(Being an Appeal from the Judgment/ Decree of Hon. Christine Asuna Okello (PM) delivered on 19 th September 2024 in Ruiru MCCOMMSU No. E013 of 2023)
Introduction
1. This appeal arises from the Judgment of the Magistrate’s Court at Ruiru ( C.A. Okello, PM ) delivered on 19 th September 2024 in Ruiru MCCOMMSU No. E013 of 2023.
Factual History
2. Between 2 nd September and 14 th November 2022, the 1 st respondent supplied animal feed valued at Kshs. 2,163,600/- to the 1 st and 2 nd appellants and 2 nd respondent, with the 3 rd appellant allegedly acting as their agent. Upon receipt, the appellants issued ‘goods received notes’ (GRNs). The 2 nd respondent paid Kshs.175,750/- while the 2 nd appellant issued a cheque for Kshs.511,400/- which was later dishonoured, leading to a penalty of Kshs.702/-.
3. Owing to the foregoing, the 1 st respondent filed an amended plaint dated 24 th November 2023 in Ruiru MCCOMMSU No. E013 of 2023 for relief in the nature of special damages of Kshs. 1,988,552/-, interest on the same from November 2022 and costs of the suit.
4. The 1 st and 2 nd appellants filed their defence dated 14 th November 2023 denying the claim in toto and averring that they were merely acting as the 2 nd respondent’s agents as it was the 2 nd respondent who was supplied with the farm feeds. In the alternative, they averred that it was the 2 nd respondent’s duty to pay, including the dishonoured cheque, which, in any case, was issued on behalf of the 2 nd respondent. The 3 rd appellant filed his defence dated 22 nd January 2024 denying the claim on similar grounds as those advanced by the 1 st and 2 nd appellants.
5. During hearing, PW1, Patrick Mugambi , testified that the 1 st respondent would prepare farm feed, distribute it to Kinoro Njiri Co. Ltd. as well as to the 2 nd appellant and receive payment from either the 1 st and 2 nd appellants, while the 3 rd appellant would sign all the cheques.
6. PW2, Margaret Njeri Gikuyu , the 1 st respondent’s director, reiterated the claim, adding that upon delivery of the farm feed, the 1 st and 2 nd appellants would issue them with a GRN, while the 2 nd respondent and 3 rd appellant made payments. She, however, stated that she was a stranger to the off-taker agreement between the 2 nd respondent and the 3 rd appellant.
7. DW1, Jacob Muturi Reneto , the chairman of the 1 st appellant and 2 nd respondent and a director in the 1 st and 2 nd appellants, testified that deliveries were made to, and all payments were made by, the 2 nd respondent. It was his case that the 2 nd appellant was not supplied with any feeds and payments were made under the express request of the 2 nd respondent. In his view, the 2 nd respondent was liable for the outstanding debt.
8. By a Judgment delivered on 19 th September 2024, the trial Magistrate held that, as per the GRN produced, and not opposed by the appellants, the 1 st respondent established that it supplied farm feeds to the ‘defendant’, without specifying which of the defendants. As for the 3 rd appellant, the trial court took the view that he was directly connected to the 1 st and 2 nd appellants and 2 nd respondent by virtue of the positions he held therein.
9. The learned trial Magistrate also held that the 1 st respondent proved the amount paid, the dishonoured cheque together with the penalties arising therefrom, and the outstanding debt. Accordingly, the court upheld the 1 st respondent’s claim.
The Appeal
10. Disgruntled, the appellants filed a Memorandum of Appeal dated 11 th October 2024 raising various grounds of appeal, that the Learned Trial Magistrate erred in law and fact:
i. By entering Judgment against the appellants despite the fact that the 2 nd , 3 rd and 4 th respondents were district (sic) parties with legal capacity to be sued and the appellants were just agents.
ii. By allowing the 1 st respondent’s claim as against the weight of the evidence tendered.
iii. By failing to appreciate the evidence tendered by the appellants.
iv. By failing to consider the appellants’ submissions despite them being properly filed.
11. Accordingly, they sought that the appeal be allowed, the trial court’s Judgment be set aside and costs of the appeal.
The Appellants’ Submissions
12. In support of their appeal, the appellants filed their submissions dated 1 st September 2025 raising various issues for determination: whether the 1 st respondent proved the existence of a contract with the appellants and the 2 nd respondent; whether the 1 st respondent established its claim of Kshs. 1,988,552/-; and whether the Judgment of the lower court ought to be set aside.
13. In their view, the 1 st respondent did not adduce any contracts, invoices or guarantees linking the appellants to the outstanding debt. They cited Wareham t/a A.F. Wareham & 2 Others vs Kenya Post Office Savings Bank [2004] eKLR to urge that the 1 st respondent had the obligation of proving its case. In this respect, they challenged the trial court's ascription of liability based on mere association. Likewise, they submitted that the trial court erred in awarding special damages, as there was no evidence to support the same, as held in Coast Bus Service Ltd. vs Murunga & Others [1992] eKLR . In like manner, they averred that the award for interest and costs was equally in error.
14. With respect to the award of interest for the period prior to judgment, they submitted that as per Prema Lata vs Peter Musa Mbiyu [1965] EA 592 , such interest is at the court’s discretion and must be reasonable. In their view, the 1 st respondent laid no basis for such an award, and therefore, the trial court erred in awarding the same.
15. In the end, they urged this Court to set aside the impugned Judgment on the grounds set out above.
The 1 st Respondent’s Submissions
16. The 1 st respondent opposed the appeal vide their submissions dated 6 th October 2025 raising two issues for determination: whether the subordinate court erred in fact and law in finding the appellants and the 2 nd respondent jointly and severally liable; and whether the 1 st respondent proved its case within the required standard for civil cases .
17. The 1 st respondent contended that it supplied farm feed to the 1 st and 2 nd appellants, who were all along represented by the 3 rd appellant, noting that the GRNs and invoices and unpaid cheques were not disputed. Furthermore, it urged, the 1 st and 2 nd appellants failed to establish an agency relationship between themselves and the 2 nd respondent. The 1 st respondent contended that at best, the nature of the relationship between the 1 st and 2 nd appellants and the respondent was an in-house issue that had little bearing on their obligations to the 1 st respondent. In this regard, they cited Techard Steam & Power Ltd. vs Mather & Platt; (K) Ltd. [2013] eKLR .
18. In the 1 st respondent’s view, it had established its case on a balance of probabilities, and, therefore, the trial court correctly upheld its claim.
19. The 2 nd respondent did not participate in this appeal.
Analysis and Determination
20. The duty of a first appellate court is set out in Selle v. Associated Motor Boat Co. [1968] EA 123 :
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif –vs- Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).”
21. I have considered the appeal in light of the evidence on record and written submissions filed on behalf of the parties herein. I find that the appeal raises four issues for consideration: whether the 1 st respondent proved the existence of a contract with the appellants and 2 nd respondent; whether the 1 st respondent proved its claim of Kshs. 1,988,552/-; who was liable for the outstanding arrears; and whether the trial court erred in awarding interest to run from November 2022.
22. It is a truism that for a contract to be said to have existed, the party claiming it existed must establish the existence of an offer, acceptance and consideration. See William Muthee Muthami vs Bank of Baroda [2014] eKLR and Lagat vs Co-operative Bank of Kenya Ltd. (Civil Appeal 48 of 2015) [2017] KECA 152 (KLR) . The Court of Appeal in the Lagat Case went on to hold that a contract will be construed to have existed based on the conduct of the parties and what was communicated between them by words.
23. Notwithstanding that some of the invoices are partially illegible, the record shows that the 1 st respondent produced copies of invoices, and the appellants did not oppose the production of or contest the contents of the same. Furthermore, the GRNs indicate that the 1 st respondent supplied animal feed to the 1 st and 2 nd appellants. What is more, the 1 st respondent adduced several cheques drawn by the 2 nd respondent in favour of the 1 st respondent. There being no contradictory evidence, and the 2 nd respondent having failed to participate in the proceedings, I find that the 1 st respondent proved that there existed a contract between itself and the 1 st and 2 nd appellants and the 2 nd respondent, and I uphold this finding by the trial court.
24. Moving on to the issue of whether the 1 st respondent proved its claim, the invoices and GRNs produced correspond to the 1 st respondent’s statement of accounts. In point of fact, the appellants’ witness admitted that goods were delivered to the 2 nd respondent and cheques drawn against the goods so supplied. Notably, looking at the proceedings and evidence from the appellants, and as rightly pointed out by the 1 st respondent, there was no challenge to the invoices, statement of accounts or GRNs. Neither did the appellants mount any opposition to the 1 st respondent’s tabulation, their main contention being that the 2 nd respondent was liable for the arrears.
25. In light of the foregoing, I am in agreement with the trial court that the 1 st respondent proved its claim that it supplied farm feed to the 1 st and 2 nd appellants and the 2 nd respondent. It further proved that arrears emanated from the said supply.
26. As to who was liable for the outstanding arrears, it was the appellants’ case that the goods were supplied to the 2 nd respondent whilst they merely acted as agents to pay for the same. I have anxiously perused the appellants’ documents produced before the trial court, and they make no mention of a principal-agent relationship for purposes of offsetting the 2 nd respondent’s debts. The letters relied upon are unsigned, refer to unattached minutes, and at best disclose internal financial arrangements between the 1 st and 2 nd appellants, and the 2 nd respondent.
27. In fact, the letter dated 26 th February 2022 merely requests the 2 nd appellant to offset the 2 nd respondent’s dues to its suppliers and LPOs against payments due for milk. It further indicates that the payments would be done on a need basis and for goods delivered and receipted at the 2 nd respondent. However, some of the animal feed was received by the 2 nd appellant, and it is not clear what invoices, if any, the 2 nd appellant paid on behalf of the 2 nd respondent. Such an arrangement does not, without more, create an agency relationship enforceable against a third-party supplier.
28. Arguendo, the 1 st and 2 nd appellants were agents of the 2 nd respondent; there was no evidence adduced that it was disclosed to the 1 st respondent. The legal consequence of an undisclosed principal is that the agent remains personally liable. In Anthony Francis Wareheim t/a Wareheim & 2 Others vs Kenya Post Office Savings Bank, Civil Application Nos. Nai 5 & 48 of 2002 cited in City Council of Nairobi vs Wilfred Kamau Githua t/a Githua Associates & Another [2016] KECA 649 (KLR) , the Court of Appeal held that where the principal is disclosed, the agent ought not be sued. The converse proposition must therefore apply.
29. Having established supply of the goods, the 1 st respondent discharged its evidential burden. Accordingly, the evidential burden of proof shifted to the 1 st and 2 nd appellants to prove that they were acting as agents, which they failed to do.
30. With respect to the 3 rd appellant, however, I am not satisfied that the 1 st respondent made its case against him. Beyond signing the cheques and being the director and chairman of the 1 st and 2 nd appellants and the 2 nd respondent, there was no evidential or legal basis to justify the imposition of personal liability to him. This accords with the settled principle that a company is a separate legal entity from its directors. See Salomon vs Salomon & Co. Ltd. (1897) AC 22 .
31. The upshot of the foregoing is that, having failed to demonstrate how and why the 3 rd appellant was liable to pay the outstanding arrears to the 1 st respondent, the trial court erred in its finding in this regard.
32. With respect to the claim for the award of interest from November 2022, under Section 26(1) of the Civil Procedure Act, the award of interest in a money-decree is an issue within the court’s discretion. It is also settled that discretion must be exercised judiciously, not capriciously. The general principle is that an award of interest on special damages is from the date the suit was filed. See Shariff Salim & Another vs Malundu Kikava [1989] eKLR; ICEA Lion General Insurance Co. Ltd. vs Noble Merchants Shipping Ltd. & Another (Civil Appeal 133 of 2019) [2023] KECA 1061 (KLR) .
33. The Court of Appeal in Trans-National Bank Ltd. & 3 Others vs Kangwana & 5 Others (Civil Appeal 94 of 2019) [2025] KECA 1590 (KLR) clarified that pre-suit interest must be founded on contract, statute, or trade usage, and must be both pleaded and proved. In the present case, no such basis was established. The trial court therefore fell into error in awarding pre-suit interest absent any justification. This ground of appeal must therefore succeed.
ORDERS
34. In the end, I make the following orders:
a. The Judgment dated 19 th September 2024 is upheld save that the claim against the 3 rd appellant is hereby set aside.
b. The interest on the outstanding arrears shall run from the date the suit was filed until payment in full.
c. Parties shall bear their own costs.
It is so ordered.
Introduction
1. This appeal arises from the Judgment of the Magistrate’s Court at Ruiru ( C.A. Okello, PM ) delivered on 19 th September 2024 in Ruiru MCCOMMSU No. E013 of 2023.
Factual History
2. Between 2 nd September and 14 th November 2022, the 1 st respondent supplied animal feed valued at Kshs. 2,163,600/- to the 1 st and 2 nd appellants and 2 nd respondent, with the 3 rd appellant allegedly acting as their agent. Upon receipt, the appellants issued ‘goods received notes’ (GRNs). The 2 nd respondent paid Kshs.175,750/- while the 2 nd appellant issued a cheque for Kshs.511,400/- which was later dishonoured, leading to a penalty of Kshs.702/-.
3. Owing to the foregoing, the 1 st respondent filed an amended plaint dated 24 th November 2023 in Ruiru MCCOMMSU No. E013 of 2023 for relief in the nature of special damages of Kshs. 1,988,552/-, interest on the same from November 2022 and costs of the suit.
4. The 1 st and 2 nd appellants filed their defence dated 14 th November 2023 denying the claim in toto and averring that they were merely acting as the 2 nd respondent’s agents as it was the 2 nd respondent who was supplied with the farm feeds. In the alternative, they averred that it was the 2 nd respondent’s duty to pay, including the dishonoured cheque, which, in any case, was issued on behalf of the 2 nd respondent. The 3 rd appellant filed his defence dated 22 nd January 2024 denying the claim on similar grounds as those advanced by the 1 st and 2 nd appellants.
5. During hearing, PW1, Patrick Mugambi , testified that the 1 st respondent would prepare farm feed, distribute it to Kinoro Njiri Co. Ltd. as well as to the 2 nd appellant and receive payment from either the 1 st and 2 nd appellants, while the 3 rd appellant would sign all the cheques.
6. PW2, Margaret Njeri Gikuyu , the 1 st respondent’s director, reiterated the claim, adding that upon delivery of the farm feed, the 1 st and 2 nd appellants would issue them with a GRN, while the 2 nd respondent and 3 rd appellant made payments. She, however, stated that she was a stranger to the off-taker agreement between the 2 nd respondent and the 3 rd appellant.
7. DW1, Jacob Muturi Reneto , the chairman of the 1 st appellant and 2 nd respondent and a director in the 1 st and 2 nd appellants, testified that deliveries were made to, and all payments were made by, the 2 nd respondent. It was his case that the 2 nd appellant was not supplied with any feeds and payments were made under the express request of the 2 nd respondent. In his view, the 2 nd respondent was liable for the outstanding debt.
8. By a Judgment delivered on 19 th September 2024, the trial Magistrate held that, as per the GRN produced, and not opposed by the appellants, the 1 st respondent established that it supplied farm feeds to the ‘defendant’, without specifying which of the defendants. As for the 3 rd appellant, the trial court took the view that he was directly connected to the 1 st and 2 nd appellants and 2 nd respondent by virtue of the positions he held therein.
9. The learned trial Magistrate also held that the 1 st respondent proved the amount paid, the dishonoured cheque together with the penalties arising therefrom, and the outstanding debt. Accordingly, the court upheld the 1 st respondent’s claim.
The Appeal
10. Disgruntled, the appellants filed a Memorandum of Appeal dated 11 th October 2024 raising various grounds of appeal, that the Learned Trial Magistrate erred in law and fact:
i. By entering Judgment against the appellants despite the fact that the 2 nd , 3 rd and 4 th respondents were district (sic) parties with legal capacity to be sued and the appellants were just agents.
ii. By allowing the 1 st respondent’s claim as against the weight of the evidence tendered.
iii. By failing to appreciate the evidence tendered by the appellants.
iv. By failing to consider the appellants’ submissions despite them being properly filed.
11. Accordingly, they sought that the appeal be allowed, the trial court’s Judgment be set aside and costs of the appeal.
The Appellants’ Submissions
12. In support of their appeal, the appellants filed their submissions dated 1 st September 2025 raising various issues for determination: whether the 1 st respondent proved the existence of a contract with the appellants and the 2 nd respondent; whether the 1 st respondent established its claim of Kshs. 1,988,552/-; and whether the Judgment of the lower court ought to be set aside.
13. In their view, the 1 st respondent did not adduce any contracts, invoices or guarantees linking the appellants to the outstanding debt. They cited Wareham t/a A.F. Wareham & 2 Others vs Kenya Post Office Savings Bank [2004] eKLR to urge that the 1 st respondent had the obligation of proving its case. In this respect, they challenged the trial court's ascription of liability based on mere association. Likewise, they submitted that the trial court erred in awarding special damages, as there was no evidence to support the same, as held in Coast Bus Service Ltd. vs Murunga & Others [1992] eKLR . In like manner, they averred that the award for interest and costs was equally in error.
14. With respect to the award of interest for the period prior to judgment, they submitted that as per Prema Lata vs Peter Musa Mbiyu [1965] EA 592 , such interest is at the court’s discretion and must be reasonable. In their view, the 1 st respondent laid no basis for such an award, and therefore, the trial court erred in awarding the same.
15. In the end, they urged this Court to set aside the impugned Judgment on the grounds set out above.
The 1 st Respondent’s Submissions
16. The 1 st respondent opposed the appeal vide their submissions dated 6 th October 2025 raising two issues for determination: whether the subordinate court erred in fact and law in finding the appellants and the 2 nd respondent jointly and severally liable; and whether the 1 st respondent proved its case within the required standard for civil cases .
17. The 1 st respondent contended that it supplied farm feed to the 1 st and 2 nd appellants, who were all along represented by the 3 rd appellant, noting that the GRNs and invoices and unpaid cheques were not disputed. Furthermore, it urged, the 1 st and 2 nd appellants failed to establish an agency relationship between themselves and the 2 nd respondent. The 1 st respondent contended that at best, the nature of the relationship between the 1 st and 2 nd appellants and the respondent was an in-house issue that had little bearing on their obligations to the 1 st respondent. In this regard, they cited Techard Steam & Power Ltd. vs Mather & Platt; (K) Ltd. [2013] eKLR .
18. In the 1 st respondent’s view, it had established its case on a balance of probabilities, and, therefore, the trial court correctly upheld its claim.
19. The 2 nd respondent did not participate in this appeal.
Analysis and Determination
20. The duty of a first appellate court is set out in Selle v. Associated Motor Boat Co. [1968] EA 123 :
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif –vs- Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).”
21. I have considered the appeal in light of the evidence on record and written submissions filed on behalf of the parties herein. I find that the appeal raises four issues for consideration: whether the 1 st respondent proved the existence of a contract with the appellants and 2 nd respondent; whether the 1 st respondent proved its claim of Kshs. 1,988,552/-; who was liable for the outstanding arrears; and whether the trial court erred in awarding interest to run from November 2022.
22. It is a truism that for a contract to be said to have existed, the party claiming it existed must establish the existence of an offer, acceptance and consideration. See William Muthee Muthami vs Bank of Baroda [2014] eKLR and Lagat vs Co-operative Bank of Kenya Ltd. (Civil Appeal 48 of 2015) [2017] KECA 152 (KLR) . The Court of Appeal in the Lagat Case went on to hold that a contract will be construed to have existed based on the conduct of the parties and what was communicated between them by words.
23. Notwithstanding that some of the invoices are partially illegible, the record shows that the 1 st respondent produced copies of invoices, and the appellants did not oppose the production of or contest the contents of the same. Furthermore, the GRNs indicate that the 1 st respondent supplied animal feed to the 1 st and 2 nd appellants. What is more, the 1 st respondent adduced several cheques drawn by the 2 nd respondent in favour of the 1 st respondent. There being no contradictory evidence, and the 2 nd respondent having failed to participate in the proceedings, I find that the 1 st respondent proved that there existed a contract between itself and the 1 st and 2 nd appellants and the 2 nd respondent, and I uphold this finding by the trial court.
24. Moving on to the issue of whether the 1 st respondent proved its claim, the invoices and GRNs produced correspond to the 1 st respondent’s statement of accounts. In point of fact, the appellants’ witness admitted that goods were delivered to the 2 nd respondent and cheques drawn against the goods so supplied. Notably, looking at the proceedings and evidence from the appellants, and as rightly pointed out by the 1 st respondent, there was no challenge to the invoices, statement of accounts or GRNs. Neither did the appellants mount any opposition to the 1 st respondent’s tabulation, their main contention being that the 2 nd respondent was liable for the arrears.
25. In light of the foregoing, I am in agreement with the trial court that the 1 st respondent proved its claim that it supplied farm feed to the 1 st and 2 nd appellants and the 2 nd respondent. It further proved that arrears emanated from the said supply.
26. As to who was liable for the outstanding arrears, it was the appellants’ case that the goods were supplied to the 2 nd respondent whilst they merely acted as agents to pay for the same. I have anxiously perused the appellants’ documents produced before the trial court, and they make no mention of a principal-agent relationship for purposes of offsetting the 2 nd respondent’s debts. The letters relied upon are unsigned, refer to unattached minutes, and at best disclose internal financial arrangements between the 1 st and 2 nd appellants, and the 2 nd respondent.
27. In fact, the letter dated 26 th February 2022 merely requests the 2 nd appellant to offset the 2 nd respondent’s dues to its suppliers and LPOs against payments due for milk. It further indicates that the payments would be done on a need basis and for goods delivered and receipted at the 2 nd respondent. However, some of the animal feed was received by the 2 nd appellant, and it is not clear what invoices, if any, the 2 nd appellant paid on behalf of the 2 nd respondent. Such an arrangement does not, without more, create an agency relationship enforceable against a third-party supplier.
28. Arguendo, the 1 st and 2 nd appellants were agents of the 2 nd respondent; there was no evidence adduced that it was disclosed to the 1 st respondent. The legal consequence of an undisclosed principal is that the agent remains personally liable. In Anthony Francis Wareheim t/a Wareheim & 2 Others vs Kenya Post Office Savings Bank, Civil Application Nos. Nai 5 & 48 of 2002 cited in City Council of Nairobi vs Wilfred Kamau Githua t/a Githua Associates & Another [2016] KECA 649 (KLR) , the Court of Appeal held that where the principal is disclosed, the agent ought not be sued. The converse proposition must therefore apply.
29. Having established supply of the goods, the 1 st respondent discharged its evidential burden. Accordingly, the evidential burden of proof shifted to the 1 st and 2 nd appellants to prove that they were acting as agents, which they failed to do.
30. With respect to the 3 rd appellant, however, I am not satisfied that the 1 st respondent made its case against him. Beyond signing the cheques and being the director and chairman of the 1 st and 2 nd appellants and the 2 nd respondent, there was no evidential or legal basis to justify the imposition of personal liability to him. This accords with the settled principle that a company is a separate legal entity from its directors. See Salomon vs Salomon & Co. Ltd. (1897) AC 22 .
31. The upshot of the foregoing is that, having failed to demonstrate how and why the 3 rd appellant was liable to pay the outstanding arrears to the 1 st respondent, the trial court erred in its finding in this regard.
32. With respect to the claim for the award of interest from November 2022, under Section 26(1) of the Civil Procedure Act, the award of interest in a money-decree is an issue within the court’s discretion. It is also settled that discretion must be exercised judiciously, not capriciously. The general principle is that an award of interest on special damages is from the date the suit was filed. See Shariff Salim & Another vs Malundu Kikava [1989] eKLR; ICEA Lion General Insurance Co. Ltd. vs Noble Merchants Shipping Ltd. & Another (Civil Appeal 133 of 2019) [2023] KECA 1061 (KLR) .
33. The Court of Appeal in Trans-National Bank Ltd. & 3 Others vs Kangwana & 5 Others (Civil Appeal 94 of 2019) [2025] KECA 1590 (KLR) clarified that pre-suit interest must be founded on contract, statute, or trade usage, and must be both pleaded and proved. In the present case, no such basis was established. The trial court therefore fell into error in awarding pre-suit interest absent any justification. This ground of appeal must therefore succeed.
ORDERS
34. In the end, I make the following orders:
a. The Judgment dated 19 th September 2024 is upheld save that the claim against the 3 rd appellant is hereby set aside.
b. The interest on the outstanding arrears shall run from the date the suit was filed until payment in full.
c. Parties shall bear their own costs.
It is so ordered.