Guardian Bank Limited v Book Point Limited & another [2020] KECA 47 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a Kshs 178 million demand because the amounts were never in the original judgment — decrees must match judgments exactly.
What this practically means
#Executive summary
#Key legal issues
#Whether an embellished Notice to Show Cause demanding sums not in the judgment is valid
It is not. The Notice to Show Cause with its addendum demanding Kshs 178,514,179.00 was not in consonance with the judgment of Ransley, J. and the figures introduced were a usurpation of judicial authority.
The court held the decree extracted and the subsequent Notice to Show Cause did not match the ruling of Ransley, J. The addendum figures were calculated outside the judgment, contrary to Order 21 Rule 7(1) that the decree shall agree with the judgment, and the sums claimed for future rents and outgoings were never specifically pleaded or proved.
Whether a judge may himself calculate sums due under a decree when hearing an application to set aside a Notice to Show Cause
No. Computation of monies awarded is a judicial function reserved to the court at judgment stage, and Sergon, J. erred in recalculating the sums himself when the only prayer was to set aside the Notice.
Relying on Justus Mutiga, Telkom Kenya vs John Ochanda and Kenya Revenue Authority vs Murgani, the court reiterated that assessment and computation of monies is a judicial function that cannot be delegated to a Registrar nor undertaken piecemeal. Sergon, J., faced only with a prayer to set aside the Notice, exceeded the scope of the application by undertaking arithmetic calculations.
Pleading and proof of special damages
Claims for rents, service charges, interest and outgoings falling due after suit must be specifically pleaded and strictly proved; a claim for such sums 'as and when they fall due' is vague and unquantifiable.
Following Capital Fish Kenya Limited vs Kenya Power & Lighting Company Limited, the court affirmed that special damages must be pleaded and strictly proved. The plaint contained no specific pleadings for post-1st September 2001 rents and outgoings, and apart from the quantified figure of Kshs 9,552,714.00, the claim was not liquidated, making summary judgment procedure under Order 36 inapplicable to those sums.
Legal principles established
#- A decree must agree with the judgment; sums not contained in the judgment cannot be introduced by way of addendum to a Notice to Show Cause.
- Computation of monies awarded or claimed is a judicial function that cannot be delegated to the Registrar or performed by parties; a judgment left incomplete for later calculation is a nullity.
- Special damages must be specifically pleaded and strictly proved; unquantified future rents and outgoings cannot be left for calculation by a Judge or Registrar.
Court orders
#- 1.The appeal is allowed
- 2.The orders of the High Court issued on 3rd March, 2016 are set aside
- 3.The appellant's Notice of Motion dated 17th January, 2012 is allowed
- 4.Costs of the appellant and the 2nd respondent shall be borne by the 1st respondent
- On appeal from
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- Not expressly stated in the extract; appellate jurisdiction over an appeal from the High Court (second appeal on the ruling of Sergon, J)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Guardian Bank Limited v Book Point Limited & another [2020] KECA 47 (KLR)", Case Analysis (2020). Civil Appeal No 90 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/47/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.