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ELCDismissedAppeal from Mombasa CMCC judgment of Hon. Julius Nang'ea delivered July 16, 2013 (exact appeal number not stated in judgment)· [2022] KEELC 2748 (KLR)

Ebrahim & another v Idime Enterprises (Environment and Land Appeal 3 of 2022) [2022] KEELC 2748 (KLR)

Environment and Land Court of Kenya
17 May 2022
2,481 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Landlords lost a Kshs 2.6 million rent claim against their letting agent because they couldn't prove exactly how much rent was owed.

What this practically means

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Executive summary

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This is a first appeal by Mohamed Ali A Ebrahim and Omar A. Ebrahim against the judgment of Hon. Julius Nang'ea delivered at Mombasa on July 16, 2013, in which their claim against their letting agent for unremitted rent was dismissed. The appellants argued that under section 112 of the Evidence Act the burden lay on the respondent agent, as a fiduciary, to account for rents collected, and quantified the arrears at about Kshs 1,493,070 (the plaint claimed Kshs 2,634,070). The respondent, through a preliminary objection and submissions, contended that the appeal was filed out of time without leave under section 79G of the Civil Procedure Act and without the leave required by Order 9 rule 9, and that the liquidated claim for special damages was never strictly proved since no bank statements, tenant testimony or accounts were produced. Matheka J declined to strike the appeal on the procedural objections, invoking Article 159 of the Constitution and the overriding objective (sections 1A and 1B of the Civil Procedure Act), relying on the Salat decision. On the merits, the judge reiterated that a first appeal is a retrial on the evidence and that special damages must be specifically pleaded and strictly proved, citing Provincial Insurance, Capital Fish and Ryce Motors. The agreement produced lacked tenant particulars and rent amounts, the tenants were not called, and the appellants produced no accounts demonstrating the alleged shortfall, whereas the respondent gave detailed evidence of remittances by cheque or cash less 10% commission. Agreeing with the trial magistrate that the claim lacked certainty and specificity, the court found no basis to interfere under Mbogo v Shah and Nkube v Nyamiro and dismissed the appeal with costs.

Key legal issues

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01

Whether the procedural objections (out-of-time filing and change of advocates without leave) defeated the appeal

Holding

The court applied Article 159 of the Constitution and the overriding objective (sections 1A and 1B of the Civil Procedure Act) to hear the appeal despite the irregularities

Reasoning

The respondent raised a preliminary objection under section 79G and Order 9 rule 9. The court held that Article 159 mandates substantive justice without undue regard to technicalities, and relied on the Salat decision on the overriding objective to justify considering the appeal on its merits.

p. 3
02

Who bore the burden of proving the rents collected and unremitted

Holding

The burden lay on the appellants to prove how much rent was due and for which period; the claim was one in special damages requiring strict proof

Reasoning

The court characterized the claim of Kshs 2,634,070 as a liquidated claim/special damages. The agreement produced lacked tenant particulars and rent amounts, the tenants were not called to testify, and the appellants produced no accounts showing the shortfall. Reliance was placed on Provincial Insurance, Capital Fish and Ryce Motors on strict proof of special damages.

p. 4
03

Whether the trial magistrate's findings should be disturbed

Holding

No; the findings were supported by the evidence and an appellate court will not interfere absent misdirection or reliance on no evidence

Reasoning

Applying Mbogo v Shah and Nkube v Nyamiro, the court agreed with the trial magistrate that the plaintiffs' claim lacked certainty and specificity and that the special damages were not proved. The respondent's evidence of payment by cheque or cash less 10% commission was uncontroverted by acceptable proof of the alleged arrears.

p. 5

Legal principles established

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  • Special damages must be specifically pleaded and strictly proved
  • On a first appeal the court must re-evaluate the evidence afresh while making allowance for not having seen the witnesses

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Evidence Act (Cap 80)section 112
  • Civil Procedure Actsection 79G
  • Civil Procedure Actsections 1A and 1B
  • Civil Procedure RulesOrder 9 rule 9
  • Constitution of KenyaArticle 159

Cases cited (10)

  • Kenya Akiba Micro Financing Limited vs Ezekiel Chebii & 14 others
    (2012) eKLR
  • Serraco Limited vs Attorney General
    (2016) eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & others
    (2013) eKLR
  • Kenya Commercial Bank v Kenya Planters Co-operative Union Nai Civil Application No 85 of 2010 (UR) 62 of 2010
  • Gitobu Imanyara & 2 others v Attorney General
    (2016) eKLR
  • Provincial Insurance Co EA Ltd vs Mordekai Mwanga Nandwa
    KSM Civil Appeal No 179 of 1995
  • Capital Fish Limited v Kenya Power and Lighting Company Limited
    (2016) eKLR
  • Ryce Motors Limited & another v Elias Muroki
    (1996) eKLR
  • Mbogo & another v Shah
    (1968) EA 93
  • Nkube v Nyamiro
    (1983) KLR 403
On appeal from
Chief Magistrate's Court, Mombasa
not stated
Jurisdiction invoked
First appeal from the subordinate court (Article 159 of the Constitution invoked; appeal filed pursuant to the Civil Procedure Act)

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, "Ebrahim & another v Idime Enterprises (Environment and Land Appeal 3 of 2022) [2022] KEELC 2748 (KLR)", Case Analysis (2022). Appeal from Mombasa CMCC judgment of Hon. Julius Nang'ea delivered July 16, 2013 (exact appeal number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2748/eng@2022-05-17

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