Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 229 of 2001· [2007] KECA 320 (KLR)

Industrial and Commercial Development Corporation v Sum Model Industries Limited [2007] KECA 320 (KLR)

Court of Appeal of Kenya
8 June 2007
3,276 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal cut a Kshs.8.5 million damages award to Kshs.2.2 million because the company couldn't prove its losses with evidence.

What this practically means

#

Executive summary

#
The Court of Appeal (Omolo, Bosire and Githinji, JJA) partly allowed ICDC's appeal against a High Court judgment (Mbogholi Msagha, J) awarding Sum Model Industries Limited special damages, daily loss-of-business payments, and interest after the appellant forcefully placed the respondent's Busia bakery under receivership and auctioned its equipment. The Court rejected the grounds challenging service of summons, holding that a defendant who enters appearance unconditionally and litigates without protest cannot raise the issue as an afterthought, and that failure to serve summons within the stipulated period does not necessarily render proceedings null and void. It set aside the Kshs.5,000 per day loss-of-business award because internal documents showed the bakery had ceased operations before receivership and thus could not have lost business. On special damages, it applied its own precedent in Timsales v Up & Down Saw Mills, using the new-machine value to compute the undersale at Kshs.2,024,970, but disallowed the claim for unaccounted-for machines for want of evidence. It adjusted the excess-funds head to Kshs.90,168.90 and confirmed Kshs.120,000 for premises damage, reducing the total award to Kshs.2,235,138.90. Interest was varied to run from the date of judgment at 18% per annum rather than from the date of the suit, owing to the unexplained delay in effecting service. The appellant was awarded half the costs of the appeal.

Key legal issues

#
01

Effect of non-service or defective service of summons where the defendant entered appearance unconditionally

Holding

The ground fails; the appellant entered appearance unconditionally, filed a defence and participated in the trial without complaint, so the issue is an afterthought

Reasoning

The Court held that a memorandum of appearance was filed, indicating service in accordance with superior court practice, and the appellant never raised the objection at trial. Defective or late service does not automatically nullify proceedings; it depends on the circumstances. Without a record of the summons or evidence on the delay, the Court could not rule without risking injustice to the respondent.

p. 3
02

Whether the daily loss of business award had a factual basis

Holding

The award was set aside because documentary evidence showed the bakery had ceased operations before receivership

Reasoning

The Kshs.5,000 per day figure was not supported by records of sales, prices or overheads. Internal memos showed the factory closed in June 1992 due to electricity disconnection and lack of capital. A business not operating before receivership could not suffer loss of business during receivership, so the award was unsustainable.

p. 4
03

Proof of special damages for undersale and unaccounted-for machines

Holding

Undersale computed at Kshs.2,024,970 using new-machine values; the claim for unaccounted-for machines was disallowed for want of evidence

Reasoning

Following Timsales Ltd v Up & Down Saw Mills, the Court used the new-machine value as the basis of computation. The value of machines at the date of seizure was unavailable because the appellant had seized them, so the Court took the only two acceptable values: purchase value and auction value. The claim for unaccounted-for machines failed for lack of clear evidence.

p. 5
04

Date from which interest should run

Holding

Interest varied to run from the date of judgment rather than the date of the suit, because of the unexplained delay in serving summons

Reasoning

Although interest is discretionary, the unexplained delay of several years in effecting service made it improper for interest to run from the date of the suit. The Court accordingly ordered interest at 18% per annum from the date of judgment until payment in full.

p. 5

Legal principles established

#
  • Failure to serve summons to enter appearance within the stipulated period does not necessarily render proceedings null and void; it depends on the circumstances of each case, and a party who enters appearance unconditionally and participates without objection cannot later complain of the defect
  • Special damages must be both specifically pleaded and specifically proved
  • In assessing damages for seized machinery, the price of a new machine may be taken as the basis of computation notwithstanding that the machine was old

Court orders

#
  1. 1.Allow the appeal in part and vary downwards the sums awarded from Kshs.8,515,060 to Kshs.2,235,138.90
  2. 2.Order interest to run from the date of judgment until payment in full at the rate of 18% per annum
  3. 3.Award the appellant half of the costs of the appeal

Authorities

#

Legislation

  • Civil Procedure RulesOrder V rule 1
  • Civil Procedure RulesOrder IV rules (3) and (4)
  • Civil Procedure RulesOrder 13 rule 1(a)

Cases cited (1)

  • Timsales Limited vs. Up & Down Saw Mills (Kenya) Limited
    (1985) KLR 557
On appeal from
High Court of Kenya, Nairobi
H.C.C.C. No. 3389 of 1994
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution/Civil Procedure regime (not expressly stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Industrial and Commercial Development Corporation v Sum Model Industries Limited [2007] KECA 320 (KLR)", Case Analysis (2007). Civil Appeal 229 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/320/eng@2007-06-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.