Shaheen Kossar v Razak Maqbool Ahmed & another [2019] KECA 909 (KLR)
The bottom line
#Kenya's Court of Appeal enforced a Kshs 7 million loan contract, ruling that unproven forgery claims and a non-advocate witness cannot invalidate a freely signed agreement.
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 contract dated 1st September 2006 was valid and enforceable notwithstanding the appellant's denial of signature and allegation of forgery
- 2.Whether the contract was invalid or unenforceable because it was witnessed by a person who was not an advocate
- 3.Whether the appellant was a willing signatory to the contract
- 4.Whether there was a dispute between the parties capable of being referred to arbitration under the contract and the Arbitration Act
Key legal issues
#Validity of the contract of 1st September 2006 notwithstanding allegations of forgery and unwilling signature
The contract was valid and binding. The appellant produced no evidence of forgery, and her conduct - the 'Discharge of Contract' she signed, and part-payments made through cheques she or her husband could sign as mandated account holders - showed she was bound by the contract.
The court found overwhelming evidence that the appellant, in financial straits, borrowed Kshs.7,000,000/- from her siblings who paid her contractor directly. She attempted to vary the agreement via a 'Discharge of Contract' she signed, and her husband drew cheques towards repayment. Her allegations of fraud, unwilling signature and defective attestation were attempts to escape contractual obligations. Fraud required strict proof which was absent.
Whether the contract was unenforceable for having been witnessed by a non-advocate
No. The witness, Jason A.N. Namasake, did not draw the contract and nowhere was it indicated he acted as an advocate; a mere attesting witness need not be an advocate.
The respondents themselves drew and prepared the contract. Namasake was only a witness, albeit a belated one, when registration became necessary. Since the contract did not indicate he drew or attested it in his capacity as an advocate, his professional qualification was irrelevant. Heavy weather could not be made of a witness on the basis of non-qualification as an advocate.
Referral of the dispute to arbitration under the contract
The dispute was properly referable to arbitration; the trial court's confirmation of the arbitrator's appointment was upheld, the appeal having been dismissed in its entirety.
Having upheld the validity of the contract containing the arbitration clause naming Mohamed Yunis Sroya as arbitrator, the court found no basis to disturb the High Court's order confirming the appointment. The appellant's contentions - no signature, no dispute, illegal contract - all failed on the evidence, leaving the arbitration agreement intact and enforceable.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence and draw its own independent conclusions, while bearing in mind that it did not see or hear the witnesses.
- A person who merely witnesses an agreement need not be an advocate, and no objection lies to a contract on the basis that the attesting witness was not an advocate where he did not draw the contract.
- Fraud must be specifically pleaded with particulars on the face of the pleading, and allegations of fraud must be strictly proved to a standard above a mere balance of probability.
- Parties of full age and competent understanding who freely and voluntarily enter into contracts are bound by them, and courts will enforce such contracts rather than limit freedom of contract on grounds of unconscionability.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi Civil Suit No 29 of 2013 (O.S.)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (appeal against the Ruling and Order of the High Court)
Relief refused
#The appellant's appeal against the High Court ruling confirming the appointment of the arbitrator and granting the Originating Summons prayers
The court found no merit: the contract was valid, the forgery allegation unproven, and the appellant was attempting to escape her contractual obligations
Costs
Appeal dismissed with costs to the respondents
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.
The upshot of the above is that we find no merit in this appeal. It is dismissed with costs to the respondents.
A party witnessing an agreement need not be an advocate.
allegation of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probability is required.
It is well established that fraud must be specifically pleaded and the particulars of the fraud alleged must be stated on the face of the pleading.
Our mandate therefore, is to reconsider the evidence, re-evaluate it and draw our own independent conclusion.
their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice
Issues in the judgment
#The judgment records the title documents inconsistently as Grant No I.R. 9770/1(d)-L.R. No 209/118/96 in the Originating Summons, grant No. L.R. 97770 in the contract extract, and grant no. IR 97770 in counsel's submissions - three different renderings of the title number.
The attesting witness is referred to variously as Jason A.O. Namasake and Jason A.N. Namasake within the same judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shaheen Kossar v Razak Maqbool Ahmed & another [2019] KECA 909 (KLR)", Case Analysis (2019). Civil Appeal No 169 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/909/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.