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ELCDismissedELC Appeal No. 350 of 2017 (Formerly Nakuru High Court Civil Appeal No. 190 of 2012)· [2019] KEELC 3331 (KLR)

Duncan Iregi Karue v Moses Wambugu [2019] KEELC 3331 (KLR)

Environment and Land Court of Kenya
21 May 2019
4,730 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court dismissed a land agent's appeal, confirming that a written agreement to find a buyer for 8% commission is a binding contract Kenyan courts will enforce.

What this practically means

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Executive summary

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This is a first appeal from the judgment of V. K. Kiptoon, Resident Magistrate, in PMCC No. 183 of 2005 at Nyahururu, in which the respondent was awarded Ksh 64,000/= commission plus costs and interest for introducing a buyer for the appellant's land sold at Ksh 800,000/=. The appeal was lodged at the Nakuru High Court registry about four months after the judgment of 11 July 2012, without leave, and was later transferred to the Environment and Land Court at Nyahururu. M. C. Oundo, J. framed four issues: whether the appeal filed out of time could be deemed properly on record; whether an agency relationship existed; whether the appellant was condemned unheard; and whether the trial magistrate had jurisdiction to tax costs. On the first issue, the court found that the blanket order of 10 December 2013 allowing two unspecified applications did not grant extension of time, but in the interest of justice, following the Court of Appeal in Kamlesh Pattni, deemed the appeal duly filed. On the merits, applying Bowstead and Reynolds and Garnac Grain, the court found the written authority to sell and the completed sale to PW2 established a binding agency contract; the appellant's claim that the agreement was unsigned and unwitnessed failed for want of supporting evidence. The complaint of being condemned unheard failed because the matter proceeded ex-parte twice after due service. The court held that a magistrate's court has jurisdiction to tax costs under section 27 of the Civil Procedure Act and the Advocates Remuneration Order. The appeal was dismissed with costs to the respondent on 21 May 2019.

Key legal issues

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01

Whether the appeal filed out of time without leave could be deemed properly on record

Holding

Although no valid extension of time was granted (the blanket order of 10 December 2013 did not specify which of two applications was allowed), the court in the interest of justice deemed the appeal properly filed

Reasoning

Two applications dated 30 October 2012 had been filed but the order of 10 December 2013 was a blanket one that did not identify which application was allowed; the extension-of-time principles in First American Bank v Gulab P Shah were never considered, so leave was never properly granted. Nonetheless, invoking the Court of Appeal's holding in Kamlesh Pattni on access to justice, the court declined to strike out the appeal and deemed it duly filed.

p. 5
02

Whether an agency relationship existed between the appellant and the respondent

Holding

Yes - the written authority to sell showing an 8% commission, the respondent's introduction of the purchaser, and the completed sale established a binding agency contract

Reasoning

The authority to sell dated 1 June 2004 was produced as an exhibit and showed the appellant asked the respondent to find a buyer for 8% commission of the Ksh 800,000/= purchase price. Applying Bowstead and Reynolds and Garnac Grain, consent may be express or implied. The purchaser (PW2) testified he bought the land after the introduction. The appellant's allegation that the agreement was inauthentic was unsupported by any evidence.

p. 5
03

Whether the appellant was condemned unheard

Holding

No - the suit proceeded ex-parte twice after the appellant and his counsel were duly served and failed to attend; the opportunity to be heard was afforded but not taken

Reasoning

The record showed the matter proceeded ex-parte after the court confirmed service. No candid explanation was given for non-attendance. The first judgment of 11 November 2011 had been set aside by consent, yet the appellant again failed to appear on 15 June 2012. The court found the defence casually prosecuted and the complaint of being condemned unheard to be a delaying tactic.

p. 6
04

Whether the trial magistrate had jurisdiction to tax the bill of costs

Holding

Yes - section 27 of the Civil Procedure Act and paragraphs 49, 51 and Part III of the Advocates Remuneration Order confer jurisdiction on a magistrate's court to assess and tax costs

Reasoning

Section 27 of the Civil Procedure Act gives both subordinate courts and the High Court discretion to award costs and determine their extent. Paragraph 49 of the Advocates Remuneration Order defines 'court' to include a magistrate's court, Part III confers the mandate to determine costs, and paragraph 51 prescribes Schedule VII as the applicable scale in subordinate courts. Aggrieved parties should file a reference.

p. 6

Legal principles established

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  • A first appellate court must reconsider and evaluate the evidence afresh, while making allowance for not having seen or heard the witnesses
  • An appellate court will not normally interfere with findings of fact by the trial court unless based on no evidence, a misapprehension of the evidence, or a wrong principle
  • A principal-agent relationship is established by mutual consent, express or implied, of principal and agent
  • A magistrate's court has jurisdiction to tax costs under Section 27 of the Civil Procedure Act and the Advocates Remuneration Order

Court orders

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  1. 1.The appeal, already deemed properly filed despite being lodged out of time, is dismissed
  2. 2.Costs of the appeal awarded to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159(1)
  • Constitution of KenyaArticle 10
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 27
  • Estate Agents ActSection 18(1)
  • Advocates Remuneration OrderParagraphs 49, 51, Part III, Schedule VII
  • Advocates Remuneration Act

Cases cited (7)

  • Seascapes Ltd v. Development Finance Company of Kenya Ltd
    [2009] KLR 384
  • Ephantus Mwangi & Another v Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • Daphne Parry vs. Murray Alexander Carson
    [1963] EA 546
  • First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others
    [2002] 1 EA 65
  • Kamlesh Mansukhalal Damji Pattni vs. Director Of Public Prosecutions & 3 others
    [2015] eKLR
  • Gerald M'limbine vs. Joseph Kangangi
    [2009] eKLR
  • Garnac Grain Co. Inc. versus H.M. Faure & Fair Dough Ltd and Bunge Corporation
    (1967) 2 All E.R. 353
On appeal from
Principal Magistrate's Court at Nyahururu
PMCC No. 183 of 2005
Jurisdiction invoked
First appellate jurisdiction over appeals from subordinate courts transferred to the Environment and Land Court (formerly filed in the High Court at Nakuru)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Duncan Iregi Karue v Moses Wambugu [2019] KEELC 3331 (KLR)", Case Analysis (2019). ELC Appeal No. 350 of 2017 (Formerly Nakuru High Court Civil Appeal No. 190 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3331/eng@2019-05-21

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