Ebrahim & another v Idime Enterprises (Environment and Land Appeal 3 of 2022) [2022] KEELC 2748 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the procedural objections (out-of-time filing and change of advocates without leave) defeated the appeal
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
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.
Who bore the burden of proving the rents collected and unremitted
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
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.
Whether the trial magistrate's findings should be disturbed
No; the findings were supported by the evidence and an appellate court will not interfere absent misdirection or reliance on no evidence
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs
- 2.It is so ordered
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.