Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
High CourtDismissedCivil Appeal No. 174 of 2018

Lucas Ahula Ocheyo & Another v Al-Hyder Trading Company Limited & Another

High Court of Kenya
9 April 2020
2,681 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

If you breach a contract, even if you pay later, the seller can legally demand penalties and withhold property unless they clearly waived their rights.

What this practically means

#

Executive summary

#
This is a first appeal from the judgment of Hon. TM Mwangi, Senior Principal Magistrate, in Kakamega CMCCC No. 203 of 2015, delivered on 28th November 2018, which dismissed the appellants' suit seeking an order that the respondents hand over the registration certificate and logbook for motor vehicle KBP 892H. The appellants had jointly purchased the vehicle from the 1st respondent on 6th July 2011 for Kshs. 750,000.00, paying Kshs. 500,000.00 as a deposit and the balance of Kshs. 250,000.00 in monthly instalments of Kshs. 31,250.00 over 8 months, completing payment on 14th April 2015. The respondents then demanded a further Kshs. 130,000.00 and threatened repossession. The appeal raised four grounds of error against the trial court's findings. Only the appellants filed written submissions. W. Musyoka J applied the trite principle that a defence unsupported by evidence remains mere allegations, but found that even the appellants' own evidence showed they completed payment years outside the contractual 8-month period, breaching clause 5 of the agreement. Relying on Banning v Wright and 748 Air Services Ltd v Munyi, the court held that the appellants pointed to no conduct by the respondents demonstrating waiver of the right to recover the property on default. The Kshs. 130,000.00 was found to be the 30% default penalty under clause 28, with no evidence of illegality, and the respondents were justified in withholding the logbook since repossession under clause 11 was not the absolute or only remedy. The appeal was dismissed, affirming the trial court's judgment.

Key legal issues

#
01

Effect of a defendant's failure to adduce evidence

Holding

A defence unsupported by evidence remains mere allegations and the plaintiff's evidence is uncontroverted; however, this did not assist the appellants because their own evidence showed breach

Reasoning

The court adopted the trite position from Motex Knitwear, Trust Bank and Janet Kaphiphe Ouma that unchallenged pleadings remain unsubstantiated. Yet even taking the appellants' own evidence, payment was completed in April 2015 against an April 2012 contractual deadline, establishing breach.

p. 2
02

Waiver and estoppel from accepting late payment

Holding

The respondents' acceptance of late instalments did not waive their rights; the appellants pointed to no action demonstrative of waiver

Reasoning

Applying Banning v Wright and 748 Air Services Ltd v Munyi, waiver requires conduct evincing abandonment of a right. The appellants, who themselves breached the contract, could not show any step by the respondents waiving the right to recover the property in default of payment.

p. 3
03

Whether the Kshs. 130,000.00 demand was an unlawful penalty

Holding

Clause 28 of the contract provided for a 30% penalty on default; the Kshs. 130,000.00 was that contractual penalty and the appellants proved no illegality

Reasoning

The court agreed with the trial court that the sum corresponded to the 30% default penalty written into the very agreement the appellants relied on, and they adduced no evidence that it was an illegal levy.

p. 3
04

Whether the respondents were justified in withholding the logbook

Holding

Yes - there was a clear breach of contract by the appellants, and repossession under clause 11 was not the absolute or only remedy, clause 31 requiring the purchaser to clear the whole remaining balance upon repossession

Reasoning

Reading clauses 11, 25 and 31 together, repossession was not the exclusive remedy and the 30% penalty applied on default; hence waiver was not an option and transfer of the logbook before payment of the penalty was properly refused.

p. 3

Legal principles established

#
  • Where a party files a defence but fails to adduce evidence at the hearing, its pleadings remain mere statements of fact and the plaintiff's evidence stands uncontroverted
  • Waiver may arise from conduct evidencing an intention to abandon a right, but must be demonstrated by some action or step by the party said to have waived it

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.Costs implicitly follow the dismissal (no separate costs order stated)
On appeal from
Senior Principal Magistrate's Court, Kakamega
Kakamega CMCCC No. 203 of 2015
Jurisdiction invoked
First appeal from the magistrate's court under the Civil Procedure Act (appeal as of right from the subordinate court's judgment and decree)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lucas Ahula Ocheyo & Another v Al-Hyder Trading Company Limited & Another", Case Analysis (2020). Civil Appeal No. 174 of 2018. Source: 

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