The Court of Appeal has dismissed a case by a Garissa trader who sought Sh407 million from the government, claiming that Kenya Defence Forces (KDF) soldiers burnt down his premises over a decade ago.
A bench three judges agreed with the High Court decision that Garissa Maize Millers had failed to prove that his go-downs, stores and vehicles were destroyed by KDF in 2012.
Further, the bid by the trader to table documents to prove his claim was an afterthought, the court ruled.
The trader moved to court in 2013 accusing KDF soldiers of burning down his business including the premises in Garissa town, four vehicles, office furniture and bales of maize.
The destruction, according to Hussein Ahmed, was done by KDF in revenge for the killing of three soldiers in 2012.
He said the decision was suctioned by the government. He demanded payment of Sh407 million for the destruction but the case was dismissed by Justice George Dulu in 2017. He immediately filed the appeal.
“Having carefully considered the nature of the additional evidence vis-à-vis the nature of the claim before the High Court and the learned Judge’s findings, we are inclined to conclude that the applicant is seeking a second bite of the cherry before the trial court by filling up the gaps which only became evident to the applicant after delivery of the judgment,” Justices Daniel Musinga, Wanjiru Karanja and Gatembu Kairu ruled.
Mr Ahmed moved to the court of appeal saying after the premises were burnt down, he did not have documents to quantify the damage suffered.
Among the documents he wanted to table were bills of quantities, which he said prove the existence of the factory that was allegedly burnt down, annual reports of the company and invoices.
He said although he had the documents during the hearing before the High Court, he forgot to table them.
The court, however dismissed the plea saying the documents were in existence when he filed the case and the case remained pending for about three years.
They said there is no plausible explanation as to why the said documents were not produced in court as evidence.
The government had denied Mr Ahmed’s claims saying he was running a posho mill business on the strength of a small industry permit from the Municipal Council of Garissa.
https://www.businessdailyafrica.com/bd/news/counties/court-dismisses-trader-s-sh407m-suit-against-kdf-3612390
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