Annah Wairimu Mwangi v David Kamau Kimani [2020] KECA 773 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a land buyer who lodges a caution to protect a refund owed cannot be forced to pay damages.
What this practically means
#Executive summary
#Key legal issues
#Whether damages are payable for the registration of a caution under section 75 of the Land Registration Act
No damages were payable because the caution was lodged reasonably: the appellant breached the sale agreement by failing to obtain Land Control Board consent, discharge the charge, or refund the deposit, so the respondent was justified in lodging the caution to protect his interest.
Section 75 imposes liability only on a person who lodges or maintains a caution wrongfully and without reasonable cause. On the facts, the parties' sale agreement of 9 February 2011 obliged the appellant to obtain Land Control Board consent within six months; she failed to do so, failed to discharge the existing charge, and failed to refund the Kshs.200,000 deposit when the deal fell through. Being the party in breach, she could not characterize the respondent's caution as wrongful, and the trial judge was right to order only removal of the caution and refund of the deposit.
Whether the trial judge was biased against the appellant
The bias ground failed for want of evidence; the record did not show the judge refusing parties leave to file submissions.
The appellant alleged that the learned judge was openly biased, pointing to the refusal of a request to file written submissions to quantify loss. The Court examined the record and found nothing to support the allegation: no evidence was adduced of conduct suggesting bias in favour of the respondent, and the record did not show that parties were prevented from filing submissions. The ground was therefore dismissed as baseless.
Legal principles established
#- Damages under section 75 of the Land Registration Act are payable only where a caution is lodged wrongfully and without reasonable cause; a vendor who breaches the sale agreement and fails to refund a deposit cannot recover damages for a caution lodged to protect the purchaser's interest.
- Allegations of judicial bias must be supported by evidence on the record; a bare assertion without evidence cannot sustain a ground of appeal.
Court orders
#- 1.Dismissal of the appeal in its entirety
- 2.The appellant to bear the respondent's costs of the appeal
- On appeal from
- Environment and Land Court of Kenya at Malindi
- E.L.C Case No. 45B of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite a specific provision)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muhia & 2 others (Legal Representatives of the Estate of Njiraini Muhia Deceased) v Ngugi[2023] KEELC 20800 (KLR)19 Oct 2023applied
Cite this brief
#Cite this brief
Caselaw, "Annah Wairimu Mwangi v David Kamau Kimani [2020] KECA 773 (KLR)", Case Analysis (2020). Civil Appeal No. 148 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/773/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.