Kenya Commercial Bank Limited v Kenya Commercial Bank Limited [2010] KECA 171 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed KCB must pay nearly KShs.10 million for goods it failed to return for over two decades.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the value of the detained fixtures, fittings and chattels was properly before Ringera, J for assessment despite not being specifically prayed in the counterclaim
- 2.Whether the value of the goods could be awarded when it was alleged to be unpleaded special damages
- 3.Whether the learned Judge erred in assessing the value of the goods as at the date of his judgment (29.9.2000) rather than as at the date of the consent order of 9th November 1979
Key legal issues
#Scope of the remitted counterclaim before Ringera, J
The learned Judge was right that his exercise was the assessment of the value of the respondent's fixtures, fittings and chattels if not returned, and damages for wrongful detention, pursuant to the Court of Appeal's decision in Civil Appeal No. 131 of 1984.
The counterclaim pleaded return or release of the goods or their value and damages for detention. The appellant never complied with the consent order of 9th November 1979 nor with the Court of Appeal judgment of 11th March 1988 ordering return. Reliance on Order 24 Rule 6(2) justified the assessment; deciding otherwise would amount to sitting on appeal over this Court's own prior decision, which is impermissible.
Whether value of goods could be awarded though not specifically prayed
Yes. The value was pleaded in the body of the counterclaim, the list of goods was annexed, evidence and submissions were led on it, and the issue was left to the court for decision, per Odd Jobs v. Muhia.
Although no prayer specifically sought the value of the fixtures, fittings and chattels, the alternative claim for value was pleaded in the counterclaim and the defence to counterclaim put it in issue. Both parties' counsel gave and challenged evidence on value and made submissions. Following Odd Jobs v. Muhia, a court may decide an un-pleaded issue left to it at trial.
Effective date for assessing the value of the detained goods
The value was properly assessed as at 29th September 2000, the date put forward in evidence, not as at the date of the 1979 consent order.
In principle assessment is at the date of the decree; the relevant decree here was that issuing from Ringera J's judgment on the counterclaim, since the consent order did not decree the counterclaim. The appellant, having failed to return the goods, could not benefit from its own delay. The valuation evidence of DW2 was unchallenged as to the 29.9.2000 date.
Legal principles established
#- A court may base its decision on an un-pleaded issue if, from the course followed at trial, the issue was left to the court for decision.
- Where goods ordered to be returned under a decree are not returned, the alternative claim for their value does not fizzle out and may be assessed under Order 24 Rule 6(2) of the Civil Procedure Rules.
Court orders
#- 1.The appeal is dismissed
- 2.The respondent will have costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1728 of 1979
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution and the Appellate Jurisdiction Act (appeal from a decree of the High Court)
Relief refused
#Re-assessment of the value of the fixtures, fittings and chattels as at 9th November 1979
The relevant decree for assessment was the decree issuing from the trial Judge's judgment; the consent order did not dispose of the counterclaim for value
Dismissal of the counterclaim for failure to plead the value of the goods as special damages
The value was pleaded in the body of the counterclaim and the issue was fully canvassed at trial
Costs
The respondent will have costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, we find no reason to disturb the learned Judge’s decision. It will stand. This appeal lacks merit. It is dismissed. The respondent will have costs of the appeal.
a court may base its decision on an un-pleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision.
I will therefore proceed to assess the value of the detained goods not as it stood in 1979 but as it stands today.
That is the situation that necessitated reliance on Order 24 Rule 6 (2) by Apaloo, J.A, and asking us to decide otherwise is seeking that we sit on appeal on this Court’s decision. That cannot be proper in law.
Issues in the judgment
#The judgment refers to the 1981 confirmation of Harris J's order as 'Civil Appeal No. 43 of 1980' in one place while describing the first appeal without a number elsewhere; the appeal numbers of prior proceedings are inconsistently recited.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank Limited v Kenya Commercial Bank Limited [2010] KECA 171 (KLR)", Case Analysis (2010). Civil Appeal No. 83 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/171/eng@2010-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.