyanjui left the Court of Appeal last Friday empty-handed and says he is not prepared to pay Waithera —whom he describes as a former family friend— the costs she incurred to defend her alleged breach of contract in the prolonged litigation.

“I will definitely not pay any more money to anyone in connection with that case. I have suffered an injustice before. I was previously fined Sh30,000 at the risk of being jailed for one year. I have had enough,” he lamented during the interview. He said he had engaged a number of lawyers to represent him but the odds were stuck against him.

Court of Appeal. Photo/Courtesy

All this drama started in 1993 when Kinyanjui assisted Waithera to acquire a piece of land in Makongeni, Thika and offered to supervise the construction of her residential house on it.

At some point, however, the two disagreed on the quality of work and usage of building materials.

Waithera then fired Kinyanjui and hired another mason.

Irked by the turn of events, Kinyanjui moved to Thika chief magistrate’s court claiming a refund of Sh67,500 from Waithera, money he spent to buy some building materials in the course of supervising the construction. But his former client denied existence of such transactions and accused Kinyanjui of threatening her.

She claimed Kinyanjui confronted her in the company of three other men and forced her to sign an agreement of indebtedness before an advocate. In the deal, she agreed to pay the first instalment of Sh20,000 and subsequently Sh6,000 per month until payment in full.

Waithera confirmed making the first payment to the advocate but changed her mind later on the basis she did not owe Kinyanjui any money and had only executed the alleged agreement under threat and coercion. Instead, she insisted Kinyanjui was unlawfully holding title to her property and counter-claimed for a refund of Sh20,000 and surrender of the documents.

The trial resident magistrate, Mrs  A Owino, then pointed out that Kinyanjui had filed a separate claim seeking Sh65,000 from Waithera and he had been convicted and sentenced on four criminal counts relating to the dispute. The magistrate found no evidence that he had been engaged by Waithera to supervise the construction of the house or that he had bought building materials.

Kinyanjui suffered a double-blow after the magistrate ruled that he had exerted undue influence on Waithera to sign the alleged agreement and ordered him to repay the Sh20,000.

He was aggrieved by the decision and moved to the High Court, where Justice Ruth Sitati found that he had failed to provide evidence of how much of his own money he had spent to buy building materials used to construct Waithera’s house up to the stage they disagreed.

Interestingly, the judge rejected Waithera’s counter-claim for Sh20,000 refund on the basis that it had been lodged after the six-year deadline permitted for civil actions. Further, the judge found no evidence that Kinyanjui had exerted undue influence on her to pay him the money.

And on Friday, the President of the Court of Appeal, Justice William Ouko, sitting with justices Patrick Kiage and Agnes Murgor laughed off as an exaggeration Kinyanjui’s claim to have spent a whopping Sh6 million to recover the Sh47,500 from Waithera.

They observed his extraordinary resilience in exerting his rights despite losing the plethora of cases before the Thika chief magistrate’s court and the High Court.

“The amount of money that is the subject matter of this dispute may appear insignificant, but Kinyanjui, acting in person, has pursued it with the determination and gusto of the biblical Nehemiah, who, despite discouragement from others, rebuilt the walls of Jerusalem,” the Appellate Bench said when they dismissed his final attempt at a breakthrough in the long-running dispute.

They ruled there was no conflict of interest for Wambui Ngugi and Company Advocates to have drawn the disputed agreement and to subsequently file a defence on behalf of Waithera after he had sued her. The dispute was taken over by another law firm.

Justices Ouko, Kiage and Murgor noted that the first judgment before the Thika magistrate was rendered on September 13, 1994 while the other one was concluded on January 26, 2009. In pursuing a different civil action after a decision had been made, Kinyanjui had engaged in an abuse of the court process, they said.

The Appellate Court said Kinyanjui “was not helpful in providing the details of the decision he alleged was made in his favour and which Justice Sitati failed to consider.”

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