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ELCPartially AllowedNot stated in the ruling (Environment and Land Court suit arising from Plaint dated 19th November, 2019)· [2024] KEELC 4512 (KLR)

James Mwangi Wambui v Frans Investment Limited

Environment and Land Court
8 March 2024
7,439 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Mombasa reviewed a tenant's judgment upwards to Kshs. 62 million, confirming that only sworn evidence, not written submissions, can support damages.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni, J) determined a Notice of Motion dated 30th November, 2023 by the Plaintiff, James Mwangi Wambui, seeking review of the Court's judgment of 28th November, 2023. The application was brought under Sections 1A, 1B, 3A, 80 and 99 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010, seeking clarification of the value awarded under prayer (c) of the Plaint. The Defendant opposed via Grounds of Opposition, arguing that no review grounds were established, that the Court had awarded only Kshs. 2,000,000, and that the Court could not sit on appeal over its own judgment. The Court framed two issues: whether a case for review was made out, and who should bear costs. It recited the law on review under Section 80 and Order 45, and applied authority that 'any other sufficient reason' need not be analogous to the enumerated grounds. Although it accepted that the figures in paragraph 83 of the judgment originated from the Plaintiff's submissions - which are not evidence - the Court found, on re-examination of the record and the testimony of PW-2, that there was an error apparent on the record regarding the reimbursement claim and the damages for derogation from grant and constructive eviction. It allowed the application strictly with respect to the damages orders, set aside the judgment for purposes of review, and entered judgment in the pleaded amounts: Kshs. 24,600,000 for derogation from grant, Kshs. 24,600,000 for unlawful constructive eviction, and Kshs. 12,847,350 for reimbursement of detained goods, totalling Kshs. 62,047,350. Prayer 1 (permanent injunction) was not reviewed as the tenancy had been terminated. There were no orders as to costs.

Key legal issues

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01

Whether the application disclosed grounds for review of the judgment of 28th November, 2023

Holding

Although the applicant failed to demonstrate discovery of new matter or an error apparent on the face of the record as pleaded (the amounts relied on came from submissions, not evidence), the court found errors on the record relating to the quantification of damages and exercised its discretion under 'any other sufficient reason' to allow review limited to the damages orders

Reasoning

The court noted that the figures in paragraph 83 of the judgment were drawn from the plaintiff's submissions, which are not evidence. However, reviewing the merits, it found the reimbursement of Kshs. 12,847,350 was in fact testified to by PW-2, making an error apparent on the record, and found an error on the damages for derogation and constructive eviction, warranting review of those orders only.

p. 12
02

Whether submissions can constitute evidence supporting an award

Holding

No. Submissions are not evidence unless expressly adopted as such; no judgment can be based on written submissions

Reasoning

The court relied on authority holding that submissions merely focus the court's attention on each side's case and are 'marketing language'; they cannot substitute for pleadings and testimony. The figures in paragraph 83 of the judgment originated from the plaintiff's submissions rather than the evidence, which the court identified as an error on the record.

p. 8
03

Whether the damages awarded at trial were sustainable

Holding

The court found an error on the record warranting review of the damages for derogation from grant and constructive eviction and quantified the awards in the amounts pleaded

Reasoning

The court found that the plaintiff had vacated the premises and could not quantify his claim on the basis of unpaid rent, but accepted the evidence of PW-2 on the value of goods detained and the pleaded figures, concluding there was an error warranting review and entering judgment in the pleaded totals.

p. 13

Legal principles established

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  • Section 80 of the Civil Procedure Act confers the power of review while Order 45 sets out the rules restricting the grounds for review
  • 'Any other sufficient reason' for review need not be analogous to the other enumerated grounds, since such restriction would clog the unfettered right given by Section 80
  • Submissions do not constitute evidence and a judgment cannot be based on written submissions
  • Special damages must be specifically pleaded and strictly proved

Court orders

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  1. 1.The Notice of Motion application dated 30th November, 2023 is found to have merit and is allowed strictly with regards to the orders on the damages
  2. 2.The judgment delivered on 28th November, 2023 is set aside for purposes of review
  3. 3.Judgment entered for the damages amount pleaded under Prayers (b) and (c) of the Plaint: General Damages for derogation from grant of Kshs. 24,600,000; Damages for unlawful constructive eviction of Kshs. 24,600,000; Reimbursement of the value of Goods detained of Kshs. 12,847,350; total amount pleaded of Kshs. 62,047,350 as at 23rd May, 2023
  4. 4.Prayer 1 of the Plaint on the permanent injunction shall not be reviewed as the tenancy agreement has already been terminated
  5. 5.There shall be no orders as to costs
Jurisdiction invoked
Sections 1A, 1B, 3A, 80 and 99 of the Civil Procedure Act, Cap. 21 and Order 45 of the Civil Procedure Rules, 2010

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, "James Mwangi Wambui v Frans Investment Limited", Case Analysis (2024). Not stated in the ruling (Environment and Land Court suit arising from Plaint dated 19th November, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4512/eng@2024-03-18

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