A woman who sued her neighbour over a Sh500 phone battery has ended up with the bill of the costs after two years of legal battles.
The dispute started in 2016, when Muthaye Musyimi, from Kiseuni in Kitui County, took her mobile phone to the shopping centre for the battery to be charged.
When she went to collect the phone, the battery was missing and it was later established that Kamene Mwenga’s daughter had taken it. The battery was returned and an apology tendered.
But Ms Musyimi was not satisfied. She reported her neighbour to village elders, the assistant chief and the chief.
The assistant chief told the two to forgive each other, but Musyimi was not happy with the decision and went to the chief, who upheld his deputy’s verdict.
Court records show that Musyimi appeared before the chief three times. The last time she appeared on May 1, 2016, she demanded that Ms Mwenga pay her Sh13,000. The chief ruled that a goat was sufficient, but Musyimi declined the offer.
The chief summoned the two again but Musyimi did not appear. She claimed the dispute had cost her Sh17,300.
She filed a case before the magistrate’s court, seeking to have Mwenga compelled to pay her the goat and the money she allegedly used to pursue the stolen battery.
Mwenga did not file any reply and did not appear in court on the day of the hearing and the magistrate allowed Musyimi’s plea.
This prompted Mwenga to challenge the magistrate’s decision in the High Court, arguing that Musyimi had failed to prove her allegations.
In her reply before Justice Lilian Mutende, Musyimi argued that her neighbour was given a chance to argue her case but did not attend court.
Justice Mutende observed that Mwenga did not explain why she had failed to appear before the magistrate and that she did not seek the court’s intervention to set aside the judgement.
The judge also noted that although Musyimi had asked the court to allow her to recoup the cost she incurred before the chief, she did not tender any proof of the expenses.
“Special damages must not only be specifically pleaded, they must also be strictly proved with as much particularity as circumstances permit,” the judge ruled.
Burden of proof
She added: “The burden of proof lay with the respondent. She was obligated to tender evidence against the appellant to prove the case. However, this was not done.”
Mutende set aside the lower court’s orders and ordered that Musyimi pay Mwenga the costs incurred at both courts.
“I find the claim having not been proved. Therefore, I do set aside the judgement entered. The case stands dismissed,” she ruled.