Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone [2010] KECA 96 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed an agent's right to 10% commission on a Tanzania compensation settlement, holding the payer bore the burden of proving what it had paid.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's claim was one for special damages requiring strict proof
- 2.Whether the settlement agreement with the Government of Tanzania was reached through the respondent's effort and influence
- 3.Whether the appellant had been paid by the Government of Tanzania under the settlement agreement
Key legal issues
#Nature of the respondent's claim - special damages or contractual fee
The claim was for an agreed contractual fee, not special damages; strict proof was not required and nothing turned on the pleading point.
The contract was for performance of a specific assignment at an agreed fee. The claim was for that fee plus interest, a liquidated contractual sum. The Court noted the trial judge confused liquidated claims with special damages, but held the claim was neither; evidence of contract, terms and amount due sufficed.
Whether the settlement was procured by the respondent's efforts
Yes - the evidence showed the respondent negotiated with Tanzanian officials throughout, and the appellant, being a prohibited immigrant until 11th February 1993, could not have negotiated directly.
Letters from Tanzanian officials (Maganga) were addressed to the respondent as the appellant's representative, and correspondence by the appellant was copied to the respondent, showing recognition of his role. The appellant could not have negotiated directly while a prohibited immigrant; the first ground of appeal had no basis.
Whether the appellant had been paid under the settlement
Payment was a matter especially within the appellant's knowledge; under section 112 of the Evidence Act the burden lay on him, and having offered no explanation, the trial judge's finding stood.
The settlement provided for a specific sum; compilation of the respondent's commission was based on the agreed sum. The appellant concealed the settlement memorandum from the respondent and evinced an intention not to perform, and should not benefit from his own breach.
Legal principles established
#- On a first appeal, the appellate court has a duty to re-evaluate the entire evidence and draw its own conclusions without overlooking the trial court's conclusions.
- A liquidated contractual claim for an agreed fee is neither special damages nor liquidated damages in the technical sense; the plaintiff need only prove the contract, its terms, and the amount due on breach.
- Where payment is a matter especially within the knowledge of a party, the burden of proving the extent of payment rests on that party under section 112 of the Evidence Act.
- A party who evinces an intention not to perform his part of a bargain should not be allowed to benefit from his own breach.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 5972 of 1993
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statute (not expressly stated in the judgment)
Relief refused
#Setting aside the High Court judgment awarding the respondent 10% commission with interest and costs
The Court found no basis to fault the trial judge on either the finding that the settlement was procured by the respondent's efforts or on the finding as to payment
Costs
Appeal dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly it is hereby dismissed with costs to the respondent.
it is our duty to look at the entire evidence which was presented before the trial court, re-evaluate it and draw our own conclusions from it without overlooking the conclusions of the trial court on the issues
The claim was liquidated but not in the nature of special damages.
He should not be allowed to benefit from his own breach.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone [2010] KECA 96 (KLR)", Case Analysis (2010). Civil Appeal No. 171 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/96/eng@2010-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.