Mwai v Hashid & another (Civil Appeal 39 of 1995) [1995] KECA 155 (KLR)
The bottom line
#A Kenyan court auction buyer with no notice of disputes keeps the goods, and special damages claims fail without hard evidence of actual losses.
What this practically means
#Executive summary
#Key legal issues
#Whether title to the lorry passed to Hashid at the auction sale despite the pending appeal
Title passed to Hashid on the fall of the hammer at the lawful auction on 29th September 1990; the later Court of Appeal decision of 20th November 1991 did not bind him as he was not a party to it.
The attachment was upheld by Khamoni J after objection proceedings, giving Victoria Enterprises a lawful court order to sell. There was no stay of execution, since an appeal does not automatically stay. Under section 58 of the Sale of Goods Act, the auction sale was complete on the fall of the hammer, before the appellate decision. Hashid, a bona fide purchaser without notice of encumbrances, took title before 20th November 1991 and the decision in CA No 14 of 1991, made in his absence, could not bind him.
Whether the award of special damages for loss of user was sustainable
The award of Shs 2,500 per day for 365 days was set aside because there was no tangible evidence proving the loss; special damages must be pleaded and strictly proved.
The first respondent merely asserted a gross daily loss of Shs 10,000 and net loss of Shs 5,000, and the judge awarded Shs 2,500 per day for 365 days. The Court restated the rule in Shabani vs Nairobi City Council, quoting Goddard CJ in Bonham Carter vs Hyde Park Hotel, that plaintiffs must prove their damage and cannot merely throw particulars at the court. Since there was no tangible evidence supporting the figure, the item of damages was disallowed.
Whether the superior court's valuation of the lorry at Shs 585,000 should be disturbed
The valuation stands; forced auction prices are no guide to real market value and the unchallenged valuation evidence of Mr Khan (PW 20) was accepted.
The appellant argued that Hashid should recover only the auction price plus improvements. The Court rejected this measure, holding that value cannot necessarily be the auction price plus what was put in the lorry, since forced auction sales are no guide to real market value. The valuation evidence of Mr Khan was not effectively challenged in cross-examination and no suggestion was made that it was over the mark, so the Court saw no reason to differ with the learned judge.
Legal principles established
#- A Court of Appeal decision does not bind a person who was not a party to that appeal
- Filing an appeal does not automatically operate as a stay of execution
- A bona fide purchaser of property at a lawful court auction sale, without notice of encumbrances, acquires good title upon completion of the sale
- Special damages must be both pleaded and strictly proved
Court orders
#- 1.The appeal on the issue of ownership or title to the lorry is dismissed
- 2.The appeal on the issue of the value of the lorry is dismissed
- 3.The appeal on the issue of special damages for loss of user is allowed and the loss of user figure awarded is set aside
- 4.Judgment for the first respondent as against the appellant in the sum of Kshs 585,000/= with interest at 14% per annum from the 27th day of November, 1991 until payment in full
- 5.The appellant pays two-thirds of the costs of appeal to the first respondent
- 6.No order as to the costs of the second respondent
- 7.The cross-appeal is dismissed with costs
- On appeal from
- High Court of Kenya
- HCCC No 108 of 1989
- Jurisdiction invoked
- Appellate jurisdiction under the Court of Appeal Rules (appeal against decision of the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwai v Hashid & another (Civil Appeal 39 of 1995) [1995] KECA 155 (KLR)", Case Analysis (1995). Civil Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/155/eng@1995-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.