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ELCPartially AllowedELC 161 of 2011· [2022] KEELC 192 (KLR)

Peter Kirimi Mwindi v Dorothy Seyanol Moschion [2022] KEELC 192 (KLR)

Environment and Land Court
21 April 2022
MMM.D. Mwangi
1,467 words in judgment
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The bottom line

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A Nairobi court awarded a land buyer KES 7.6 million against a seller who resold the property, but refused extra damages and pre-suit interest.

What this practically means

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Executive summary

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The Plaintiff sued for Kshs. 7,618,880/- and general damages for breach of a written agreement dated 21 December 2008 under which the Defendant agreed to sell parcel LR No. 5892/26 to him for Kshs. 8,500,000/-. The Plaintiff paid Kshs. 7,618,880/-, partly in cash and partly by transferring two motor vehicles (KAZ 946S and KAZ 522X) whose prices were applied to the purchase price, evidenced by a counter-signed schedule of payments. The Defendant never transferred the title, having instead sold and transferred the property to a third party. Despite service, the Defendant neither entered appearance nor filed a defence, and the suit proceeded as an undefended hearing. The court framed three issues, adding a fourth on interest. It held that the special damages claim of Kshs. 7,618,880/- was specifically pleaded and proved through documentary evidence including the counter-signed acknowledgement of payment, and awarded the full amount. Relying on established authority, it disallowed general damages for breach of contract, holding such damages must be special damages pleaded and proved. On interest, applying section 26(1) of the Civil Procedure Act, the court found no justification for the claimed pre-contract date of 3.10.2007 and awarded interest at court rates only from the date of filing suit until payment in full. Costs followed the cause and were awarded to the Plaintiff. The claim thus partially succeeded.

Key legal issues

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01

Proof of the special damages claim of Kshs. 7,618,880/-

Holding

The claim was proved by documentary evidence including a counter-signed schedule of payment amounting to an acknowledgement of payment by the Defendant; the sum was awarded.

Reasoning

The claim was for a specific figure. Special damages must be specifically pleaded and proved. The Plaintiff produced the agreement dated 21 December 2008, a banker's cheque, and a schedule of payments (PE 4) counter-signed by both parties, which constituted an acknowledgement of payment. The Defendant did not enter appearance or file a defence, so the evidence was uncontroverted. The court was satisfied the claim was proved and awarded the full amount.

p. 2
02

Entitlement to general damages for breach of contract

Holding

The claim for general damages for breach of contract was disallowed.

Reasoning

Relying on Consolata Anyango Ouma v South Nyanza Sugar Company Ltd, the court held that damages for breach of contract aim at restitutio in integrum, measured per Hadley v Baxendale as losses arising naturally or within contemplation of the parties. Such damages are special damages, not general damages, and must be pleaded and proved. Accordingly, the general damages claim could not stand.

p. 2
03

Interest from 3.10.2007

Holding

Interest awarded only at court rates from the date of filing suit, not from 3.10.2007.

Reasoning

The court's discretion on interest is under section 26 of the Civil Procedure Act and must be exercised judiciously. Following Jane Wanjiku Wambu v Anthony Kigamba Hato, section 26 applies to interest from filing suit to judgment and from judgment to payment; pre-filing interest requires contractual stipulation, custom, or statutory right. The Plaintiff gave no basis for the 3.10.2007 date, which even predated the 2008 contract, so pre-filing interest was refused.

p. 3

Legal principles established

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  • Special damages must be specifically pleaded and specifically proved before they can be awarded.
  • General damages are not awardable in cases of breach of contract.
  • The court's discretion under section 26(1) of the Civil Procedure Act covers interest from the date of filing suit to judgment, and from judgment to payment; pre-filing interest requires contractual, customary or statutory basis.

Court orders

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  1. 1.Kshs. 7,618,880/- with interest at court's rate from the date of filing suit until payment in full.
  2. 2.Costs of the suit to the Plaintiff.

Authorities

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Legislation

  • Civil Procedure Actsection 26(1)
  • Civil Procedure RulesOrder 10 rule 9

Cases cited (9)

  • Hahn Vs Singh
    (1985) KLR 716
  • Consolata Anyango Ouma Vs South Nyanza Sugar Company Ltd
    (2015) eKLR
  • Kenya Industrial Estates Ltd v Lee Enterprises Ltd
    NRB CA Civil Appeal No. 54 of 2004 [2009] eKLR
  • Kenya Breweries Ltd v Natex Distributors Ltd
    Milimani HCCC No. 704 of 2000 [2004] eKLR
  • Hadley v Baxendale
    (1854) 9 Exch. 341
  • Standard Chartered Bank Limited v Intercom Services Ltd & Others
    NRB CA Civil Appeal No. 37 of 2003 [2004] eKLR
  • Coast Bus Service Ltd v Sisco Murunga Ndanyi & 2 others
    NRB CA Civil Appeal No. 192 of 92 (UR)
  • Charles C. Sande v Kenya Co-operative Creameries Ltd
    NRB CA Civil Appeal No. 154 of 1992 (UR)
  • Jane Wanjiku Wambu Vs Anthony Kigamba Hato & 3 Others
    (2018) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - original jurisdiction over land contracts; Civil Procedure Act and Rules

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, "Peter Kirimi Mwindi v Dorothy Seyanol Moschion [2022] KEELC 192 (KLR)", Case Analysis (2022). ELC 161 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/192/eng@2022-04-21

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