Kakad v Anne (Suing as legal representative to the Estate of Lucas Oluoch Mumia) (Civil Appeal 174 of 2019) [2025] KECA 1757 (KLR)
The bottom line
#Kenya's Court of Appeal ordered repayment of Kshs 206.9 million after finding the claimant proved misrepresentation despite failing to prove every alleged fraud.
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 High Court properly evaluated the evidence adduced by the appellant in reaching the decision that his suit had not been proved
- 2.Whether the appellant's evidence proved his claim of misrepresentation and payment of Kshs 206,926,300/= to the respondent
- 3.Whether the appellant's suit was time barred
Key legal issues
#Whether the appellant proved his claim of fraudulent misrepresentation
The appellant proved payment of Kshs 206,926,300/=, the falsity of the representations as to the banker's cheques and the respondent's credentials, and his reliance on the representations; he failed to prove the falsity of the representation that the respondent was owed money by CBK.
The appellant pleaded fraudulent and negligent misrepresentation. Fraud must be strictly proved to a standard higher than balance of probabilities. The falsity of the CBK debt representation could only be proved by CBK witnesses or an expert showing the letters were forgeries, which was not done. However, the Fidelity Bank letters, statements and cheques proved the payments; their admissibility issues were cured under section 175 of the Evidence Act as the cheques and statements independently justified the decision.
Whether the suit was time barred
The suit was not time barred, both because limitation began to run only upon discovery of the fraud and because limitation was never specifically pleaded by the respondent.
Section 26 of the Limitation of Actions Act provides that in actions based on fraud, time does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud. The appellant received worthless cheques from June 2006 to August 2007, so time could not have started running in 2004. Further, under Order 2 Rule 4(1) of the Civil Procedure Rules limitation must be specifically pleaded, and the defence did not plead it.
The remedy flowing from the proved misrepresentation
The appellant is entitled to rescission of the contract and restoration to his pre-contract position, i.e. repayment of the sums advanced with interest.
Having proved payment induced by misrepresentation, the appellant is entitled to rescind the contract and be restored to his pre-contract position. No damages were awarded for the pleaded consequential losses because no evidence of those losses was adduced.
Legal principles established
#- A claimant must prove its case on credible evidence whether or not the evidence is challenged or controverted; unchallenged evidence may only be acted upon unless it is clear that it is intrinsically unreliable.
- Allegations of fraud must be strictly proved; although the standard is not proof beyond reasonable doubt, something more than a mere balance of probabilities is required.
- A defendant relying on limitation of actions must specifically plead the statute; a party who has not pleaded limitation cannot rely on that defence.
- Where an action is based upon the fraud of the defendant, the period of limitation does not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.
- A first appellate court will reconsider and evaluate the evidence and draw its own conclusions, departing from trial court findings only where they were not based on the evidence, where the wrong principles of law were applied, or where discretion was exercised injudiciously.
Court orders
#- 1.The judgment of the High Court at Nairobi (J. Kamau J.) delivered on 18th October 2018 in HCCC No. 582 of 2012 is set aside, save for the one finding upheld in the judgment
- 2.The respondent is ordered to pay the appellant the sum of Kshs 206,926,300/=, together with interest at Court rates from the date of the judgment until payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 582 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment describes it as 'a first appeal')
Relief refused
#Damages for pleaded loss and damage (loss of investments, poor health, loss of interest and future earnings)
The appellant adduced no evidence of the other pleaded particulars of loss and damage
Costs
No costs order is stated in the judgment; the only monetary order is payment of Kshs 206,926,300/= with interest at Court rates until payment in full
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.
We accordingly set aside the judgment of the High Court at Nairobi (J. Kamau J.) delivered on18th October 2018 in HCCC No. 582 of 2012, save for the one finding that we have upheld in this judgment. We in addition order the respondent to pay the appellant the sum he was advanced of Kshs 206,926,300/=, together with interest at Court rates from the date of this judgment until payment in full.
It is in this regard settled that allegations of fraud must be strictly proved and although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.
a claimant must prove its case whether or not its evidence is challenged or controverted
a party who has not specifically pleaded limitation is not entitled to rely on that issue and base his preliminary objection on it; nor is he entitled to rely on that defence during the trial as cases must be decided on the issues pleaded
the period of limitation does not begin to run until the plaintifi has discovered the fraud or the mistake or could with reasonable diligence have discovered it
Issues in the judgment
#The judgment appears to have no separately stated costs order despite the High Court claim having sought costs; only the judgment debt and interest are ordered.
The judgment, in describing the trial court's upholding of one finding, states the appeal is partly allowed in substance but does not expressly classify the outcome or award the costs of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kakad v Anne (Suing as legal representative to the Estate of Lucas Oluoch Mumia) (Civil Appeal 174 of 2019) [2025] KECA 1757 (KLR)", Case Analysis (2025). Civil Appeal (from HCCC No. 582 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1757/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.