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Court of AppealDismissedCivil Appeal No. 1 of 2008· [2019] KECA 645 (KLR)

Samuel Munyao Nzioka v Housing Finance Company Of Kenya Ltd [2019] KECA 645 (KLR)

Court of Appeal of Kenya
5 April 2019
2,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a borrower's claim of mortgage overpayment because his own letters admitted arrears and his expert had calculated interest without reading the charge document.

What this practically means

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Executive summary

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This was a first appeal against the judgment of Odunga, J. (High Court, Nairobi, H.C. C.C. No. 671 of 2002, dated 1st November 2017) dismissing Samuel Munyao Nzioka's suit against his mortgagee, Housing Finance Company of Kenya Ltd. The appellant, a former employee, had borrowed Ksh.595,000 and Ksh.305,000 secured by charges over Nairobi/Block/129/359 Komarock, and alleged he had overpaid the loans by Ksh.375,394.60, sought discharge of the charges, return of his title documents, a permanent injunction against sale, restitution and interest. He relied chiefly on expert evidence from B.N. Kinyumo (PW2), who recalculated the account and on whose figures the appellant contended the loan was fully repaid after a payment of Ksh.1,500,000 on 26th October 2001, and that interest and penalty charges were illegal, non-contractual and unconscionable. The Court of Appeal, re-evaluating the evidence as required on a first appeal, found the appellant's own correspondence showed he knew he remained in arrears: he sought waiver of penalties and capitalisation of the balance, admitted financial strain, and had instructed auctioneers to sell the charged property. PW2's report was discredited because he never consulted the charge document or letter of offer - the primary contractual documents - and applied an interest rate of 18% p.a. that was not the contractual rate. Applying the principle that a court cannot re-write a contract absent pleaded and proved coercion, fraud or undue influence, the court affirmed the dismissal of the suit.

Key legal issues

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01

Whether the appellant fully discharged his indebtedness

Holding

The appellant had not cleared the sums owed; his own letters admitting arrears, seeking waiver of penalties and capitalisation of the balance, and instructing auctioneers contradicted his claim of overpayment.

Reasoning

The court examined the appellant's letter of 26th October 2001 acknowledging he had cleared only arrears and part of the capital, his request for waiver of penalties and capitalisation of the balance, and his instruction of Ritho Properties Limited to sell the charged property. The court agreed with the trial judge that the appellant long believed himself in arrears, and only claimed overpayment after PW2's recalculation.

p. 2
02

Weight of PW2's expert evidence on the mortgage accounts

Holding

PW2's report was rightly dismissed: he lacked demonstrable expertise on the transactions, never perused the charge document or letter of offer, and applied an interest rate of 18% p.a. that was not the contractual rate.

Reasoning

The court found PW2's computations covered only 1999 to 2001, ignored the primary contractual documents, and relied on information given by the plaintiff rather than independent investigation. PW2 conceded his opinion would have differed had he read the charge documents. Since the terms of borrowing were specified in the charge document, parties were bound by those terms and the report was not factual.

p. 3
03

Alleged illegal and erroneous interest and penalty charges

Holding

The claim of illegal charges failed because it depended on the discredited recalculations, and the parties were bound by the contractually agreed terms unless coercion, fraud or undue influence were pleaded and proved.

Reasoning

Relying on the Pothiwalla authority, the court held that a court cannot re-write a contract between parties and that equity will not ordinarily allow a party to escape a bad bargain. There was no plea or proof of coercion, fraud or undue influence regarding the terms of the charge, including the conversion of the concessionary staff rate to a commercial rate.

p. 3

Legal principles established

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  • On a first appeal, the Court of Appeal must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the trial judge's conclusions should stand, while making due allowance for having neither seen nor heard the witnesses.
  • A court cannot re-write a contract between the parties; parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved, and equity will not ordinarily relieve a party from a bad bargain.
  • The terms of a mortgage are contained in the letter of offer and the charge document, which form the contract between the parties; expert opinion not grounded in those primary contractual documents is of no probative value.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the appellant

Authorities

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Cases cited (3)

  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Kenya Ports Authority versus Kusthon (Kenya) Limited
    2000 2EA 212
  • Husamuddin Gulam hessein Pothiwalla administrator, Trustee and Executor of the Estate of Gulam hussein Ebrahim Pothiwalla vs. Kidogo Basi Housing Corporative Society Limited and 31 Others
    Civil Appeal No. 330 of 2003
On appeal from
High Court of Kenya at Nairobi
H.C. C.C. No. 671 of 2002
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (not expressly anchored to a specific provision in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Munyao Nzioka v Housing Finance Company Of Kenya Ltd [2019] KECA 645 (KLR)", Case Analysis (2019). Civil Appeal No. 1 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/645/eng@2019-04-05

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