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 AppealDismissedCivil Appeal 58 of 2017· [2022] KECA 628 (KLR)

Moherai Iresa Mwita v Woodventure (K) Limited & another

Court of Appeal
8 July 2022
PKP.O. KiageJMJ. MohammedMNMumbi Ngugi
2,437 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This was a second appeal from the High Court at Migori (Mrima J), which had partially allowed the respondents' appeal against a trial court judgment in the appellant's favour. The dispute arose from a hire purchase agreement for an unregistered second-hand Mitsubishi Canter. The appellant paid a Kshs. 600,000 deposit, took possession, but the respondents never delivered the registration number plates, allegedly because a Kshs. 50,000 condition-precedent sum was unpaid. The appellant terminated the agreement and sued for a refund with interest, security costs and loss of earnings; the respondents counterclaimed for the balance of the purchase price. The trial court awarded the refund with interest from the date of the agreement and security costs; the first appellate court upheld the refund but varied interest to run from filing suit and struck down the security costs award. The Court of Appeal (Mumbi Ngugi JA, Kiage and Mohammed JJA concurring) dismissed the appellant's appeal. It held that the security costs claim was special damages requiring strict proof, and none was adduced; and that under section 26(1) of the Civil Procedure Act and the Mukisa Biscuits principle, interest on a liquidated sum deprived through wrongful act runs from the date of filing suit. The appeal was dismissed with costs to the respondents.

Key legal issues

#
01

Proof of special damages (security costs)

Holding

The claim failed; the first appellate court properly found it unestablished.

Reasoning

The claim for Kshs. 5,000 per month security costs was a claim in special damages requiring specific pleading and strict proof. Although the appellant testified he paid Kshs. 5,000 for security, he led no supporting evidence; nothing was placed before the trial court to sustain the claim, so the first appellate court's finding could not be disturbed on second appeal.

p. 3
02

Commencement date of interest on the refund

Holding

Interest properly ran from the date of filing suit, not from the date of the hire purchase agreement.

Reasoning

Section 26(1) of the Civil Procedure Act permits interest before institution of suit only where a substantive right to it exists. Applying the Mukisa Biscuits principle, the deposit was a liquidated amount deprived through the respondents' wrongful act, so interest runs from filing suit; the trial court erred in awarding interest from 7th May 2009.

Legal principles established

#
  • On a second appeal the Court confines itself to matters of law unless the courts below considered or failed to consider matters they should not/should have, or the decision is perverse.
  • Special damages must be specifically pleaded and strictly proved with as much particularity as circumstances permit.
  • Where a person is entitled to a liquidated amount and is deprived of it through the wrongful act of another, interest is awarded from the date of filing suit.

Court orders

#
  1. 1.Appeal dismissed with costs to the respondents

Authorities

#

Legislation

  • Evidence Actsection 107
  • Civil Procedure Actsection 26(1)

Cases cited (5)

  • Hann v Singh
    Civil Appeal No. 42 of 1983 (1985) KLR 716

    Special damages must be specifically pleaded and strictly proved

  • Mukisa Biscuits Manufacturing Company Limited v West End Distributors Limited
    {1970} EA 469

    Court's discretion under section 26(1) to award interest at two stages

  • Stanley N. Muriithi & Another v Bernard Munene Ithiga
    [2016] eKLR

    Second appeal confined to matters of law

  • Kenya Breweries Limited v Godfrey Odoyo
    [2010] eKLR

    Second appeal confined to matters of law unless decision perverse

  • Supermarine Handling Services Ltd v Kenya Revenue Authority
    [2010] eKLR

    Special damages must be specifically pleaded and strictly proved

On appeal from
High Court of Kenya at Migori
Migori HCCA No. 1 of 2016
Jurisdiction invoked
Second appeal to the Court of Appeal, jurisdiction confined to matters of law

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Moherai Iresa Mwita v Woodventure (K) Limited & another", Case Analysis (2022). Civil Appeal 58 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/628/eng@2022-07-08

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