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ELCPartially AllowedNot stated in the excerpt· [2021] KEELC 202 (KLR)

Patrick Mutuma Arimi v Elais Mutethia Murira [2021] KEELC 202 (KLR)

Environment and Land Court
8 December 2021
CNC. K. Nzili
2,059 words in judgment
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The bottom line

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A Kenyan land buyer lost his appeal but won court-ordered costs and interest after the trial court failed to explain why it denied them.

What this practically means

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Executive summary

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The appellant, who had sued the respondent for breach of a land sale agreement (claiming a refund of Kshs. 330,000 or specific performance with transfer of ¼ acre), obtained judgment in the lower court on 4.7.2017. Subsequent applications - one dated 11.12.2018 seeking review of costs and damages, and one dated 24.6.2019 seeking review, variation and stay of orders and reinstatement of the suit - were dismissed by the trial court, the latter on the basis that the appellant's affidavit was misleading and that no suit had been dismissed for non-attendance. On first appeal, the ELC at Meru (C.K. Nzili, ELC Judge) held that the trial court acted correctly in dismissing both applications: counsel took a date exparte without attending or serving, gave no explanation by affidavit, and the appellant's own affidavit contained falsehoods about a suit said to have been dismissed when judgment had actually been entered in his favour, rendering the application an abuse of process. The court nevertheless found the trial court erred in law by denying the successful appellant costs without reasons, contrary to Sections 27 and 28 of the Civil Procedure Act, and by denying interest on the principal sum without reasons contrary to Section 26. However, the court upheld the refusal of general damages of Kshs. 1,000,000 and of interest at 19%, since neither was pleaded nor proved. The court dismissed the appeal with costs but, in the interest of substantive justice, varied the lower court judgment by allowing the suit with costs and interest from the date of the lower court judgment at court rates.

Key legal issues

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01

Whether the dismissal of the applications for review/reinstatement was proper

Holding

The trial court was right: no suit had been dismissed for non-attendance (judgment had been entered for the plaintiff), and counsel neither attended nor served the application

Reasoning

The record showed the appellant had testified, closed his case and obtained judgment on 4.7.2017, so the application of 24.6.2019 premised on a dismissed suit was at variance with the record. The law firm took a date exparte but did not attend, and offered no explanation by affidavit. The applications were therefore an abuse of process and the trial court correctly dismissed them.

p. 2
02

Whether the trial court erred in denying costs to the successful plaintiff

Holding

The trial court erred in law by giving no reasons for denying costs to the successful party and acted on wrong principles

Reasoning

Under Sections 27 and 28 of the Civil Procedure Act costs follow the event. The appellant produced a demand letter and an addendum extending the completion date, so he was not the author of the breach. The defence did not plead his own blame. The court's discretion on costs must be exercised judicially, and no reasons were given for departing from the general rule.

p. 2
03

Whether the appellant was entitled to interest

Holding

The trial magistrate erred in giving no reason for denying interest; interest was awarded from the date of the lower court judgment at court rates

Reasoning

The appellant paid a deposit and was deprived of both land and money from 2013. Following the New Tyres principles and Section 26 of the Civil Procedure Act, interest may be adjudged. However, the pleaded 19% rate was neither in the agreements nor pleaded nor proved, and pre-filing interest required contractual agreement, so interest was granted only from judgment at court rates.

p. 3
04

Whether general damages and 19% interest should have been awarded

Holding

The trial magistrate correctly declined both as unpleaded and unproved

Reasoning

The sale agreement described the sum as liquidated damages, and general damages of Kshs. 1,000,000 were not pleaded in the plaint nor proved by evidence. The 19% interest rate was likewise absent from the two sale agreements and neither pleaded nor proved.

p. 3

Legal principles established

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  • On a first appeal the court must re-assess, rehear and re-appraise the lower court record and come to its own findings and conclusions
  • Costs follow the event unless there are reasons indicated by the court to deny a successful party costs
  • An appellate court will not interfere with a trial court's discretion on costs except where it was exercised on wrong principles or without good reasons
  • A party deprived of money through the wrongful act of another is entitled to interest, generally from the date of filing the suit
  • Interest for the period before filing suit is only claimable if contractually agreed, and must be pleaded and proved
  • A litigant has a duty of full disclosure to the court

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The lower court judgment is reviewed in so far as costs and interest are concerned
  3. 3.The lower court suit is allowed with costs and interests from the date of the lower court judgment at court rates
  4. 4.The appeal is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure ActSection 26
  • Civil Procedure ActSections 27 and 28

Cases cited (8)

  • Selle & Another v Associated Motor Boat Co. Ltd & Another
    (1968) EA 123
  • CMCC Holdings Ltd –vs- Nzioki
    [2004] IKLR 173
  • Harrison Wanjohi Wambugu –vs- Felista Wairimu Chege & Another
    [2013] eKLR
  • Joseph Oduor –vs- Kenya Red Cross Society
    [2012] eKLR
  • Supermarine Handling Services Ltd –vs- Kenya Revenue Authority
    [2010] eKLR
  • Prem Lata –vs- Peter Musa Mbiyu
    [1965] E.A 592
  • Mukisa Biscuits Manufacturing Co. Ltd –vs- West End Distributors Ltd
    [1970] E.A 469
  • New Tyres Enterprises Ltd –vs- Kenya Alliance Insurance Co. Ltd
    [1988] KLR 380
On appeal from
Magistrates' Court
Not stated
Jurisdiction invoked
First appellate jurisdiction under the Environment and Land Court Act over appeals from subordinate courts; appeal from the ruling of the trial court

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, "Patrick Mutuma Arimi v Elais Mutethia Murira [2021] KEELC 202 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/202/eng@2021-12-08

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