https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6598

Sun Africa Hotels Limited v Brandables (Kenya) Limited (Civil Appeal E344 of 2021) [2026] KEHC 6598 (KLR) (Civ) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6598 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E344 of 2021 AC Mrima, J May 15, 2026 Between Sun Africa Hotels Limited Appellant and Brandables (Kenya) Limited Respondent (Being an appeal from the Judgment and Decree of Hon. Gicheha, Chief Magistrate, in Nairobi Chief Magistrates Court Commercial Case No. 448 of 2016 delivered on 20th December 2019) Judgment Background: 1.The dispute, subject of this appeal, arose from a claimed business relation between Sun Africa Hotels Limited, the Appellant herein, and Brandables (Kenya) Limited, the Respondent herein. The Respondent, through the Plaint dated 29th January 2016 instituted Nairobi [Milimani] Chief Magistrates Court Commercial Case No. 448 of 2016 [hereinafter referred to as ‘the suit’] claimed an outstanding debt of Kshs 4,847,216.43 plus interest at the rate of 2.5% per month for various assorted edible and non-edible goods allegedly supplied to the Appellant and its associated establishments between 2008 and 2013. 2.The Appellant filed a Defence on 7th March 2016, denying liability and challenging the interest rate as extortionate and illegal. 3.The suit was heard in which the Respondent called one witness, Somesh Maini, who testified as PW1 while the Appellant did not call any witness. In its judgment of 20th December 2019, the trial Court awarded the Respondent the full amount claimed, interest at 2.5% per month, and costs. It was that decision that prompted the instant appeal which was disposed of by way of written submissions. The Appeal: 4.The Appellant, through a Memorandum of Appeal dated 6th April 2021, asserted the following grounds of appeal: -1.The Learned Chief Magistrate seriously erred and grossly misdirected herself in Law and facts in granting Judgment to the Respondent (Plaintiff in the Lower Court) and against the Appellant (Defendant in the Lower Court) by failing to properly, fairly and justly evaluate, weigh an appraise all the relevant, available and correct evidence adduced before her at the trial of the suit; thereby occasioning injustice to the Appellant.2.The Learned Chief Magistrate grossly erred and seriously, misdirected herself both in facts and in law, in particular by failing to appreciate, consider and/or to make specific or adverse findings, on the evidence of the only witness of the Plaintiff in the Lower Court adduced during cross-examination and the admissions to the effect that the Invoices on the following pages of the Plaintiff’s (Respondent’s) Bundles Nos. 008 dated 13/04/2011; 009; 0021; dated 15/04/2011; 022; 023 and many other similar invoices were addressed by the Respondent to nobody and were receive by nobody and accordingly the Appellant could not be credited with receipt of the items outlined therein.3.The Learned Chief Magistrate in the Lower Court further erred and/or grossly misdirected herself both in facts and in Law in that she failed to consider, appreciate and/or to make adverse or specific findings on the admissions in the evidence of the Plaintiff’s witness during cross examination in the Lower Court to the effect that Invoices on page nos. 001 dated 26/08/2010; 002 dated 13/01/2011; 010 dated 13/04/2011; 011 dated 13/04/2011; 013 dated 27/04/2011; 016 dated 25/08/2010; 017 dated 23/04/2010; 018 dated 23/12/2010; 021 dated 15/04/2011; 022 dated 15/04/2011. 031 dated 18/05/2011; 034 dated 31/05/2011; 035 dated 31/05/2011; 036 dated (repeat) 31-May-2011; 043 dated 18/05/2011; 046 dated 31/05/2011; 047 dated 31/05/2011; 048 dated 31-May-2011 (repeat) and several other similar invoices were repeats, duplicates and fraudulent invoices addressed by the Respondent to nobody and purportedly received by unknown persons and that it was not only illegal but also a travesty of Justice to require the Appellant to pay for the same.4.Equally the Learned Chief Magistrate in the Lower Court grossly erred and seriously misdirected herself in facts and law in that she also failed and/or neglected to appreciate, consider and to make adverse findings against the Respondents on the clear and incontrovertible admissions by the Appellant’s witness during Cross-Examination in the Lower Court to the effect that the Invoices Exhibited by the Respondent (Plaintiff in the Lower Court) being identified by page Nos: 003 dated 17/12/2010 (Kenya Hotels); No. 012 dated 20/04/2011 (Wildlife Lodges Limited); 015 dated 10-May-2011; Not Identified between 015 and 016 purported as No. 76287 dated 08/12/2011; No. 019 dated 08/03/2011; No. 020 dated 21/01/2011; No. 024 dated 05/04/2011; 025-to-028; 030 dated 17-May-2011; 032 and 033; Nos. 037 to 040; No. 042 dated 17-May-2011; 044 and 045; 049 dated 14-Jun-2011 and various other Invoices were addressed by the Respondent (Plaintiff in the Lower Court) to Companies And Entities or Businesses that are total strangers to the suit in the Lower Court, namely; Wildlife Lodges Ltd; Or Kenya Hotels and were purportedly received by unknown person and accordingly the Appellant could not be required to pay for the said strange or unfamiliar invoices from the Plaintiff to the said strangers to the suit in the Lower Court .5.The Learned Chief Magistrate further erred in Law and seriously misdirected herself both in facts and in failing and neglected to consider, appreciate and to find from the Admissions by the said witness for the Respondent (Plaintiff in the Lower Court) during Cross-Examination; that the said various Defective, repetitive and un-connected invoices were spread throughout the body of the Respondent’s Bundle of Documents and were identified to exist for instance on pages 184 and 185; Nos. 248, 249 and 250; 253 and 254; 327 and 329; Nos. 351- to 353; 360-to-362; 385-to-395; Nos. 407; 408; 418; 446, 447 and many others and hence could not be dismissed or cast aside as a few or Insignificant number of defective and unworthy/invoices that ought to have been dismissed or struck out by the Court and the Respondent (Plaintiff in the Lower Court) ordered to exclude the claims therein from the Amount of the total prayer in the Plaint .6.The Learned Chief Magistrate seriously erred and further grossly misdirected herself both in Law and in fact by failing to make a correct, legal and justiciable finding that the Appellants (Plaintiff’s) case in the Lower Court could not be sustained and Judgment could not be entered in favour of the Plaintiff on the grounds that the Plaint in the Lower Court was defective for failure to include Wildlife Lodges Limited And Kenya Hotels as parties to the suit the said entities being some of the companies to which the alleged goods were supplied.7.The Learned Chief Magistrate also erred in Law and misdirected herself both in facts and in Law in ignoring the written submissions of the Defendant and the Legal Authority being Kisumu - Court of Appeal No. 105 of 2009 - Mohammed Adan Molly -vs- Linksoft (K) Limited and another which was attached to the said Submissions and this particular error and misdirection occasioned a serious miscarriage of Justice.8.The Learned trial Magistrate further misdirected herself and erred both in Law and in facts by failing to find that there was no agreement made between the Respondent and the Appellant as alleged in paragraph 3 of the Plaint and that if any such Agreement existed (which was not proved) then the same (non-existent as it was) was incapable of being produced on grounds that it was inadmissible in evidence in Kenyan Civil Courts pursuant to the provisions of the Evidence Act (Cap 8) and the Stamp Duty Act (Cap 480) Laws of Kenya.9.The Learned Chief Magistrate in particular, erred and grossly misdirected herself both in Law and in facts by failing to find that the interest rate of 2.5% per month which translates into 30% per annum; in the absence of any written agreement is unjust for being extortionate, excessive and exorbitant and hence illegal for being contrary to the provisions of the Banking Act; and also for being usurious and unconscionable as pleaded in paragraph 7 of the DEFENCE filed by the Appellant in the Lower Court, and hence should have ordered that any amount proved to be due (if any) should be subject to court.10.The Judgment by the Learned Chief Magistrate went against the evidence adduced in the Lower Court and therefore amounts to a travesty of Justice to the detriment of the Appellant. The Submissions: 5.In its written submissions dated 6th May 2024, the Appellant argued that the trial Court failed to evaluate the evidence of the Respondent’s sole witness, who admitted during cross-examination that several invoices were blank, repetitive, or addressed to entities that were not parties to the suit, such as Wildlife Lodges Limited and Kenya Hotels. The Appellant contended that the suit was fatally defective due to the non-joinder of these entities, as they were separate legal entities and the goods were purportedly supplied to them, not the Appellant. Reliance was placed on Mohammed Adan Molly -vs- Linksoft (K) Limited and another [Kisumu Court of Appeal No. 105 of 2009], where the Court emphasized the distinct legal personality of companies. 6.Further to the foregoing, the Appellant submitted that the interest rate of 2.5% per month (30% per annum) was illegal, unconscionable, and violated the Banking Act, especially in the absence of a written agreement. It was argued that the trial Court erred in failing to find that no valid agreement existed between the parties. 7.The Appellant urged this Court to allow the appeal and in turn dismiss the suit with costs. The Respondent’s case: 8.The Respondent opposed the appeal through written submissions dated 22nd May 2024. At the outset, it was its case that the failure to include Wildlife Lodges Limited and Kenya Hotels was not fatal to the case under Order 1 Rule 9 of the Civil Procedure Rules 2010. To that end, it referred to the decision in Zephir Holdings Limited -vs- Mimosa Plantations Limited, Jeremiah Matagaro & Ezekiel Misango Mutisya [2014] eKLR, where the Court held that a suit cannot be defeated for misjoinder or non-joinder. 9.The Respondent further differentiated between necessary and non-necessary parties by drawing support from the case of County Government of Kiambu & Others v Senate & Others [2017] eKLR. It argued that the Appellant was the necessary party from whom relief was claimed, as it had received and stamped the invoices and made payments via cheques. 10.On interest, the Respondent maintained that the 2.5% monthly interest rate was contractual, as it was expressly indicated under conditions on all invoices issued to and accepted by the Appellant. It was its case that by accepting the goods, the Appellant agreed to the terms. The Respondent relied on the case of Jane Wanjiku Wambu -vs- Anthony Kigamba Hato & 3 Others [2018] eKLR, where it was held that interest prior to a suit is a matter of substantive law and claimable where there is a contractual stipulation or where it can be implied from the course of dealing. 11.Regarding the Appellant’s claims of fraudulent or duplicate invoices, the Respondent invoked the principle that he who alleges fraud must prove. It referred the Court to the case of Jephther O. Opande -vs Mary Atemo Gathiriga [2019] eKLR, to emphasize that the standard of proof for fraud is higher than a balance of probabilities and must be specifically pleaded and strictly proved. The Respondent noted that its statement of account and bundle of invoices (totalling Kshs 4,847,216.43) were produced at trial and went unchallenged by the Appellant, who called no witnesses to disprove receipt. 12.Finally, the Respondent argued against a retrial, stating that a first appeal is itself a retrial by way of re-evaluation of evidence, citing Jackson Kaio Kivuva -vs- Penina Wanjiru Muchene [2019] eKLR. It submitted that the original trial was not defective and the Appellant had ample time to present its case but failed to do so. 13.In the end, the Respondent prayed that the appeal be dismissed with costs. Analysis: 14.Having carefully perused the Record of Appeal, the parties’ rival submissions, and the decisions referred to therein, the following issues emerge for determination: -i.Whether the non-joinder of Wildlife Lodges Limited and Kenya Hotels was fatal to the suit.ii.Depending on [i] above, whether the suit was proved.iii.Whether the award of interest at 2.5% per month was lawful and justified. 15.This being a first appeal, this Court’s duty is to re-evaluate the evidence tendered before the trial Court and arrive at its own independent conclusion. In the longstanding case of Selle & Another -vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123) the Court observed as follows: -…. 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 demeanour of a witness is inconsistent with the evidence in the case generally 16.In Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the Court set out the role of the first appellate Court in the following terms: -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. 17.Recently, the Court of Appeal in Lumunge -vs- China City Construction Limited China City Construction Limited & 2 others (Civil Appeal E007 of 2023) [2026] KECA 330 (KLR) referred to its earlier decision on its role as an appellate Court and observed as follows: -… This Court in Geoffrey Muthinja & another -vs- Samuel Muguna Henry & 1756 others (2015) KECA304 (KLR) elaborated on this mandate as follows:…. As this is a first appeal, our mandate is a broad one and involves…..a fresh and exhaustive examination, re-evaluation and re-analysis of the entire record with a view to drawing our own inferences and making our own independent conclusion, on all the material before us. We pay a measure of deference to the findings of the first instance Court but are free to depart from them in appropriate cases, where they are founded on no evidence, constitute a misapprehension of the law or are plainly wrong. The latitude to depart is wider where, as in this case, there was no trial involving the taking of viva voce evidence in which case the first instance Judge would have had the added advantage of hearing and seeing the witnesses and so would have been better placed to judge their credibility and make a more informed judgment on the veracity of the opposing cases. 18.On the basis of the above guidance, this Court will now address the above identified issues sequentially. Whether the non-joinder of Wildlife Lodges Limited and Kenya Hotels was fatal to the suit: 19.The Appellant argued that the trial was flawed because the Respondent failed to enjoin Wildlife Lodges Limited and Kenya Hotels, in the suit given that many invoices were addressed to the two entities. On its part, the Respondent referred to Order 1 Rule 9, of the Civil Procedure Rules to assert that non-joinder was not fatal to the suit. 20.Order 1 Rule 9 of the Civil Procedure Rules provides thus: -Misjoinder and non-joinderNo suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. 21.Speaking to the issue of non-joinder and misjoinder of parties, the Court in Petition No. 371 of 2016, Centre for Rights Education and Awareness & 2 others -vs- Speaker the National Assembly & 6 others [2017] eKLR, emphasized that a party to a dispute has a right to have its dispute resolved despite a misjoinder and referred to the English case in Dyson -vs- Attorney General (1911) KB 418 where the following was stated: -........ To my mind, it is evident that our judicial system would never permit a plaintiff to be “driven from the judgment seat” in this way without any court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad. 22.The issue of non-joinder hinges on a party’s right to a fair hearing as provided for in Article 50[1] of the Constitution. That right is one of those that cannot be limited in any way, and as ring-fenced in Article 25 of the Constitution. It, therefore, means that a party who approaches a Court cannot be turned away on account of non-joinder or misjoinder of parties, and that is what Order 1 Rule 9 of the Civil Procedure Rules clearly stipulates. 23.To understand this aspect further, it ought to be known that allowing a suit to be heard regardless of the parties suing or being sued does not mean that the suit must succeed. All it means is that the parties have been accorded an opportunity to be heard by presenting their cases subject to the required standards of proof in law. Therefore, whereas a suit may be allowed to proceed for hearing notwithstanding the non-joinder or misjoinder of parties, the averments in the suit must be proved for it to succeed. 24.Reverting to the matter at hand, the record has numerous invoices issued to Wildlife Lodges Limited and Kenya Hotels Baringo and Kenya Hotels Naivasha. The entities were truly not parties in the suit. However, in the Plaint, the Respondent described the Appellant as a limited liability company carrying on business of hotel and catering services within the Republic of Kenya. In the witness statement of Somesh Maini, a Director of the Respondent, he stated that Wildlife Lodges Limited was the Respondent’s predecessor. This is, hence, a factual issue calling for proof at trial and it cannot be a basis of striking out a suit preliminarily. 25.Flowing from the above, the Respondent’s cause of action was, hence, intact as against the Appellant regardless of the non-joinder of some parties. 26.As the first issue is answered in the negative, this Court will address the rest of the issues. Whether the suit was proved: 27.The resolution of this issue, first imposed upon the Respondent, the obligation to demonstrate that there existed a contractual relationship. Whereas the Respondent pleaded that it was an oral contract, the Appellant denied there being any contract. The Court of Appeal in Total Kenya Limited -vs- D Pasacon General Construction & Electrical Services (Civil Appeal 119 of 2019) [2022] KECA 593 (KLR) had the following to say about unwritten contracts;…. The circumstances in the instant appeal suggests that Eng. Kipkorir, who was in charge of supervision of construction at the Jomo Kenyatta Total Service Station, requested the respondent to do additional works on the appellant’s site. The said additional works were done for a protracted period of time (from 14th July 2010 to 26th September 2010) with no objections from the appellant or its agent/representative. Evidence was adduced during trial that a job completion form and a delivery note both dated 26th September, 2010 were duly received by the appellant and executed by both parties herein. At no point did the appellant raise any objections to the works done by the respondent. It is therefore conclusive that Eng. Kipkorir issued verbal instructions to the respondent to do the additional works which were done under his supervision until completion. The key elements that apply for a valid contract to exist have been established in this case and therefore we agree with the finding of the High Court that indeed, there existed an oral contract between the parties herein for the additional works. 28.Having gone through the record, and on the basis of Section 119 of the Evidence Act [Presumption of likely facts], and by giving due regard to the parties’ conduct, there is ample evidence, in the nature of invoices generated by the Respondent addressed to and received by the Appellant that there was in place some business transactions between the parties. That relationship is evidence of an oral contract. 29.Based on the existence of a contract, the next consideration is whether the Respondent proved the claimed debt. An appropriate starting point is the burden of proof the Respondent bore. 30.Sections 107, 108, 109 and 112 of the Evidence Act variously provides for the burden of proof. There are two limbs of the burden of proof being the legal burden of proof and the evidential burden of proof. Whereas the legal burden of proof is always static on the claimant, the evidential burden of proof initially rests on the claimant, but may shift to the other party depending on the weight of evidence adduced by the claimant. A detailed discussion on this aspect was undertaken by the Supreme Court in Raila Amolo Odinga & another v IEBC & 2 others {2017} eKLR and the Court of Appeal in Mbuthia Macharia -vs- Annah Mutua Ndwiga & another [2017] eKLR, among other decisions. 31.We now look at whether the Respondent discharged its initial evidential burden of proof. In attempting to do so, the Respondent produced a bundle of 588 invoices and a statement of account showing an outstanding balance of Kshs 4,847,216.43. In his witness statement, Somesh Maini, stated that the Respondent supplied the Appellant and its predecessor (Wildlife Lodges Limited) various items between the year 2003 and 2013. It was his case that the Appellant acknowledged receipt by stamping and signing the invoices. Similarly, when the witness took to the stand, he clarified that the invoices served as delivery notes and were acknowledged by stamps and signatures. During cross-examination, PW1 admitted some invoices were for Wildlife Lodges and some for Kenya Hotels and that some were not stamped and signed. He further conceded that they had not sued the Kenya Hotels. 32.Before proceeding further, there is need to ascertain the nexus between the Appellant and the entities which were not sued, that is Wildlife Lodges Limited and Kenya Hotels Baringo and Kenya Hotels Naivasha. The Respondent alleged that the said entities were the Appellant’s predecessor. The Appellant denied the allegation. The Respondent then bore a legal obligation under Section 107 of the Evidence Act to adduce evidence to substantiate the affiliation. The Respondent failed to discharge the burden. Further, PW1 admitted that the Respondent had not received any payments from the disputed entities. To this Court, therefore, the Respondent failed to prove that Wildlife Lodges Limited, Kenya Hotels Baringo and Kenya Hotels Naivasha were in any way legally affiliated to the Appellant. As such, there is merit in the Appellant’s ground of appeal that it could not be held responsible to pay for strange or unfamiliar invoices. The Respondent’s remedy seems to lie in separately pursuing the said entities. 33.This Court, therefore, finds and hold that any invoices issued by the Respondent to the Appellant based on any alleged supply or delivery of goods to Wildlife Lodges Limited, Kenya Hotels Baringo and Kenya Hotels Naivasha could not be sustained as part of the suit. Such claim hereby fails. From the record, there is a statement of outstanding invoices prepared by the Respondent to Wildlife Lodges Limited. The statement runs from pages 339 to 341 of Volume 2 of the Record of Appeal and the sum of the said unsettled invoices is Kshs. 3,217,935.75. This amount is, therefore, not recoverable from the Appellant. For clarity, the record has no invoices issued to Kenya Hotels. 34.The focus now turns to the remaining invoices. Suffice to say that all the invoices in the suit are contained in Volume 2 of the Record of Appeal as from pages 336. At trial, PW1 admitted that there were some invoices that had not been signed and bore no receipt stamp of the Appellant and that he did not know the person who received the goods. These are the invoices on pages 348, 351, 352, 353, 356, 357, 358, 366, 369, 370, 371, 372, 378, 381, 382, 383, 386, 407, 419, 420, 421, 427, 445, 455, 462, 466, 467, 468, 469, 470, 472, 474, 515, 516, 517, 518, 578, 579, 580, 583, 584, 585, 586, 664, 679, 4702, 703, 704, 705, 706, 707, 708, 709, 713, 714, 715, 718, 722, 726, 730, 731, 733, 734, 772 and 773. The sum of these invoices is Kshs. 1,413,965.75. Likewise, such invoices cannot form part of the debt. 35.There was also the contention that some documents were duplicates. Going through the record, the invoices on pages 387, 417, 422 and 572 are indeed duplicates. There are two different invoices which are both marked as pages 576, but bear different invoice numbers and amounts. These are not duplicates. The duplicate invoices amount to Kshs. 293,455.36 which figure has to be expunged from being part of the debt. 36.Having discounted the above invoices, this Court has confirmed the presence of 275 invoices in the record which were, properly so, issued by the Respondent and duly received, stamped and signed by the Appellant. These are the invoices which in essence prove the Appellant’s indebtedness to the Respondent. For certainty, the invoices appear on the following pages of the record: -454, 456, 457, 461, 463, 465, 467, 471, 473, 475, 478, 479, 481, 483, 487, 489, 492, 493, 494, 496 and 498;500, 501, 503, 505, 508, 509, 512, 513, 519, 520, 522, 524, 526, 528, 530, 531, 532, 533, 534, 535, 536, 538, 539, 541, 542, 544, 545, 546, 547, 548, 549, 550, 551, 552, 554, 555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 565, 566, 567, 568, 569, 569, 570, 571, 572, 574, 575, 576, 576, 577, 581, 582, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 597, 598 and 599;600, 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 612, 613, 614, 615, 616, 617, 618, 619, 620, 621, 622, 623, 624, 625, 626, 627, 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 639, 640, 641, 643, 644, 645, 646, 647, 648, 649, 650, 651, 652, 653, 654, 655, 656, 657, 658, 659, 660, 661, 662, 663, 664, 665, 666, 667, 668, 669, 672, 674, 676, 677, 678, 682, 683, 684, 685, 686, 687, 688, 689, 691, 692, 693, 694, 695, 696, 697, 698 and 699;700, 701, 709, 710, 711, 712, 723, 724, 725, 727, 728, 729, 732, 735, 736, 737, 738, 739, 740, 743, 745, 749, 751, 753, 755, 757, 759, 761, 763, 765, 768, 770, 772, 773, 774, 775, 777, 780, 782, 783, 785, 786, 788, 791, 795 and 799;800, 802, 804, 806,807, 808, 810, 812, 815, 816, 819, 820, 822, 824, 826, 828, 830, 832, 834, 836, 837, 839, 841, 843, 845, 846, 848, 853, 852, 854, 856, 864, 877, 880, 891, 893 and 899;901, 903, 905, 907, 909 and 910. 37.As stated, the above invoices constituted the Respondent’s outstanding debt. The sum total of the said invoices is Kshs. 6, 741, 997.70. 38.Therefore, even without discounting the invoices which were issued to Wildlife Lodges Limited and the Kenya Hotels; the invoices that had not been signed and bore no receipt stamps of the Appellant and the invoices that were duplicates, still the invoices that were properly issued to the Appellant exceeded the amount pleaded in the Plaint. Since parties are bound by their pleadings, the Respondent’s claim can only be limited to the figure of Kshs. 4, 847,216.43 as pleaded. To that end, the trial Court cannot be faulted in allowing the claimed as prayed. Having so found, this Court will now address the issue of interest. Whether the award of interest at 2.5% per month was lawful and justified: 39.The Appellant challenged the 2.5% monthly interest as illegal under the Banking Act. The Respondent argued that the rate of interest was contractually agreed and explicitly stated in Condition 5 of all the invoices issued. 40.It is a fact that the invoices expressly called for payment on demand with a window for any queries within 7 days otherwise any non-payment attracted interest at the rate of 2.5%. However, the Respondent invoked the in duplum rule in Section 44A of the Banking Act in turn. The Court will now look at the applicability or otherwise of the said rule in this matter. 41.The statutory foundation of the in duplum rule is Section 44A of the Banking Act which provides as follows: -44A.Limit on interest recovered on defaulted loans(1)An institution shall be limited in what it may recover from a debtor with respect to a non-performing loan to the maximum amount under subsection (2).(2)The maximum amount referred to in subsection (1) is the sum of the following-(a)the principal owing when the loan becomes non-performing;(b)interest, in accordance with the contract between the debtor and the institution, not exceeding the principal owing when the loan becomes nonperforming; and(c)expenses incurred in the recovery of any amounts owed by the debtor.” 42.The in duplum rule traces its origin from the Roman-Dutch law, which holds that interest on a non-performing loan cannot exceed the principal sum outstanding when the loan becomes non-performing. This rule is hinged on the following five key considerations. The first one is to stop interest from accruing on a non-performing loan once the total interest equals the outstanding principal thereby protecting borrowers from exploitative, runaway interest accumulation that makes debt repayment impossible, while ensuring fairness in the credit market and promoting responsible lending practices. Secondly, the rule seeks to prevent exploitation of the borrowers by preventing lenders from charging exorbitant interest that grows to "astronomical figures," which can ruin debtors financially. 43.Thirdly, the rule ensures fair repayment by protecting debtors from having to pay interest that exceeds the amount actually borrowed, particularly when a loan becomes non-performing. Fourthly, the rule also aims at encouraging diligence on the part of the lenders by motivating banks to manage debt recovery efficiently and promptly, rather than allowing interest to accumulate indefinitely. Lastly, the rule is anchored in public policy considerations by protecting consumer rights and preventing predatory lending that makes it impossible for borrowers to redeem their security or property. 44.On the basis of the foregoing, this Court is of the very considered position that the in duplum rule ought to apply not only to loans advanced by institutions under the Banking Act, but also to all loans advanced by other financial institutions and even the loans advanced between individuals. Why does this Court say so? This Court so posits because drawing from the rationale behind the in duplum rule as discussed above, it goes without say that the rule aims at spotting an injustice and stopping it on its course. To this Court, an injustice is an injustice regardless of its form and manifestation. It is all about fairness and social justice. Therefore, the very reasons behind the in duplum rule must apply mutatis mutandis to any form of contractual engagement that yields to the very injustices which the rule seeks to stop. To that end, it is this Court’s finding and holding that, the imposition of the in duplum rule into to all loans advanced by other financial institutions not within the Banking Act and even the loans advanced between individuals is not a misdirection in law, but rather, an intentional infusion and application of the constitutional imperatives of fairness, social justice, human dignity, equity, non-discrimination, integrity and good governance as espoused in Article 10 of the Constitution. 45.Further, this Court is alive to the fact that the people of Kenya through Parliament in amending Section 44A of the Banking Act to cap the interest chargeable on loans, were responding to a serious social need. By then, that problem was mainly manifested in loans advanced by banks and financial institutions, but over time, the pandemic has spread out to other entities and even individuals. Many a times, people suffer under the ruthless patronage of money lenders or even shylocks over loans received with unending interest demands. That was the very injustice that resulted to Section 44A of the Banking Act and, therefore, justifying the adoption of the in duplum rule in all other loans advanced between private individuals. It is instructive to note that the term ‘shylocks’ relates to a relentless, hard-hearted moneylender who charges extortionate interest rates, essentially a loan shark, in the Shakespeare’s The Merchant of Venice. 46.In this case, however, the subject of the suit is not a loan advancement by the Respondent to the Appellant, but rather a contract on supply of goods. To that end, the in duplum rule ought not to apply. Having so said, it does not mean that a party to a contract which considers the contract to be unconscionable is without a remedy. Courts have clearly rendered on such contracts and a look at one of them will suffice. In Langat -vs- Co-operative Bank of Kenya Ltd (Civil Appeal 48 of 2015) [2017] KECA 152 (KLR), the Court of Appeal, in reference to its earlier decisions, wholesomely discussed unconscionable contracts as under: -44.This Court has never shied away from interfering with unconscionable contracts. In Kenya Commercial Finance Company Ltd -vs- Ng’eny & Another [2002] 1KLRit stated:… The court will not interfere where parties have contracted on arms-length basis. However, by its equitable jurisdiction, this court will set aside any bargain which is harsh, unconscionable and oppressive or where having agreed to certain terms and conditions, thereafter imposes additional terms upon the other party. Equity can intervene to relieve that party of such conditions.45.Halsbury’s Laws of England Volume 22 (2012) 5th Edition at Paragraph 298 states of unconscionability:Even in the absence of duress of persons or undue influence, there has long been jurisdiction to interfere with harsh and unconscionable transactions in several different areas of the law: for instance, in respect of salvage agreements; or against contractual penalties, forfeiture of mortgages, extortion the loans or expectant heirs. ... The jurisdiction of the courts to set aside is based on unconscientious conduct by the stronger party; relief will not be granted solely on the grounds that the transaction is unfair or improvident.46.Finally on unconscionability, this Court in the Margaret Njeri Muiruri case (supra) stated:… Courts have never been shy to interfere with or refuse to enforce contracts which are unconscionable, unfair or oppressive due to a procedural abuse during formation of the contract, or due to contract terms that are unreasonably favourable to one party and would preclude meaningful choice for the other party. An unconscionable contract is one that is extremely unfair. Substantive unconscionability is that which results from actual contract terms that are unduly harsh, commercially unreasonable, and grossly unfair given the existing circumstances of the case (See Black’s Law Dictionary, 9th Edition, Gardner, Ed.). 47.In its defence in the suit, the Appellant attacked the interest rate as extortionate and illegal. Surprisingly, the Appellant did not lead any evidence to prove the manner in which the interests were ‘extortionist and illegal’. Having so failed, the safeguard discussed in Langat -vs- Co-operative Bank of Kenya Ltdcase [supra] cannot come to its aid. The contention, therefore, fails. Disposition: 48.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 on 26th 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. 49.Deriving from the discussions in the analysis part of this judgment, this Court finds that the appeal wholly fails and that the claim was proved as prayed in the suit. 50.Consequently, the following final orders hereby issue: -(a)The appeal is wholly dismissed.(b)The Appellant shall bear the costs of the appeal.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 15TH DAY OF MAY,2026.A.C. MRIMAJUDGEJudgment virtually delivered in the presence of:Mr. Khaselle, Learned Counsel for the Respondent.No appearance for the Appellant.Amina – Court Assistant.