SEASCAPES LIMITED v DEVELOPMENT FINANCE COMPANY OF KENYA LIMITED [2009] KECA 436 (KLR)
- Court
- Court of Appeal
- Case number
- 436
- Citation
- [2009] KECA 436 (KLR)
We allow the appeal and set aside the part of the judgment that stated that Seascapes had waived or was estopped from alleging that the legal obligation to repay the loan was in Kenya shillings and that the appellant was estopped from demanding a refund of any overpayment.
Facts
Seascapes Limited approached Development Finance Company of Kenya Limited for a loan of Ksh.6,000,000 to develop a tourist or beach hotel. The loan was secured by a legal charge over land owned by Adsite Limited. The loan was to be repaid in Kenya shillings.
Issues
- Whether the trial court should have renege on its finding that the loan was in Kenya shillings and repayable in Kenya shillings.
- Whether the appellant was estopped from alleging that the legal obligation to repay the loan was in Kenya shillings and demanding a refund of any overpayment.
Reasoning
The trial court's finding that the loan was in Kenya shillings and repayable in Kenya shillings was not renege on, and the doctrines of waiver and estoppel could not be applied to defeat this finding.
Outcome
Appeal allowed
Orders
- Declare that both the loan granted to the appellant and interest and charges were granted in Kenya shillings and the obligation to repay was in Kenya shillings.
- Overpayment in respect of the entire loan amounting to Kshs.4,872,313/40 at the date the suit was filed be paid to the appellant together with interest at court rates as from the date the suit was filed to the date of full payment of the superior court's judgment to the date of full payment.
- Award all costs in the superior court to the appellant.
- Costs of this appeal to be paid by the respondent.
Remedies
- Overpayment in respect of the entire loan amounting to Kshs.4,872,313/40 at the date the suit was filed be paid to the appellant together with interest at court rates as from the date the suit was filed to the date of full payment of the superior court's judgment to the date of full payment.
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