Mistry Jadva Parbat & Co. Ltd v Kenyatta University [2020] KECA 148 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Binding effect of the IRAC report adopted as an order of the court in the Mombasa suit
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
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.
Whether the appellant was entitled to payment under Certificate No. 15
Although Certificate No. 15 was valid and due, the overpayment established in the IRAC report operated as a set-off defeating the claim
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.