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ELCPartially AllowedNairobi High Court Civil Appeal Number 554 of 2007· [2019] KEELC 3227 (KLR)

Symon Manyara & another (Both appealing through Attorney Francis Gichobi Manyara) v Pauline Mahugu t/a Mianda Investments [2019] KEELC 3227 (KLR)

Environment and Land Court
23 May 2019
BEB M Eboso
1,942 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal, lodged in 2007 in the High Court as Nairobi High Court Civil Appeal Number 554 of 2007 and transferred in July 2017 to the Environment and Land Court, against the judgment of Honourable E N Maina in Milimani Chief Magistrate's Court Civil Case Number 9100 of 2006. The trial court had dismissed the appellants' claim for payment equivalent to the open market value of ten unsurveyed Embakasi plots because they had not specifically pleaded the precise amount claimed, and had refused damages on the ground that the land sale contract was frustrated by lack of subdivision approval. The trial court nonetheless found that the appellants had purchased the ten plots and had proved their case on a balance of probabilities - a finding unchallenged on appeal. Eboso J framed three issues: whether the open-market-value claim was special damages; whether the second limb of damages failed due to frustration; and whether costs were properly awarded. Holding that a purchaser's claim for loss of bargain is general damages assessable at judgment, and relying on uncontroverted valuation evidence valuing the ten plots at Kshs 1,800,000, the court found the trial judge misapprehended the claim. The second limb of damages was refused as duplicative of the first. The court set aside the dismissal, allowed prayer (a) at Kshs 1,800,000 with interest at court rates from 8/6/2007, declined prayer (b), and awarded the appellants costs of both the appeal and the suit.

Key legal issues

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01

Whether the claim for payment of open market value of unsurveyed plots was special damages requiring specific pleading

Holding

It was not; the claim was a purchaser's claim for loss of bargain, a form of general damages, and the trial court erred in treating it as special damages

Reasoning

The court interpreted paragraph 13 of the plaint and prayer (a) as a common law purchaser's claim for loss of bargain. Such damages are general damages assessed by the court at determination. Uncontroverted valuation evidence from a registered land valuer fixed each plot at Kshs 180,000, totalling Kshs 1,800,000. The trial court misapprehended the claim and erroneously declined to grant it despite finding a proved land sale contract that the respondent could not complete.

p. 2
02

Whether damages under prayer (b) were payable in addition to the loss of bargain damages under prayer (a)

Holding

No; the two claims could not co-exist, so the trial court's refusal of prayer (b) stood on a different basis

Reasoning

The court held that the first limb of the claim already placed the appellants in the position they would have occupied had the contract been performed. A second award of damages would duplicate that compensatory function, and accordingly the second limb would fail regardless of whether the local authority's non-approval of the subdivision amounted to frustration of the contract.

p. 3
03

Whether the land sale contract satisfied statutory formalities

Holding

It did; the contract of 9th January 1989 predated the amendment of Section 3 of the Law of Contract Act, so a written memorandum sufficed

Reasoning

The court noted the temporal application of the Law of Contract Act: at the time of execution, the unamended Section 3 required only a written memorandum for a valid land sale contract. This underpinned the trial court's unchallenged finding that a land sale contract existed and that the respondent was unable to complete it, entitling the appellants to loss of bargain damages.

p. 2

Legal principles established

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  • A purchaser's claim for loss of bargain is a form of general damages, not special damages, and need not be specifically pleaded with an exact amount
  • A purchaser may recover the amount by which the net value of the property at the due date would have exceeded the purchase price, and the court may assess damages at a date other than the contract date where justice requires

Court orders

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  1. 1.The order made by Honourable E N Maina on 8/6/2007 in Milimani Commercial Courts CMCC Number 9100 of 2006 dismissing the appellants' suit is set aside
  2. 2.Prayer (a) of the prayers set out in the plaint is allowed and the payable amount is assessed at Kenya Shillings One Million Eight Hundred Thousand (Kshs 1,800,000) only
  3. 3.The said sum of Kshs 1,800,000 shall attract interest at court rate from 8/6/2007
  4. 4.Prayer (b) of the plaint is declined
  5. 5.The appellants shall have costs of both this appeal and the suit from which the appeal arose

Authorities

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Legislation

  • Law of Contract ActSection 3
On appeal from
Milimani Chief Magistrate's Court
Civil Case Number 9100 of 2006
Jurisdiction invoked
First appeal from the Chief Magistrate's Court transferred to the Environment and Land Court by order of Njuguna J in July 2017

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Symon Manyara & another (Both appealing through Attorney Francis Gichobi Manyara) v Pauline Mahugu t/a Mianda Investments [2019] KEELC 3227 (KLR)", Case Analysis (2019). Nairobi High Court Civil Appeal Number 554 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3227/eng@2019-05-23

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