The Da Gama Rose Group of Companies v Stokman Rozen Kenya Limited
The bottom line
#Kenya's Court of Appeal confirmed that paying part of a deposit and acting on a deal can create a binding contract, even if full terms were never paid.
What this practically means
#Executive summary
#Key legal issues
#Existence of a binding contract
A binding and enforceable contract existed despite payment of only half the stipulated deposit
The confirmed order of 13th June 1997 (backdated revision signed 5th September 1997) was an offer accepted by signature; payment of the 5% deposit was part payment of consideration and part performance. Correspondence referred to 'terms of the contract' without rebuttal, establishing consensus ad idem. Failure to pay the full 10% did not prevent contract formation.
Maintenance costs in animated suspension
Costs of preserving plants by refrigeration were properly chargeable to the appellant though not provided for in the contract
Preservation was the rational and prudent response to the appellant's delay; the respondent informed the appellant of the costs and no objection was raised, from which the court presumed acceptance of responsibility. Had the appellant collected the plants in time, the costs would have been avoided.
Admission of NLG 170,719 and special damages
The sum was unequivocally admitted in writing, so strict proof of special damages was unnecessary
The Managing Director's agreement to the amount in the letter of 2nd December 1999, and the absence of any denial or challenge to the computation, amounted to an unequivocal admission. Where a sum is admitted, the respondent need not particularise how it was composed.
Rate of currency conversion
Conversion at the rate obtaining at the time of filing suit was reasonable and logical
The guilder was valid currency when the suit was filed but had been replaced by the Euro by judgment. Using the filing-date rate was ascertainable via the Central Bank and obviated rendering the judgment ineffectual by ordering payment in a defunct currency.
Counterclaim for refund of deposit
Counterclaim properly dismissed; the deposit was set off against amounts owed
The amount claimed was subsumed within the NLG 170,719 properly owed. There was no forfeiture; the deposit was set off against money used to grow and preserve plants the appellant ordered but never collected. The appellant's own conduct frustrated the contract.
Legal principles established
#- A first appellate court must re-appraise, re-analyse and re-evaluate the evidence and arrive at its own independent decision
- Special damages must be specifically pleaded and strictly proved, but where a sum is expressly admitted, particularisation and strict proof are unnecessary
- Part payment of consideration together with part performance evidences a binding contract
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- 3.Judgment of the High Court (NLG 170,719 converted at the rate at filing suit) affirmed
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 1168 of 2001
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court's appellate jurisdiction (Rule 29(1) of the Court of Appeal Rules invoked for re-evaluation of evidence)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Da Gama Rose Group of Companies v Stokman Rozen Kenya Limited", Case Analysis (2015). Civil Appeal No. 270 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/962/eng@2015-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.