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Court of AppealPartially AllowedNot stated in the judgment

Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR)

Court of Appeal of Kenya
9 May 2014
JMJ. W. MweraDMD. K. MusingaWilliam OukoW. Ouko
6,502 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal threw out Shs.130 million awarded to a former detainee because he never proved his claims with actual evidence, not just lawyer arguments.

What this practically means

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Executive summary

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The Court of Appeal (Mwera, Musinga and Ouko JJA) allowed the appeal of former President Daniel Toroitich arap Moi against a High Court judgment (Gacheche J, 6 April 2011) awarding Mwangi Stephen Muriithi Shs.50 million punitive damages and Shs.80,161,720/= for financial loss, plus compound interest at 12% per annum from 1 July 1982, over his 1982 detention and the alleged sale of properties of three companies in which he held shares. The court held that Section 84 of the former Constitution conferred original jurisdiction on the High Court over fundamental rights claims, but that the legality of the detention had already been settled by Chesoni J in the habeas corpus case of Muriithi v Director of Criminal Investigations; that ruling was unappealed, so the Section 72 declaration was res judicata and was set aside. On the Section 75 claim, the court applied the separate legal personality principle: a shareholder owns shares, not company property, though he may petition over risk to his shares. Crucially, the court held that a claimant must prove his case by evidence on a balance of probabilities even where the defendant files no replying affidavit, and that submissions do not constitute evidence - the trial judge erred in lifting the award figures from counsel's submissions. The 1st respondent's failure to produce incorporation certificates, shareholding documents, titles or evidence of the sales was fatal. Raymark Ltd, which proved the Solai land was its own, was vindicated: its cross-appeal succeeded with costs while the 1st respondent's cross-appeal (seeking 35% commercial interest) was dismissed. All awards, declarations, interest and costs orders against the appellant and 2nd respondent were set aside, with costs of both courts awarded to the appellant and the 2nd respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court had jurisdiction to entertain the petition challenging the legality of the 1st respondent's detention
  2. 2.Whether the legality of the detention was res judicata having been settled in the Muriithi habeas corpus case before Chesoni J
  3. 3.Whether a shareholder may petition over loss of company property, and whether the High Court had jurisdiction over the Section 75 deprivation of property claim
  4. 4.Whether the limitation period barred the petition brought 28 years after the detention
  5. 5.Whether the 1st respondent discharged his burden of proof where the appellant filed no replying affidavit
  6. 6.Whether submissions can substitute for evidence as a basis for awards of damages and interest

Key legal issues

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01

Jurisdiction of the High Court over the constitutional petition

Holding

The High Court had jurisdiction under Section 84 of the former Constitution to hear the petition alleging breaches of Sections 72 and 75; however, it had no jurisdiction to declare the detention illegal as that issue was res judicata following the Chesoni J ruling in the Muriithi case

Reasoning

Section 84(1) conferred original jurisdiction on the High Court over alleged contraventions of Sections 70 to 83, independently of Section 60(1). But the legality of the detention had been determined by Chesoni J in a habeas corpus application; that ruling was never appealed or reviewed. Reopening the same issue between effectively the same parties offended res judicata, so the declaration under Section 72 was set aside.

p. 9
02

Capacity of a shareholder to claim for company property

Holding

The 1st respondent, as a shareholder, could not claim the companies' properties, but could invoke Section 75 in respect of his property in the shares; the High Court was entitled to consider the Section 75 claim

Reasoning

Applying the separate legal personality principle in Salomon v Salomon, a shareholder holds property in shares entitling him to vote and elect directors, but has no ownership of company assets. He could have filed a derivative action under the Companies Act but chose the petition route, which the court did not fault; Section 84 permits relief 'without prejudice to any other action lawfully available'.

p. 9
03

Limitation for constitutional petitions

Holding

No statute or past case sets a time limit for seeking redress for breach of fundamental rights, but a petitioner who delays must explain the delay to the court's satisfaction

Reasoning

The court endorsed the trial judge's statement that where a petitioner is said to have taken his sweet time, the burden lies on him to give a good reason for moving late. The six-year delay from 2003 to 2009 was accepted as reasonably explained, though the court noted the petition was directed at the wrong person - the appellant rather than the Minister who issued the detention order on behalf of the State.

p. 9
04

Burden of proof despite absence of a replying affidavit

Holding

The 1st respondent failed to discharge his burden of proof; the trial judge erred in deeming the pleaded facts admitted merely because the appellant filed no replying affidavit

Reasoning

Sections 107, 108 and 109 of the Evidence Act place the burden of proving asserted facts on the claimant. Documentary evidence - certificates of incorporation, memoranda and articles, shareholding particulars, titles, and evidence of the sales - was required. Even in formal proof proceedings where a defendant does not appear or defend, the trial court must examine the evidence and dismiss the claim if it falls short of the standard of proof on a balance of probabilities.

p. 11
05

Submissions as a source of awards

Holding

The trial judge erred in lifting the figures of Shs.80,161,720/= and Shs.50 million punitive damages and the compound interest award from the 1st respondent's submissions; submissions are not evidence

Reasoning

Having found that the 1st respondent proved nothing by evidence, the court traced the awards to counsel's submissions, which are merely parties' 'marketing language'. Cases may be decided on evidence alone without submissions. Damages and interest not pleaded or proved cannot be awarded.

p. 12
06

Status of the 2nd respondent (Raymark) and the Solai land

Holding

The 2nd respondent was not a busybody; the Solai land LR No. 11793 was a real issue and the 2nd respondent came to court to protect its interest, so it should not have been condemned in costs

Reasoning

The 1st respondent had claimed in his petition that LR No. 11793 Solai belonged to Mokamu Ltd. The 2nd respondent swore on affidavit that the land was its own and never Mokamu's; this was not denied and no documents were produced to the contrary. The burden lay on the 1st respondent to prove ownership by Mokamu, which he did not. Its cross-appeal was therefore allowed with costs.

p. 11

Legal principles established

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  • The legality of a detention settled by a High Court ruling not appealed or reviewed is res judicata and cannot be reopened before another judge of the High Court
  • A claimant must prove his claim by evidence on a balance of probabilities even where the defendant files no replying affidavit or defence; the absence of rebuttal does not relieve the claimant of the burden of proof
  • Submissions do not constitute evidence and cannot take the place of evidence in proof of a claim
  • A shareholder has property in shares but no ownership of or right to the properties of the company, which is a separate legal entity
  • Section 84 of the former Constitution conferred original jurisdiction on the High Court to hear and determine claims of violations of fundamental rights under Sections 70 to 83

Court orders

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  1. 1.The two declarations made in favour of the 1st respondent under Sections 72 and 75 of the Constitution are set aside
  2. 2.The two sums awarded representing financial loss and punitive damages are set aside
  3. 3.The orders on costs and interest are set aside
  4. 4.Costs of this appeal and the court below to be paid by the 1st respondent to the appellant
  5. 5.The 2nd respondent's cross appeal is allowed with costs here and in the court below
  6. 6.The 1st respondent's cross appeal is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JM
majority
DM
majority
William Ouko
W. OukoJA
Currently serving
majority
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal from a High Court constitutional petition; the court exercised appellate jurisdiction following Selle v Associated Motor Boat Co Ltd, without citing a specific statutory basis for the appeal

Relief refused

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The 1st respondent's cross appeal seeking commercial rate interest of 35% per annum

The cross appeal was dismissed; the court had already found the underlying awards unsustainable for lack of proof

p. 12

Costs

Costs of the appeal and the court below to be paid by the 1st respondent to the appellant; the 2nd respondent's cross-appeal allowed with costs here and in the court below; the 1st respondent's cross-appeal dismissed with costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In sum, the legality of the 1st respondent's detention was res judicata and the later finding by Gacheche, J. was of no moment.
p. 9res judicata in fundamental rights litigation
The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.
p. 11burden and standard of proof
Submissions, we reiterate, do not constitute evidence at all.
p. 12submissions are not evidence
But a shareholder has no ownership or right to the properties held by the company – a legal entity, separate and distinct from its shareholders.
p. 9separate legal personality; shareholder rights
(f) The 1st respondent's cross appeal is dismissed with costs.
p. 12final orders
(d) Costs of this appeal and the court below to be paid by the 1st respondent to the appellant.
p. 12costs - final orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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

Cite this brief

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Cite this brief

Caselaw, "Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/642/eng@2014-05-09

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