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Court of AppealDismissedCivil Appeal No. 88 of 2018· [2019] KECA 341 (KLR)

Mohamed Ahmed Abdun & another v Mini Bakeries (MSA) Limited [2019] KECA 341 (KLR)

Court of Appeal
26 September 2019
WKW. KaranjaSKS. Gatembu KairuFSF. Sichale
3,123 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal ruled that feeling pressured isn't duress; to escape a signed agreement you must protest promptly and act consistently with being coerced.

What this practically means

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Executive summary

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This was a second appeal from the High Court at Mombasa (Njoki Mwangi, J.), which had reversed a Resident Magistrate's dismissal of Mini Bakeries' claim and entered judgment for Kshs.331,880 against the appellants, a branch manager and his father who had executed agreements undertaking to pay a cash shortfall of Kshs.401,860 discovered in an internal audit. The sole issue before the Court of Appeal (Karanja, Gatembu Kairu and Sichale, JJ.A) in a single judgment of the court was whether the agreements were procured by duress. The court restated the law from Nabro Properties Ltd v Sky Structures Ltd, Pao On v Lau Yiu Long and John Mburu v Consolidated Bank: duress is a coercion of the will vitiating consent, and commercial pressure alone is insufficient. On the evidence, the 1st appellant signed the admission agreement on 15th July 2004, before his arrest on 18th July 2004; an OB reference showed the police report was made on 17th July 2004, and the 2nd appellant signed his guarantee separately on 21st July 2004. The appellants paid Kshs.70,000 a month after signing without protest and raised duress only when sued in 2005, having first denied signing at all. Duress was therefore not established to the required standard; the High Court's decision was well founded. The second appeal was dismissed with costs to the respondent. The judgment binds lower courts on the coercion-of-will test and the significance of a party's conduct in alleging duress.

Key legal issues

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01

Whether the payment agreements were procured by duress

Holding

No. The 1st appellant signed on 15th July 2004 before his arrest on 18th July 2004, the 2nd appellant signed separately, and the appellants paid Kshs.70,000 a month later without protest, raising duress only when sued in 2005.

Reasoning

The court reconstructed the sequence of events from the evidence, including the OB reference showing the police report was made on 17th July 2004, after the 1st appellant had signed. Applying the Pao On coercion-of-will test, the absence of protest, the absence of steps to avoid the agreements, and part performance defeated the duress claim. The High Court's finding was well founded and there was no basis to interfere on a second appeal.

Legal principles established

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  • Duress, whatever its form, is a coercion of the will vitiating consent; commercial pressure alone is insufficient and there must be a fact legally regarded as coercion of the will, assessed by reference to protest, available alternatives, independent advice and steps to avoid the contract
  • A party alleging duress must raise it at the earliest opportunity; failure to disclaim an agreement and part performance without complaint until suit is filed weighs heavily against a finding of duress

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Cases cited (6)

  • Nabro Properties Limited vs. Sky Structures Ltd
    [1986] eKLR
  • Pao On vs. Liau Yiu Long
    [1980] AC 614
  • John Mburu vs. Consolidated Bank of Kenya
    [2018] eKLR
  • Ghandhi & another vs. Ruda
    (1986) KLR 556
  • Kenya Commercial Bank Ltd & another vs. Samuel Kamau Macharia & 2 others
    [2008] eKLR
  • Lynch vs. D.P.P. of Northern Ireland
    [1975] A.C. 653
On appeal from
High Court of Kenya at Mombasa
H.C.C.APP. No. 117 of 2008
Jurisdiction invoked
Second appeal under the applicable provisions of the Civil Procedure Act (the judgment does not expressly cite the provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mohamed Ahmed Abdun & another v Mini Bakeries (MSA) Limited [2019] KECA 341 (KLR)", Case Analysis (2019). Civil Appeal No. 88 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/341/eng@2019-09-26

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