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Court of AppealDismissedCivil Appeal No 351 of 2018· [2020] KECA 148 (KLR)

Mistry Jadva Parbat & Co. Ltd v Kenyatta University [2020] KECA 148 (KLR)

Court of Appeal
20 November 2020
3,544 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyatta University contractor lost its Kshs 19.8 million claim because a court-adopted accountants' report showed the University had already overpaid it.

What this practically means

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Executive summary

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The appellant contractor and Kenyatta University had a building contract dating from December 1987. After a consent judgment in a Mombasa suit (Civil Suit No. 109 of 1991) covering Certificates Nos. 10 to 14, the parties by consent referred the accounts to the Interest Rates Advisory Centre (IRAC), which reported an overpayment by the University of Kshs 28,440,268.14, reduced to Kshs 10,738,820.04 after crediting Certificate No. 15, which had not been part of the suit. Azangalala, J. adopted that report as an order of the court on 30th July 2009 and closed the file. The appellant nonetheless filed the Nairobi suit (HCCC No. 121 of 2008) claiming Kshs 19,800,642.00 under Certificate No. 15 plus interest, while the University set up the overpayment as a set-off and counterclaim. Tuiyott, J. dismissed the claim and entered judgment for the University on the counterclaim. On appeal, the Court of Appeal, as a first appellate court applying retrial principles, held that the order of 30th July 2009 adopting the IRAC report had never been appealed against, reviewed, set aside or varied, and remained a valid court order that could not be disregarded. The Court found Certificate No. 15 valid but held the established overpayment operated as a set-off, making the appellant's claim bereft of merit. The appeal was dismissed with costs to the respondent, affirming the decision of the High Court.

Key legal issues

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01

Binding effect of the IRAC report adopted as an order of the court in the Mombasa suit

Holding

The order of 30th July 2009 adopting the IRAC report was never appealed or reviewed and remains a valid court order that the trial court and this Court cannot disregard

Reasoning

The parties had by consent referred the accounts to IRAC; both were heard on the adoption of the report; Azangalala, J. adopted it as an order of the court and closed the file. The appellant challenged the report only through assertions of its witnesses rather than by appeal or review, and must live with the consequences of that decision.

p. 5
02

Whether the appellant was entitled to payment under Certificate No. 15

Holding

Although Certificate No. 15 was valid and due, the overpayment established in the IRAC report operated as a set-off defeating the claim

Reasoning

Certificate No. 15 arose from work done under the same Contract; the overpayment was made in the course of satisfying other certificates under that contract. The IRAC report found an overpayment of Kshs 10,738,820.04 after crediting Certificate No. 15, which was the amount claimed in the respondent's counterclaim and proved on a balance of probabilities.

p. 6

Legal principles established

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  • A first appeal to the Court of Appeal is by way of retrial: the Court must reconsider and evaluate the evidence itself while making allowance for not having seen or heard the witnesses
  • A court order that has not been appealed against, reviewed, set aside or varied remains valid and binding and cannot be disregarded by a court in subsequent proceedings

Court orders

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

Authorities

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Cases cited (2)

  • Musikari Kombo v Royal Media Services Limited
    [2018] eKLR Civil Appeal 156 of 2017
  • Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR (Civil Appeal No. 161 of 1999)
On appeal from
High Court of Kenya at Nairobi
HCCC No 121 of 2008
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (first appeal from the High Court)

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, "Mistry Jadva Parbat & Co. Ltd v Kenyatta University [2020] KECA 148 (KLR)", Case Analysis (2020). Civil Appeal No 351 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/148/eng@2020-11-20

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