Michira v Kenya National Capital Corp (Civil Appeal 53 of 2017) [2021] KECA 286 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that vague promises without specific dates aren't enforceable warranties, and you can't raise new arguments on appeal that weren't raised at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent's assurance on vacant possession constituted an enforceable warranty forming part of the loan agreement
No warranty was made; the appellant accepted the loan terms before seeking the assurance, and the respondent's response contemplated a process without any specific date.
The correspondence shows the appellant accepted the loan offer on 21st October 1997 and only thereafter sought an assurance on vacant possession. The respondent's reply confirmed its responsibility to give vacant possession but fixed no date. The alleged warranty was uncertain and open-ended, incapable of being a firm, specific and enforceable term. The consent judgment paying the principal further showed the appellant's understanding that repayment was owed.
Whether the appellant could invoke section 44A of the Banking Act on appeal to challenge the interest awarded
No, because the issue was neither pleaded nor addressed by the parties or the trial court.
Parties are bound by their pleadings and a court may only pronounce judgment on issues arising from them unless canvassed by the parties through evidence and submissions. The appellant did not seriously dispute the quantification of interest at trial, and raising the Banking Act point for the first time on appeal would require the court to determine an unpleaded issue, which it has no jurisdiction to do.
Whether the appellant could approbate and reprobate by accepting liability for the principal while resisting interest
The appellant could not; having agreed by consent to pay the principal, he needed a clause excusing interest to obtain a waiver.
The appellant's willingness to pay the outstanding principal in the consent judgment of 27th March 2003 demonstrated that he understood his obligation to repay the loan. To succeed on waiver of interest he had to show a provision of the loan agreement allowing him not to pay interest upon failure to give vacant possession on a definite date. No such clause existed, and he could not simultaneously accept and reject the agreement's obligations.
Legal principles established
#- A court must decide a matter on the basis of the pleadings and evidence and has no jurisdiction to introduce and determine issues that were neither pleaded nor addressed by the parties.
- For an alleged warranty or assurance to be enforceable, it must be firm, specific and verifiable; an open-ended assurance without a definite date or time is not a binding warranty.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (statutory appellate jurisdiction; no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michira v Kenya National Capital Corp (Civil Appeal 53 of 2017) [2021] KECA 286 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/286/eng@2021-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.