Boniface Njiru t/a Njiru Boniface & Co. Advocates v Wainaina (Civil Appeal 229 of 2015) [2021] KECA 225 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an advocate who admitted receiving Kshs 6.5 million in land sale funds must refund it, because general denials are no defence.
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 learned judge applied the wrong principles by conflating the jurisdiction to enter summary judgment with that of striking out pleadings, and whether judgment on admission was properly entered against the appellant
- 2.Whether the High Court became functus officio upon the filing of the appeal and therefore acted without jurisdiction in issuing its ruling of 6th October 2016/2017
Key legal issues
#Whether judgment on admission was properly entered against the appellant advocate
Yes. The appellant admitted receiving the entire purchase price of Kshs 6,500,000.00 through his letters, and his defence contained only general denials; the judge was right to enter judgment on admission.
The appellant, acting as advocate for both parties, admitted in correspondence dated 23rd January 2009 and 16th August 2012 that he had received the full purchase price. His defence denied the claim generally but never denied receipt of the funds. The vendor denied receiving any money from the appellant, so the whereabouts of the funds remained unexplained. Judgment on admission was therefore properly entered.
Whether the High Court was functus officio when it issued its ruling of 6th October 2016 correcting the judgment of 30th July 2015
The Court declined to entertain this ground because the ruling of 6th October 2016 was never appealed against, and no prejudice was demonstrated.
The Court noted that the ruling of 6th October 2016 still stands and there is no notice of appeal against it on record. The appellant therefore could not challenge it collaterally in the instant appeal, and it had not been demonstrated that he suffered any prejudice from the subsequent ruling. The ground accordingly failed.
Legal principles established
#- A first appeal to the Court of Appeal is by way of retrial; the Court is not bound by the trial judge's findings of fact where the judge failed to take account of particular circumstances or probabilities or where the impression of the demeanour of a witness is inconsistent with the evidence generally
- Judgment may properly be entered on admission where a defendant admits receipt of the purchase price and the defence amounts to mere general denials and evasion
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Nairobi High Court Civil Suit No. 202 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (as a court of first instance) under the Court of Appeal's appellate jurisdiction
Relief refused
#The appellant's prayer to allow the appeal with costs
The appeal was found to be devoid of merit; the appellant had admitted receiving the entire purchase price and the defence contained only general denials
The appellant's challenge to the High Court ruling of 6th October 2016/2017 as being made without jurisdiction (functus officio)
The ruling was never appealed against and no prejudice was demonstrated
Costs
Appeal dismissed in its entirety with costs to the respondent
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.
Taking into totality all the circumstances in this case, the appellant's appeal is devoid of merit. It is hereby dismissed in its entirety with costs to the respondent.
What is undisputable is that indeed the purchase price passed through the appellant's hands.
In view of the foregoing, we find no reason to fault the learned judge for entering judgment on admission against the appellant.
Judgment having been entered against the appellant on admission, he cannot then turn around and contend that he was not given a chance to be heard.
In any event, it has not been demonstrated to this Court that the appellant suffered any prejudice as a result of the subsequent ruling.
Issues in the judgment
#The judgment gives inconsistent dates for the sale agreement (27th November 2008 at paragraph 6 but 17th November 2008 at paragraph 16)
The judgment gives inconsistent dates for the reviewed ruling - 6th October 2016 in the memorandum of appeal and the Court's analysis, but 6th October 2017 in the appellant's submissions and the respondent's response
The memorandum of appeal is dated variously 7th September 2015 and 7th September 2019 within the same judgment
The plaint is stated to be dated 27th May 2013 yet payments are pleaded as having been made by 20th November 2008 and 11th April 2009, with interest claimed from 11th April 2006
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boniface Njiru t/a Njiru Boniface & Co. Advocates v Wainaina (Civil Appeal 229 of 2015) [2021] KECA 225 (KLR)", Case Analysis (2021). Civil Appeal No. 234 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/225/eng@2021-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.