Unifresh Exotics (K) Limited v Kaoyeni Enterprises Limited (Civil Appeal E065 of 2022) [2025] KECA 872 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a land sale rescission but scrapped a Kshs. 80.9 million award because the claim was never properly pleaded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge re-wrote the judgment after delivery virtually
- 2.Whether the learned Judge erred in holding that the appellant was in breach of the contract of sale and, if so, what consequences attended such breach
- 3.Whether the learned Judge was at fault in holding that the contract of sale stood rescinded, or by failing to find that the respondent was in breach of the contract by issuing the purported rescission notice
- 4.Whether the learned Judge erred in awarding the respondent mesne profits of Kshs. 80,906,000 based on the expert evidence
- 5.Whether the learned Judge accorded the appellant a fair hearing
Key legal issues
#Whether the trial Judge could 'polish' the judgment post-delivery to include the quantum of mesne profits
The Judge was not functus officio since the judgment had not been perfected by a final decree; the perfected written judgment took primacy over the summarized virtual delivery
Relying on KDIC v Rapid Communications and Re L and B (Children), the court held that finality under the functus officio doctrine is achieved only when a judgment is perfected. The impugned judgment had not been reduced to a sealed final decree, so the Judge retained residual power to correct the judgment to reflect the amount proved in evidence. The certified signed judgment therefore prevailed over the transcript of the summarized virtual delivery.
Whether the contract stood rescinded by notice and whether the respondent was in breach for issuing the rescission notice
Clauses 3.4 and 3.5 of the Supplemental Agreement varied and superseded clause 7.1 of the Principal Agreement, terminating the contract automatically on default without any notice; the rescission notice was superfluous
Construing the agreements as a whole, the court found that the parties' intention, evident in the recital to the Supplemental Agreement, was that upon failure to pay any instalment the agreement terminates immediately, all monies paid are forfeited and possession reverts to the vendor. The need for a 14-day rescission notice under clause 7.1 was therefore displaced. Pre-contract correspondence about completion documents was extrinsic and non-binding, and no term made delivery of Completion Documents a condition precedent to payment.
Whether the award of Kshs. 80,906,000 mesne profits was sustainable
The award was set aside because mesne profits were never specifically pleaded, only appearing in the prayers and submissions, and the expert report therefore supported no averments
The court distinguished between pleadings (allegations of relevant fact) and prayers (requests for relief). The respondent's plaint merely prayed for mesne profits without pleading the factual basis. Expert evidence at variance with the pleadings goes to no issue. Parties are bound by their pleadings, so the Judge erred in finding the claim proved on a balance of probabilities based on the PW2 report and submissions.
Whether the trial Judge was biased and denied the appellant a fair hearing
No bias was established; the allegations were bare and unsubstantiated, and the appellant was accorded a fair hearing
Bias must be proved by evidence, not merely alleged stridently. The circumstances complained of - polishing the judgment before perfection, the suo motu attempt to facilitate settlement under Article 159(2)(c), and the treatment of the rescission notice as a non-issue - could not reasonably be construed as indications of bias. The appellant also took no advantage of the indulgences granted, including adjournments for its directors to appear.
Legal principles established
#- A claim for mesne profits must be specifically pleaded and strictly proved; a bare prayer coupled with submissions cannot found the relief
- Evidence that does not support the averments in the pleadings goes to no issue and must be disregarded
- A court is not functus officio until its judgment or order has been perfected; it retains jurisdiction to correct or complete the judgment up to that point
- Where contractual provisions conflict, later provisions prevail; a supplemental agreement varying default consequences supersedes the earlier clause
- Pre-contract correspondence and negotiations are not binding unless their terms are incorporated into the executed agreement
Court orders
#- 1.The appeal partly succeeds to the extent that the award of mesne profits in the sum of Kshs. 80,906,000 is set aside
- 2.The judgment and decree of the ELC at Mombasa (L. L. Naikuni, J.) is upheld with regard to the awards and orders specified in paragraph 41 (a), (b), (c), (f), (g), (h) and (i) of the impugned judgment
- 3.The appellant shall bear the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC Case No. 428 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (appellate jurisdiction over the Environment and Land Court)
Relief refused
#Setting aside the entire judgment and decree of the ELC and substitution with an order dismissing the suit
Only the mesne profits award failed; the trial judgment was otherwise upheld
Costs of the appeal to the appellant
The appellant, having lost the core grounds, was ordered to bear the costs
Costs
The appellant shall bear the costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having carefully considered the record of appeal, the grounds on which it was anchored, the impugned judgment, the rival submissions, the cited authorities and the law, we find that the appeal partly succeeds to the extent that the award of mesne profits in the sum of Kshs. 80,906,000 be and is hereby set aside.
Mesne profits, which are profits earned by a person in wrongful possession of property during a period of unlawful possession, must be specifically pleaded and strictly proved.
So that, finality, which is at the core of the doctrine of functus oficio, is achieved when the judgment or order has been 'perfected' or 'drawn up, issued and entered'.
In efiect, the certified copy of the full judgment signed and dated by the learned Judge containing orders indicating the quantum of mesne profits, having been duly perfected, took primacy over the certified transcript of the summarised judgment delivered during the virtual court session.
Where a document is contradictory, later provisions prevail over earlier ones. The wording of clauses prevails over headings.
We are alive to the hallowed legal maxim that it is not the business of courts to rewrite contracts between parties.
… any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.
Issues in the judgment
#Internal date discrepancy in the disposition: the final orders describe the judgment upheld as dated 24th May 2021, whereas the judgment appealed from is elsewhere stated to be dated 24th May 2022
Discrepancy in the pleaded purchase price: the plaint/agreement price is stated as Kshs. 24,230,340 in the narrative but as Kshs. 24,260,340 in the trial judgment and contract clauses reproduced
Inconsistency in the expert's evidence on sugarcane crop lifespan as reproduced from the trial judgment: stated as fifteen (14) years
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Unifresh Exotics (K) Limited v Kaoyeni Enterprises Limited (Civil Appeal E065 of 2022) [2025] KECA 872 (KLR)", Case Analysis (2025). Court of Appeal at Mombasa Civil Appeal (undated Memorandum of Appeal from ELC Case No. 428 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/872/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.