Commissioner of Police & another v Intraspeed Logistics Ltd & 15 others (Civil Appeal 271 of 2019) [2025] KECA 1732 (KLR)
The bottom line
#Kenya's Court of Appeal cut a post-election violence damages award from six years to three but kept police liable and bound the parties to their consent.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this appeal is incompetent, because it was filed out of time, and does not include necessary documents in the record and supplementary record of appeal
- 2.Whether the issue on liability can be raised before this Court at this stage
- 3.Whether there was a valid consent between the parties on quantum recorded in the superior court
- 4.Whether the award on quantum was justified or inordinately high
Key legal issues
#Competence of the appeal for being filed out of time and omission of documents
The objection fails because it was raised only in submissions without a Rule 86 application within the prescribed 30 days, contrary to Rule 104(b).
Rule 86 permits a person affected by an appeal to apply to strike out the notice or the appeal before or after institution, provided the application is brought within 30 days of service of the notice of appeal or record of appeal. The respondents did not file any such application. Rule 104(b) forbids a respondent from raising, without leave, an objection to competence that might have been raised under rule 84. The court therefore treated the objection as overtaken by events and proceeded to the merits.
Whether liability could be reopened on appeal
Liability could not be reopened because the appellants never appealed the ruling of 23rd November 2017 finding them jointly and severally liable, and participated in the quantum hearing.
The superior court found the appellants jointly and severally liable on 23rd November 2017. The appellants did not appeal against that ruling; counsel even cross-examined the respondents' witnesses at the quantum hearing. Having failed to challenge the liability ruling in the ordinary way, the appellants could not, at this late stage, purport to appeal it.
Effect of the consent recorded on 8th November 2018 on quantum
The consent, adopted in an amended decree, has contractual effect and binds the parties; no vitiating circumstances were shown, so the court would not interfere with it.
The parties, all represented by counsel, recorded a consent confirming the schedule dated 21/09/2018 relating to loss of business and interest. Relying on Flora Wasike and the line of authority from Hirani v Kassam through Brooke Bond Liebig, the court held that a consent judgment can only be set aside on grounds justifying setting aside a contract, such as fraud, collusion, or misapprehension of material facts. None was established.
Whether the award on loss of business was justified or inordinately high
The 15% per truck per annum formula was within the judge's discretion, but the six-year period exceeded the three years pleaded; the award was varied to three years.
The trial judge, doing the best he could with insufficient material, assigned 15% loss of business per truck per annum for six years. Citing Ryce Motors, Jebrock Sugarcane, and Chinese Technical Team, the court held that damages difficult to estimate do not relieve the wrongdoer and the judge did not err in principle. However, the respondents pleaded and prayed for loss of business for only three years, and the court will not award beyond the pleadings. The period was accordingly reduced to three years.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
- A respondent who wishes to challenge the competence of an appeal must do so by application under rule 84 (strike out) within 30 days of service of the notice of appeal or record of appeal; an objection raised only in submissions, without leave, is barred by rule 104(b)
- Expert evidence can only be challenged by other expert evidence
- A court will not award loss that was not pleaded; the relief granted must align with what was pleaded and proved
- Where damages are difficult to estimate, the court doing the best it can with insufficient material may accord the plaintiff the benefit of every reasonable presumption as to the loss suffered
Court orders
#- 1.The order assigning 15% loss of business per truck per annum for a period of six years be and is hereby set aside
- 2.Substitution of an order assigning 15% loss of business per truck per annum for a period of three years
- 3.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 398 of 2009
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite a specific constitutional or statutory provision in this extract)
Relief refused
#Striking out the record of appeal and supplementary record of appeal as incompetent for being filed out of time and omitting documents
The respondents never applied by motion under Rule 86 within 30 days; they merely raised the competency of the appeal in submissions, contrary to Rule 104(b)
Reopening of the liability ruling of 23rd November 2017
The appellants did not appeal against the ruling on liability and cannot challenge it at this late stage
Setting aside the consent recorded on 8th November 2018
No grounds justifying setting aside a contract were advanced by the appellants
Interference with the trial court's acceptance of the valuer's expert evidence
Expert evidence can only be countered by other expert evidence, and none was tendered
Costs
Each party to bear its own costs.
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.
The order assigning 15% loss of business per truck per annum for a period of six years be and is hereby set aside;
We substitute therefor, an order assigning 15% loss of business per truck per annum for a period of three years.
Each party to bear its own costs.
It is now settled law that a consent judgement or order has contractual efiect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.
It is trite that expert evidence can only be countered by other expert evidence.
The court will generally not award that which is not pleaded. A claim is circumscribed by what is specifically prayed for in the pleadings. The relief granted must align with what was pleaded and proved.
A respondent shall not, without the leave of the Court, raise any objection to the competence of the appeal which might have been raised by application under rule 84.
Issues in the judgment
#The pleading dates are internally inconsistent: the amended plaint is described as dated 12th March 2010, but the respondents refer to an amended plaint dated 14th December 2009 and a statement of defence dated 29th September 2009 filed against the original plaint
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Commissioner of Police & another v Intraspeed Logistics Ltd & 15 others (Civil Appeal 271 of 2019) [2025] KECA 1732 (KLR)", Case Analysis (2025). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1732/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.