Isaac Muchiri Githinji v David Wainaina Gachoka [2021] KEELC 2575 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the agreed 50% per annum interest rate was unconscionable and unenforceable
The interest clause was mutual, the parties had equal bargaining power, and the rate was therefore enforceable
The court applied the three-part test for unconscionable bargain from Strydom v Vendside and Margaret Njeri Muiruri: disadvantage, exploitation and oppression must all be proved. Clauses 5 and 6 of the agreement imposed the 50% rate symmetrically on whichever party breached, showing no abuse of a weaker bargaining position. Relief requires unconscientious conduct by the stronger party, not mere unfairness, so judicial interference was unjustified.
Whether issues raised only in submissions could be determined
No; the court limited itself to issues arising from the pleadings
The Defendant raised the validity of the sale agreement, the caution on the rice holding and absence of timelines for the first time in submissions. Relying on Order 2 Rule 4 of the Civil Procedure Rules and the Zapkass and Elizanya decisions, the court held that submissions are not pleadings and new issues raised by way of submissions are best ignored.
Who should bear the costs of the suit
Costs awarded to the Plaintiff
Section 27 of the Civil Procedure Act vests discretion in the court, with costs following the event absent good reason. The Plaintiff had indulged the Defendant's application to set aside the default judgment, the Defendant admitted receipt of the deposit yet the Plaintiff had received neither refund nor the holding eight years later, and the Plaintiff emerged victorious following the event.
Legal principles established
#- A court cannot rewrite a contract with regard to interest; parties are bound by the terms of their contract unless the bargain is unconscionable
- To set aside a contract as an unconscionable bargain, disadvantage, exploitation and oppression must all be proved; relief requires unconscientious conduct by the stronger party
- Cases must be decided on the issues pleaded; submissions do not constitute pleadings
- Costs are discretionary but follow the event unless the court for good reason otherwise orders
Court orders
#- 1.Judgment entered for the Plaintiff in the consented sum of Ksh. 255,270.00
- 2.Defendant to pay the agreed interest of 50% per annum from the date of the agreement
- 3.Costs of the suit awarded to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit relating to rice holding land; Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Muchiri Githinji v David Wainaina Gachoka [2021] KEELC 2575 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2575/eng@2021-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.