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ELCPartially AllowedELC Appeal (Mombasa) – Memorandum of Appeal dated 4th November, 2019; appeal from Mombasa CMCC No. 710 of 2017· [2024] KEELC 5165 (KLR)

Khalif v Mwachiude (Environment and Land Appeal 11 of 2021) [2024] KEELC 5165 (KLR)

Environment and Land Court
9 July 2024
8,500 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court upheld a Kshs. 9.18 million land refund but set statutory interest at 6% because the original judgment was silent.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Mombasa (L.L. Naikuni, J) against the judgment of the Chief Magistrate's Court (Hon. E.K. Makori) delivered on 15th October 2019 in Mombasa CMCC No. 710 of 2017. The underlying suit concerned a failed sale of Plot No. 833/I/MN Mkomani for Kshs. 10,000,000. The Respondent purchaser paid a total of Kshs. 9,181,200 (including Kshs. 3,181,200 acknowledged in writing for perfecting the title), but the Appellant vendor failed to deliver a Title Deed and vacant possession, and the trial court entered judgment for a refund of Kshs. 9,181,200 with costs and interest from 1st February 2016. The Appellant sought reduction of the award to Kshs. 6,000,000 free of interest, contending that the Kshs. 3,181,200 was unproven special damages, that an Indenture dated 21st March 2016 was a valid title, and that interest should not be awarded. Guided by the first-appeal principles in Kenya Ports Authority v Kuston and Peter v Sunday Post, the court upheld the principal award, finding the trial court had properly evaluated the case. On interest, the court held that since the trial decree was silent on the rate, Section 26(2) of the Civil Procedure Act deems interest at 6% per annum, with interest on costs at 14% under Section 27(2), and remitted computation of the decretal sum to the trial court. The Appellant's request for a year to pay was left to the trial court's discretion under Order 21 Rule 12, and execution was restrained pending recomputation. The appeal was partially allowed with each party bearing its own costs.

Key legal issues

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01

Whether the trial court erred in awarding Kshs. 3,181,200/- as unproven special damages

Holding

The trial court's award of the full sum of Kshs. 9,181,200/- was upheld; the receipt of the whole sum was acknowledged and the trial court had properly evaluated the case.

Reasoning

The court noted that the Appellant signed a cash acknowledgement on 13th June 2016 acknowledging receipt of Kshs. 3,181,200/-, making a total of Kshs. 9,181,200/-. The trial court had examined the facts and concluded the sums were paid towards the purchase price and perfecting the title. The appellate court declined to vary that finding, holding the trial court had properly evaluated the case as it was.

p. 12
02

The applicable rate of interest where the trial decree is silent on the rate

Holding

The part of the trial orders failing to specify an interest rate was altered: statutory interest of 6% per annum applies to the sums awarded under Section 26(2) of the Civil Procedure Act, and 14% on costs under Section 27(2); computation remitted to the trial court.

Reasoning

The court distinguished between the discretionary power under Section 26(1), guided by the Chief Justice's Practice Note setting the court rate at 14%, and the mandatory deeming provision of Section 26(2), which applies where the decree is silent on further interest. Since the trial decree specified no rate, Section 26(2) deems interest at 6% per annum; interest on costs is separately provided at 14% per annum under Section 27(2).

p. 14
03

Whether the Appellant should be allowed a year to refund the decretal sum

Holding

The request was not granted directly; the discretion to order instalment payment lies with the trial court under Order 21 Rule 12, which will also determine the mode of payment upon reassessment.

Reasoning

The court accepted it was an appropriate case for payment by instalments given the public nature of the appellant school with exchequer funding, but held that the discretion rests with the trial court that passed the decree. Invoking the principle in Mbogo v Shah that an appellate court may not lightly interfere with a trial court's discretion, the mode of payment was left to the trial court when reassessing the decretal sum at 6% interest.

p. 15

Legal principles established

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  • Where a decree is silent on the rate of further interest, statutory interest at 6% per annum applies under Section 26(2) of the Civil Procedure Act, while interest on costs is capped at 14% per annum under Section 27(2)
  • A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The appeal filed through a Memorandum of Appeal dated 4th November, 2019 and a Record of Appeal be and is hereby partially allowed with each party bearing its own costs
  2. 2.The Honourable Court shall not touch the verdict in terms of the amount awarded by the Trial Court being a refund of Kshs. 9,181,200/- but alters the part of the orders of the trial Court which did not indicate the interest rate payable on the refund which on costs on the basis of 6% on the sums awarded by the judgment as stipulated in Section 26 (2) of the Civil Procedure Act and 14% on the costs, as provided by Section 27(2) of the Civil Procedure Act, 2010
  3. 3.The Respondent is restrained from executing the decrees of the trial court until such computation of the decretal sum has been done, or until further orders of the trial court
  4. 4.Each party shall bear its costs of the Appeal

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21Section 79B
  • Civil Procedure Act, Cap. 21Section 78 (Powers of appellate court)
  • Civil Procedure Act, Cap. 21Section 26 (Interest), including Section 26(2)
  • Civil Procedure Act, Cap. 21Section 27 (Costs), including Section 27(2)
  • Civil Procedure Rules, 2010Order 42 Rules 11, 13 and 16
  • Civil Procedure Rules, 2010Order 21 Rule 12
  • Constitution of Kenya, 2010Referenced generally

Cases cited (9)

  • WMT & Another (Suing in their own Capacity and as Administrator of the Estate of the Late ETM) v Sarova Hotels Limited t/a Sarova Whitesands Beach Resort & SPA
    [2021] CKLR
  • Marilyn Indombera Ayiero v Samarose Investments
    (2019) eKLR
  • John Mungai Murango and Another v Jeremiah Mukoma
  • Kenya Ports Authority v Kuston (Kenya) Ltd
    (2009) 2 EA 212
  • Peter v Sunday Post Limited
    1958 E.A. 424
  • Highway Furniture Mart Limited v Permanent Secretary Office of The President & another
    [2006] eKLR
  • Later v Mbiyu
    [1965] EA 592
  • Lwanga v Centenary Rural Development Bank
    [1999] 1 EA 175
  • Mbogo & Anor. v Shah
    (1968) EA 93
On appeal from
Chief Magistrate's Court at Mombasa
Mombasa CMCC No. 710 of 2017
Jurisdiction invoked
First appellate jurisdiction under Section 78 of the Civil Procedure Act, Cap. 21, read with Section 79B of the Civil Procedure Act and Order 42 Rules 11, 13 and 16 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, "Khalif v Mwachiude (Environment and Land Appeal 11 of 2021) [2024] KEELC 5165 (KLR)", Case Analysis (2024). ELC Appeal (Mombasa) – Memorandum of Appeal dated 4th November, 2019; appeal from Mombasa CMCC No. 710 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5165/eng@2024-07-09

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