https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8498

Nairobi City County v Iris properties Ltd & another (Civil Appeal E234 of 2021) [2026] KEHC 8498 (KLR) (Civ) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 8498 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E234 of 2021 AC Mrima, J May 29, 2026 Between Nairobi City County Appellant and Iris properties Ltd 1st Respondent Proland Ltd 2nd Respondent (Being an appeal against the Ruling and Order of Honourable C.A. Muchoki (Senior Deputy Registrar) in JR Case No. 433 of 2009 delivered on 7 th day of April 2021) Judgment Background: 1.The dispute before this Court traces back to an arbitration award delivered on the 5th November 2001, which awarded Iris Properties Limited and Proland Limited, the Respondents herein, a sum of Kshs. 35,000,000/- against the then City Council of Nairobi, the predecessor of the now Nairobi City County, the Appellant herein. 2.The Respondents successfully applied to have the award enforced as a decree of the High Court in High Court Miscellaneous Application No. 399 of 2002 on 16th September 2002. Subsequently, on 17th March 2011, the Court, in HCJR No. 433 of 2009, issued an order of mandamus compelling the Appellant to pay the decretal sum of Kshs. 35,000,000/- plus interest compounded at the Court rate of 12% per annum from 25th September 2002, until payment in full. 3.Over the years, the Appellant made various payments towards the satisfaction of the decree. However, a dispute arose between the parties regarding the exact computation of the amounts paid and the balance outstanding. The differences in accounting and calculations prompted this Court [Hon. Lady Justice P. Nyamweya (as she then was)] to direct the Deputy Registrar to compute the outstanding decretal sum and accrued interest. Pursuant to the directions, the Hon. Senior Deputy Registrar conducted the computation and delivered a ruling on the 7th April, 2021. He found that the Appellant owed the Respondents an outstanding balance of Kshs. 7,638,778.75. 4.Aggrieved, the Appellant preferred the instant appeal. The Appeal: 5.The Appellant filed a Memorandum of Appeal dated 28th April 2021, challenging the ruling of the learned Senior Deputy Registrar on the following grounds: -i.The Learned Senior Deputy Registrar errored in law and in fact in failing to find that the Respondents herein had been overpaid by the Appellant a sum of Kshs. 22,841,619.90 which amount continues to attract compound interest at the rate of 12% per annum from February 2021 until payment in full.ii.The Learned Senior Deputy Registrar errored in law and in fact in finding that the Appellant owes the Respondents a sum of Kshs. 7,638,778.75.iii.The Learned Senior Deputy Registrar errored in law and in fact in failing to first deduct a sum of Kshs. 5,000,000/- paid on 31/9/2012 before computing the interest accrued between September 2012 and October 2012.iv.The Learned Senior Deputy Registrar errored in law and in fact in improperly computing the principal sum plus accrued interest for the year 2003. 6.The Appellant then prayed for judgment to be entered as against the Respondents jointly and severally for: -1.This Appeal be allowed.2.The Ruling and Order of the Learned Senior Deputy Registrar given at Nairobi on 7th day of April 2021 be set aside.3.The Respondents be compelled to pay the Appellant a sum of Kshs. 22,841,619.90 plus compound interest at the rate of 12% per annum from February 2021 until payment in full.4.Costs of this Appeal plus interes thereon be awarded to the Appellant. 5.…….. The Submissions: 7.In its written submissions dated 13th June 2025, the Appellant faulted the Learned Deputy Registrar for failing to properly account for the payments made and for relying on wrong principles during the computation. The Appellant submitted that it faithfully serviced the decree and ultimately paid a total of Kshs. 178,083,794.00, thereby overpaying the Respondents by Kshs. 22,841,619.90. The Appellant contended that the bank statements and statement of accounts it adduced at the trial Court constituted prima facie evidence of the existence of the accounts and the payments made. The Appellant defined the concept of prima facie evidence by reference to the decision in Nguruman Limited -vs- Jan Bonde Nielsen & 2 others [2014] eKLR, Republic -vs- Khalumi & another [2024] eKLR, and Republic -vs- Abdi Ibrahim Owl [2013] eKLR. 8.It relied on Section 37 of the Evidence Act to assert that entries in books of account regularly kept in the course of business are admissible. To buttress the evidentiary weight of the documents, the Appellant referred the Court to the case of Trust Bank Limited -vs- Paramount Universal Bank Limited & 2 Others [2009] eKLR, to emphasize the binding nature of bank records. Further to the foregoing, the Appellant drew parallels between the Deputy Registrar’s computation exercise and the taxation of a bill of costs by a Taxing Master. It argued that a Court can set aside such a decision if it is based on an error of principle, specifically the failure to take into account relevant factors including the uncontroverted bank statements. The Appellant drew support from the authority in First American Bank of Kenya -vs- Shah & Others [2002] 1 EA 64, Pineapples Edge Limited -vs- Kipkenei & Co Advocates [2025] eKLR, Premchand Raichand Limited & Another -vs- Quarry Services of East Africa Limited and Another [1972] E.A 162, and Arthur -vs- Nyeri Electricity Undertaking [1961] E.A 492. The Respondents’ case: 9.Despite being duly served, as confirmed by the record on 16th December 2025, the Respondents neither filed any response to the appeal, nor did they file any submissions to controvert the Appellant’s case. Nevertheless, this Court is duty bound to consider the appeal on its merit. Analysis and Determination: 10.Having carefully considered the record and the Appellant’s submissions, the following issues crystallize for determination: -i.Whether the Learned Deputy Registrar relied on wrong principles in computing the decretal amount owed.ii.The propriety of the claim of overpayment. 11.The role of this Court as a first appellate Court, in the context of this appeal, is to re-evaluate the evidence tendered before the Hon. Registrar and reach its own independent conclusions. Such duty was enunciated in the longstanding case of Selle & Another -vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123) where the Court observed;…. Briefly put, …. this Court must reconsider the evidence, evaluate it itself and draw its own conclusions ... 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 demeanour of a witness is inconsistent with the evidence in the case generally 12.Similarly, in Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the following was said;… This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority vs Kustron (Kenya) Limited 2000 2EA 212. 13.With the foregoing, this Court will, hence, consider the issues. (a) Whether the Learned Deputy Registrar relied on wrong principles in computing the decretal amount owed: 14.In assessing this issue, this Court must examine the mandate given to the Deputy Registrar and the evidentiary record upon which the Registrar based her decision. The Ruling of her Ladyship dated 11th December 2020, in directing the Hon. Deputy Registrar stated as follows in Order (ii) : -…to compute the sums if any of the decretal sum and the interest thereon that remained unpaid to the ex-parte applicants, taking into account the various ruling, consents and admissions by the parties… 15.It is evident that the directions were strictly mathematical and evidentiary, namely; to ascertain what had been paid by the Appellant against the Kshs. 35,000,000/- principal plus 12% annual compound interest running from 25th September, 2002. In executing the foregoing mandate, the Deputy Registrar was bound by the fundamental rules of evidence, specifically section 107 of the Evidence Act. It provides thus;107.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist 16.The Appellant discharged its burden of proof by providing detailed Statement of Accounts and a tabulated statement of accounts detailing periodic payments, which amounted to Kshs. 178,083,794.00. The payments were further corroborated by certified bank statements and Real Time Gross Settlement (RTGS) transfer receipts from the Central Bank of Kenya and Kenya Commercial Bank Limited. 17.Section 37 of the Evidence Act provides thus;37.Entries in books of account.Entries in books of account regularly kept in the course of business are admissible whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability. 18.Drawing from the above provisions, the statement the Appellant provided in evidence carried significant probative value and served as prima facie evidence of the transactions recorded therein. At that point in time, whereas the legal burden of proof remained on the Appellant, the evidentiary burden of proof shifted from the Appellant to the Respondents thereby calling upon the Respondents to challenge the position. That, however, did not happen. Therefore, without such rebuttal, and with utmost respect, the Hon. Deputy Registrar erred in principle by failing to place proper evidentiary weight on the Appellant’s financial records. To that end, that was an error in law. (b) The propriety of the claim of overpayment: 19.The Appellant asserted that an overpayment of Kshs. 22,841,619.90 occurred. To ascertain the credibility of the claim, it is necessary to trace the origin of the decretal sum. Having interrogated the judgment of Hon. Lady Justice Gacheche dated 17th March 2011, the Court adopted the initial arbitral award and issued an order of mandamus for the principal sum of Kshs. 35,000,000/-, with interest explicitly ordered to be compounded at court rates of 12% p.a. from 25th September 2002, till payment in full. For avoidance of doubt, the Court rendered itself thus;…In view of the fact that had the respondents deposited the sum of the award as ordered on 25/9/2002, Interest would have accrued on the sum from then onwards, there would be no reason to deny the companies that element of interest and I do order that the Respondents shall pay interest on the stated sum compounded at court interest rates of 12% p.a. from 25/9/2002, when they were ordered to deposit the sum of the award, till payment in full. 20.The affidavit deposed to by one Lydia Kwamboka on 28th October 2019 in support the Notice of Motion of a similar date has the annexure marked L.K. 5. It contains the Respondents’ own calculations. It shows that Respondents started their calculations on interest as from 1st January 2001 instead of 25th September 2002; a period of 21 months early thereby leading to their inflated, erroneous claim. 21.This Court must stay true to its role as a first appellate Court. In Ephantus Mwangi and Another -vs- Duncan Mwangi Wambugu (1982-88) 1 KAR 278, the Court of Appeal clarified the limits of interfering with a trial Judge’s findings as hereunder:…. A Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did. 22.Flowing from the above, and by applying the correct legal baseline, a principal of Kshs. 35,000,000/- with 12% interest running strictly from 25th September 2002, against the Appellant’s uncontroverted payment schedule totalling Kshs. 178,083,794.00, the mathematical outcome supports the Appellant’s case. The principal and lawful interest were fully extinguished, resulting in a surplus. 23.It also must be pointed out that because the Respondents elected not to participate in this appeal, the Appellant’s documentary evidence, specifically the verified Statement of Accounts and the bank statements, remained uncontroverted. Consequently, this Court finds and hold that the Appellant conclusively demonstrated an overpayment of Kshs. 22,841,619.90 to the Respondents. The Appellant is, hence, entitled to a refund of the sum of Kshs. 22,841,619.90 with interest. As such, this appeal is merited. Disposition: 24.As I come to the end of this judgment, I wish to apologize to the parties for the late delivery of this decision which was to be in February 2026. The delay was occasioned by my engagement at the Judicial Service Commission where I serve as a Commissioner given that the Commission has been running interviews since December 2025 to date. Once again, galore apologies. 25.Consequently, the following final orders hereby issue: -(a)The appeal is hereby allowed.(b)The Ruling and Order of the Learned Senior Deputy Registrar dated 7th April 2021, in JR Case No. 433 of 2009 is hereby set aside in its entirety and is substituted with a finding that the Appellant fully settled the Respondents’ claim as per the judgment by Hon. Lady Justice Gacheche dated 17th March 2011.(c)Given the substantiated overpayment, the Respondents are hereby ordered, jointly and severally, to refund the Appellant the overpaid sum of Kshs. 22,841,619.90, together with interest at Court rates from February 2021 until payment in full failure to which execution to issue.(d)The Appellant is awarded the costs of this appeal.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF MAY,2026.A.C. MRIMAJUDGEJudgment virtually delivered in the presence of:Mr. Wanjehia for Mr. Magare, Learned Counsel for the Appellant.No appearance for, Learned Counsel for the Respondents.Michael/Amina – Court Assistants.