Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 32 of 2019· [2020] KECA 675 (KLR)

Edward Nyingi Mukundi v Terry Wanjiru Kariuki & Another [2020] KECA 675 (KLR)

Court of Appeal of Kenya
8 May 2020
HOHannah OkwenguDMD.K. MusingaFSF. Sichale
3,398 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

#

The Court of Appeal confirmed that accepting the benefits of a property sale bars you from later cancelling it over a paperwork error.

What this practically means

#

Executive summary

#
This first appeal arose from the judgment of Nzioka, J. in HCCC No. 343 of 2009, by which the High Court declined to cancel the sale agreement between Terry Wanjiru Kariuki and Edward Nyingi Mukundi but allowed Terry to treat it as repudiated or rescinded, found the transfer of the charged property to the appellant illegal, and ordered each party to bear its own costs. The appellant contended the judge erred in nullifying a valid sale and transfer merely because Form RL 4, rather than Form RL 2, was used to effect the transfer. Terry cross-appealed, seeking reversion of title to herself, a finding that no statutory notice was served, and damages. Equity Bank also filed a notice of appeal. The Court of Appeal, re-evaluating the evidence as a first appellate court, held that the sale agreement was validly and voluntarily executed, that the appellant discharged Terry's indebtedness to the Bank and that Terry accepted and utilised the balance of the purchase price. Having accepted the benefits of the transaction, Terry could not approbate and reprobate by disowning the agreement over a defect of form. Section 72 of the Interpretation & General Clauses Act cured any deviation from the prescribed form that did not affect substance. The court allowed the appellant's appeal and the Bank's notice of appeal, dismissed Terry's cross-appeal, set aside the High Court judgment, dismissed the suit, and ordered the 1st respondent to bear the costs throughout.

Key legal issues

#
01

Effect of using the wrong transfer form (RL 4 instead of RL 2) on a sale by private treaty

Holding

The use of the wrong form did not affect the validity of the sale or transfer; it was a deviation of form, not substance, cured by section 72 of the Interpretation & General Clauses Act.

Reasoning

The court found the sale agreement was valid and voluntarily executed under legal representation; duress was not pleaded or proved. Terry signed Form RL 2, the debt was discharged and she utilised the balance. Challenging the form rather than the substance could not vitiate the transaction, section 72 curing deviations from prescribed forms that do not affect substance or mislead.

p. 5
02

Whether a party may repudiate a sale agreement whose benefits it has accepted

Holding

No. Having accepted and utilised the balance of the purchase price while her debt was cleared, Terry could not repudiate or rescind the agreement.

Reasoning

Relying on the approbate/reprobate doctrine as restated in National Bank of Kenya Ltd v Hamida Bana & 103 others, the court held no party can accept and reject an instrument at will. The agreement led to clearance of Terry's indebtedness and she utilised the surplus; she could not disown the same agreement on account of form.

p. 5
03

Duty of a first appellate court

Holding

The Court of Appeal on a first appeal must re-evaluate the evidence and draw its own conclusions, making allowance for not having seen or heard the witnesses.

Reasoning

Restating Abok James Odera & Associates v John Patrick Machira and Kenya Ports Authority v Kusthon, the court affirmed that the responsibility of a first appellate court is to rule on the evidence on record without introducing extraneous matters not dealt with by the parties.

p. 4

Legal principles established

#
  • A party who has accepted and utilised the benefits of a transaction cannot disown it on a technicality of form; a party cannot approbate and reprobate.
  • Under section 72 of the Interpretation & General Clauses Act, a deviation from a prescribed form does not render an instrument void where it does not affect the substance or mislead.
  • On a first appeal, the Court of Appeal re-evaluates, re-assesses and re-analyses the evidence on the record and determines whether the trial court's conclusions should stand.

Court orders

#
  1. 1.The appellant's appeal is allowed
  2. 2.Terry's cross-appeal dated 26th March, 2019 is dismissed
  3. 3.The Bank's Notice of Appeal dated 14th December, 2018 is allowed
  4. 4.The judgment of Nzioka, J. dated 20th November, 2018 is set aside
  5. 5.The suit by Terry against the appellant and the Bank at the High Court is dismissed
  6. 6.Costs of the appeal and in each instance thereof are to be borne by the 1st respondent

Authorities

#

Legislation

  • Interpretation & General Clauses Act (Cap 2, Laws of Kenya)Section 72

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
  • National Bank of Kenya Limited vs Hamida Bana & 103 others
    [2017] eKLR
On appeal from
High Court of Kenya at Nairobi
HCCC No. 343 of 2009
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the High Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Edward Nyingi Mukundi v Terry Wanjiru Kariuki & Another [2020] KECA 675 (KLR)", Case Analysis (2020). Civil Appeal No. 32 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/675/eng@2020-05-08

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