1.By this appeal, the appellant Basil Criticos, who was the plaintiff in Milimani Commercial Court Civil Suit No. 757 of 2009, challenges the judgment and orders of Kariuki, J. by which his claims as articulated in the suit were dismissed.
2.The appellant had sought a number of reliefs in the suit including;(a)"A declaration that the plaintiff is discharged and released from all liability under the legal charge dated 29th January, 1991 and guarantee dated 22nd January, 1991;(b)A declaration that the defendants did not have any legal right to exercise the statutory power of sale in respect of the L.R No. 5865/2 and that the agreement for sale and transfer dated 5th September 2007 were executed in contempt of the injunctive orders issued in Milimani HCCC No. 270 of 2007 Amos Mutuki Mutungi & Anor. v Basil Criticos, Agro Development Company Ltd, National Bank of Kenya Limited and the Registrar of Titles and Milimani HCCC No. 108 of 2006 Agro Development Company Ltd & Basil Criticos v National Bank of Kenya Limited;(c)A declaration that the sale of L.R No. 5865/2 for the sum of Ksh. 55,000,000 to the 2nd defendant was at a gross under value;(d)A mandatory injunction compelling the defendants to pay to the plaintiff the sum of Ksh. 55,000,000 or in the alternative pay the sum of Ksh. 35,000,000 being the surplus realised from the sale of L.R No. 5865/2 and upon payment credit be given for this amount in the final computation of damages in the event that the amount or any part thereof is paid before the final assessment of damages;(e)Damages for Ksh. 3,028, 890,000 or such sum as may be found lawfully due for the unauthorised, improper and irregular power of sale to be assessed at the market value of the property L.R No. 5865/2 together with interest at court rates thereon from the date when the property was wrongfully sold by private treaty on 5th September 2007 until payment in full.”
3.A brief background to the suit is that in the year 1991, a limited liability company called Agro Development Company (the borrower) in which the appellant was a director and shareholder, borrowed the sum of Ksh. 20,000,000 from Kenya National Capital Corporation Limited (KENYAC) with interest at the rate of 19% per annum, and with discretion to the bank to vary the rate of interest. The appellant in his capacity as guarantor executed a legal charge dated 29th January, 1991 in favour of KENYAC over a property owned by him and Her Excellency Mama Ngina Kenyatta as tenants in common. Liability however lay exclusively with the appellant. The property comprised a massive 15,994.5 acres or thereabouts.
4.According to the legal charge, the chargor would pay KENYAC the mortgage debt by 54 consecutive instalments, with the first instalment being paid from the date of drawdown, provided that a late payment charge at the rate of 1% would be levied from the date of default. The appellant also executed a guarantee dated 22nd January, 1991 in favour of KENYAC, in the sum of Ksh. 20 million together with interest and other charges, in consideration of the bank granting credit to the borrower.
5.The borrower defaulted in making payment and the bank issued demand notices; one dated 24th April, 1997 to the borrower; two dated 16th April, 1997 and 24th April, 1997 respectively, to the appellant; and another dated 24th April, 1997 to a third party. The demand notices were in respect of a debt of Ksh. 66,477,929, together with interest, which continued to accrue at the rate of 35% per month.
6.The appellant complained that the statutory demand notices were never issued to him but instead they were issued to the borrower who was not the owner of the charged property. Further, the respondents sold the charged property, L.R No. 5865/2, illegally in contravention of injunctive court orders. The appellant contended that he had made several attempts to redeem the charged property but the same was rejected.
7.The respondents denied the appellant’s claims, arguing that since February 1996 when the loan was supposed to have been repaid in full, they had been faced with multiple injunction applications by the appellant and the borrower, which in effect considerably delayed recovery of the loan and escalated the debt on application of interest. They asserted that upon the sale of the security in 2007, they remained with a large unsettled balance from the borrower in the sum of Ksh. 106,636,945 as at February 2009. Through Milimani HCCC No. 132 of 2009, they sued the principal debtor for the outstanding sum, and the appellant for the sum guaranteed under the independent deed of guarantee.
8.The judgment of the High Court aggrieved the appellant and, after filing a notice of appeal, he followed it up with a memorandum of appeal containing a prolix 25 grounds, which he condensed in his submissions to 7 grounds. The appellant complained that the learned Judge erred by failing to;
- Evaluate and consider the evidence on record by Justices Kimondo and Gikonyo, and the plaintiff’s submissions.
- Find that the plaintiff’s liability as guarantor was limited to Ksh. 20 Million in HCCC No. 132 of 2009, National Bank of Kenya Ltd v Agro Development Co. Ltd & Others, and his liability was discharged.
- Find that the bank failed to account for the sale proceeds and refund the surplus to the plaintiff.
- Find that the bank was in contempt because injunctive orders were in force at the time the charged property was sold by private treaty.
- Find that the bank breached the duty of care, acted in bad faith and was liable to compensate the plaintiff for all losses suffered.
- Evaluate expert testimony and the consequence of lack of rebuttal of evidence.
- Award costs in favour of the defendants in HCCC 132 of 2009 National Bank of Kenya Ltd v Agro Development Company Ltd & 2 others after striking out the suit for being incompetent.
9.In consequence, the appellant prayed that; the learned Judge’s judgment and order be set aside, this appeal be allowed with costs, and he be awarded costs in Milimani HCCC No. 132 of 2009.
10.Conversely, the respondents filed a notice of cross-appeal dated 18th April, 2017 seeking a variation of the High Court decision on grounds that the learned Judge erred by;
- Holding that the respondent had no locus standi to institute a counterclaim in Milimani HCCC No. 132 of 2009 in recovery of the principal debt and the guaranteed sum.
- Holding that the consolidated suit, Milimani HCCC No. 1420 of 1997 was abandoned and spent.
- Wrongly exercising his discretion not to grant costs of the dismissed suit to the respondents.
11.In the end, the respondents prayed that; dismissal of the counterclaim in Milimani HCCC No. 132 of 2009 be set aside, judgment be entered for it as prayed in that suit; or, in the alternative, as prayed in Milimani HCCC No. 1420 of 1997; and costs of the suit in the High Court and this Court together with interest at court rates.
12.The parties filed written submissions which were highlighted by counsel at the hearing of the appeal.
13.For the appellant, learned counsel Mr. Gachuhi submitted that the dispute was about severe economic loss suffered by the appellant who had guaranteed the borrower to the tune of Ksh. 20 million only. Counsel faulted the learned Judge for failing to consider and evaluate the evidence on record, specifically, the evidence of Yakub Hussein to the effect that he joined the appellant in a joint venture and planted new sisal over 1,200 acres consisting of 4,560,000 plants whose value, at USD 1 per plant, came to about USD 4,560,000. The sisal was to mature in 2009. He also blamed the Judge for failing to consider that the bank frustrated the appellant by declining to accept his redemption offer of Ksh. 63 million even when evidence of availability of funds was given.
14.Counsel criticised the trial court for failing to find that the appellant’s liability could not be the same as that of the borrower, and thus he was not liable for the outstanding balances claimed from the principal borrower. To illustrate the extent of a contract of guarantee, the appellant referred to an excerpt from The Law of Guarantees by Geraldine Andrews & Richard Millet 2nd Edition at page 156 as cited by Waki, Nambuye and Maraga JJ.A in Lalji Karsan Rabadia & 2 Others vs Commercial Bank of Africa eKLR, where it was stated;
15.To buttress the argument that a guarantor’s liability is only limited to the guaranteed amount and not the entire debt, the appellant cited the persuasive decision in Rajnikantkhetshi Shah vsHabib Bank A.g Zurich eKLR, where the High Court expressed itself as follows;Notably, the above decision was overturned on appeal to the effect that the plaintiff was ordered to pay the loan guaranteed. However, the scope of a guarantor’s liability as described remained unchallenged.
16.To counsel, the appellant’s liability as guarantor was limited to Ksh. 20 million, and he was discharged from the same after the charged property was sold for Ksh. 55 million. In support of this argument counsel cited Gurbux Singh Bhogal vs Fina Bank Limited & 3 Others eKLR, where this Court stated;It was further contended that the appellant was also discharged from liability as guarantor through the inequitable conduct of KENYAC by selling the charged property by private treaty during the pendency of the status quo court orders.
17.Counsel took issue with the learned Judge’s disregard of the fact that there was no basis for the bank imposing an interest rate of 35% per month which amounted to 420% per annum, when there was no provision for interest to be computed monthly. He contended that the bank having sold the suit property at Ksh. 55 million, it had a statutory duty to account and pay to the appellant the surplus of Ksh. 35 million with interest from the date when the purchase price was paid in full. Reference was made to Housing Finance Corporation of Kenya vs J.N Wafubwa  eKLR and section 69C of the Transfer of Property Act [repealed], for the argument that the residue of the money received by a mortgagee arising from a sale under a statutory power of sale should be remitted to the owner of the mortgaged property.
18.Next, it was asserted that the charged property was sold during the pendency of court injunctive orders, and the trial court was wrong in dismissing this claim on grounds that; the appellant had failed to commence contempt proceedings and there was no proof of service of the orders upon the respondents. Since the bank’s counsel was present when the orders were issued, it was argued, there was no need for service. Moreover, the sale of the charged property at Ksh. 55 million, comprising of 15,994.5 acres with all the developments on it including the sisal cultivation, was an extreme gross under value. Jhe judge was chastised for dismissing the plea for loss of future income or loss of profits arising from sisal sales in the face of uncontroverted evidence proving loss. Consequently, placing reliance on a number of decisions, Mr. Gachuhi contended that the learned Judge ought to have awarded the appellant damages.
19.Next, the learned Judge was faulted for failing to consider the evidence of the appellant’s valuer, Mr. Mwaka Musau and his valuation report which proved that the suit property was sold at a gross undersale. The report gives a breakdown of a claim for Ksh. 3,028,890,000. It was urged that the evidence of Mr. Mwaka Musau remained uncontroverted because the respondent did not do a valuation in 2010 to counter the figures therein. Maintaining that an expert report can only be rebutted by another expert report, counsel cited Stephen Kinini Wang'ondu vs The Ark Limited eKLR, where the High Court laid out the criteria that a court ought to use in weighing the probative value of expert evidence, namely;
20.Further, it was urged, in exercising the power of sale, a chargee is under a duty to act in good faith and to take reasonable care to obtain whatever is the true market value of the mortgaged property at the moment he chooses to sell it. For this proposition reliance was placed on Mbuthia -vs- Jimba Credit Finance Corporation & Another eKLR where this Court had recourse to the dicta of Lord Denning M.R in Standard Chartered Bank -vs- Walker 3 ALL ER 938.
21.In opposition to the cross-appeal, it was submitted that the appellant should have been awarded costs upon dismissal of the suit. The trial court’s finding that there was no privity of contract between National Bank of Kenya and the appellant was affirmed as proper. Counsel resisted the respondents’ alternative prayer that judgment be entered in Milimani HCCC No. 1420 of 1997, arguing that the respondents having elected to proceed with Milimani HCCC No. 132 of 2009, the alternative failed. To counsel, the counterclaim in HCCC No. 1420 of 1997 also failed for not distinguishing between the lawful amounts owed by the borrower and by the guarantor. Further, no evidence was adduced by the bank to prove how the claim of Ksh. 70,538,997.70 was arrived at. Ultimately, counsel urged that the cross-appeal be dismissed with costs.
22.Resisting the appeal, learned counsel Ms. Matunda submitted that the legal charge and the guarantee executed by the appellant are separate securities. Whereas the appellant executed a personal guarantee for Ksh.20 million, clause 12 of the charge incorporated a personal indemnity by the appellant to take full responsibility for payment of the entire mortgage debt. According to counsel, therefore, the two contracts entitled the respondents to recover the entire debt from the appellant. Concerning the appellant’s assertion that the respondents frustrated his equity of redemption, counsel affirmed the trial court’s finding on that issue as correct. The court found that the respondents were not bound by the plaintiff’s offers and counter-offers as they were below the outstanding debt, which was over Ksh. 160 million. Further, whereas the appellant offered 60 million to fully discharge the land and guarantees, the respondents wanted Ksh. 80 million to be applied to discharge all obligations.
23.With respect to the claim that the charged property was sold in contempt of court orders, Ms. Matunda agreed with the trial court’s determination in the matter to the effect that there was no proof that there was contempt of court, or that the sale was illegal. The trial court also determined that the injunction issued by the High Court on 20th August 1997 was reversed by the Court of Appeal in Nairobi Civil Appeal No. 242 of 1997. Counsel also contended that HCCC No. 270 of 2007 was unconnected with the statutory power of sale as the parties, the subject and the nature of reliefs therein were different.
24.On the claim for refund of the alleged surplus of Ksh. 35 million, counsel urged this Court to uphold the finding of the trial court to the effect that the appellant had not been discharged as the borrower was still owing Ksh. 106 million and counting, and therefore he could not validly claim to be entitled to a surplus of Ksh. 35 million. Concerning the validity of the sale of the suit property, counsel submitted that it was common ground that there was default in the payment of the loan, resulting in clause 7 of the charge setting in, as held by the learned Judge. The clause provided that the chargee’s statutory power of sale became exercisable without any further notice to the charger upon occurrence of some events, including but not limited to breach of any of the covenants and agreements. To counsel, since there had been a substantial exchange of correspondence concerning default from 1991 to 2007, the sale was valid.
25.Ms. Matunda next countered the claim that the appellant had not been served with the statutory notice, submitting that receipt of service had been admitted in pleadings in HCCC No. 108 of 2006 and HCCC No. 1420 of 1997. Regarding the contention that the suit property was sold at an undervalue, it was asserted that the property was valued by at least 4 different valuers on different occasions. In particular, on 11th September 2006, before the sale and at the request of the appellant and respondent, a government valuer assessed the property at Ksh. 55 million. Counsel contested the appellant’s reliance on the valuation conducted by Mr. Mwaka Musau at his request, arguing that it was conducted 3 years after the sale, on 9th January 2010, and it gave large values for non-existent items.The valuation rated the property to be worth Ksh. 3,028,890,000. In the view of counsel, it was not necessary for the respondents to conduct a new valuation in 2010 to contradict that of the appellant’s valuer as what was required by law was for them to demonstrate that before the sale in 2007, a current valuation was undertaken to ensure that the price attained was reasonable.
26.With respect to the counterclaim, it was submitted for the respondent that the trial court’s finding that the 1st respondent had no locus standi to institute a claim under the personal guarantee on behalf of the second respondent, was erroneous. The reasons were that the 2nd respondent was a direct party to the suit in the High Court, and the pleadings in HCCC No. 132 of 2009 disclosed that the 1st respondent instituted the claim on behalf of the 2nd respondent, KENYAC, having been taken over by National Bank of Kenya. In the end, counsel urged us to dismiss the appeal with costs, and allow the cross-appeal.
27.In reply to those submissions, Mr. Gachuhi maintained that the appellant’s liability was limited to Ksh. 20 million and not Ksh.106 million, asserting that the respondents had not countered any of the authorities he had cited.
28.We have given due consideration to the arguments made and authorities cited, and carefully analysed the entire record before us, bearing in mind the mandate of this Court under Rule 29(1) of the Rules of this Court, and consistent with a long line of authorities on the duty of a first appellate court. In our view the following germane issues arise;a)What is the nature and extent of the appellant’s liability under the charge and the guarantee?b)Was the sale of the charged property illegal by virtue of existence of injunctive court orders?c)Was the suit property sold at an undervalue?d)Was the appellant entitled to an award of damages for loss of income/profits?e)Was the appellant entitled to costs in HCCC No. 132 of 2009?f)Is the counter-claim valid?
29.Beginning with the question of the nature of liability of the appellant under the legal charge and the guarantee, the appellant insisted that his liability was limited to Ksh. 20 million as stipulated in the guarantee. The trial court evaluated this issue while highlighting the salient features of both the charge and the guarantee and made the following finding;
30.To the trial court therefore, the liability of the appellant under the legal charge was separate from that held under the guarantee. To appreciate the depth of the relevant provisions of both contracts we deem it fit to rehash them herein below, starting with the charge;The guarantee on the other hand provided;
31.The interpretation that lends itself to us with regard to the above provisions in the context of the two legal instruments is that it is by way of guarantee that the appellant undertook to pay the loan amount together with interest, costs and any charges thereof upon the borrower defaulting. The same undertaking by the appellant was restated in the charge instrument. This deduction is further informed, and logically so, by the fact that the loan amount and the guaranteed amount was the same, that is, Ksh. 20 million. We find the decision in Rajnikantkhetshi Shah(supra) quite decisive in this regard, that is, unless otherwise provided, where a guarantee limits the guarantor’s liability to a fixed sum, the guarantor will be liable to the extent of the guaranteed sum only and not the entire debt. Further, a guarantor’s liability is secondary to that of the principal debtor. See Lalji Karsan Rabadia(supra). Consequently, we hold the view that the appellant’s liability rested with the guarantee only.
32.The question that then arises is, to what extent was the appellant liable? The statutory demand notices sent to the appellant in 1997 claimed Ksh. 66,477,929 at an interest rate of 35% per month. After sale of the suit property in 2007, and as at February 2009, the respondents were demanding from the borrower the sum of Ksh. 106,636,945. The appellant contends that there was no basis for the bank imposing an interest rate of 35% per month, which amounted to 420% per annum whereas there was no provision for interest to be computed monthly. The charge instrument provided for interest to be charged at 19% per annum, with a penalty of 1% to be levied on each late payment. While we note that the charge had a condition granting the respondents the exclusive right to vary the rate of interest at any time without advising the chargee, we find it unconscionable and morally wrong that the bank would raise the interest rate from 19% per annum to the impossibly high rate of 35% per month, amounting to 420% per annum! That was on the face of it grossly unfair. Indeed, as testified by the appellant, this compounded interest largely contributed to the heavy indebtness. In cross-examination the appellant agonised, “I adhered with terms for a few years until the rates went to over 35% and I was unable to cushion the difference”. The situation was aggravated by the fact that the appellant made attempts to redeem the charged property but the same were declined by the respondents. We concur with this Court’s reasoning in Pius Kimaiyo Langat - vs- Co-operative Bank of Kenya Limited  eKLR, [Per Waki, Makhandia & Ouko, JJ.A] which is worth citing in extenso;
33.Being of the same opinion as restated above, we cannot possibly enforce the oppressive interest rates as claimed by the respondents. Nor should any court lend its support to such onerous, unconscionable and plainly usurious conduct by lenders.
34.Next is whether the sale was illegal by virtue of existence of injunctive court orders. The appellant claimed that there were court orders in various cases prohibiting the disposal of the suit property by the respondents. The record bears court orders in Milimani HCCC 270 of 2007 issued on 24th July, 2007 for the status quo to be maintained until 17th October, 2007. On 5th November, 2007 interim orders were extended until 3rd December, 2007. On 19th February, 2008 interim orders were further extended. Whereas the defendants disputed the tenor of those orders, the trial court observed that the content of the interim orders was not known and neither was there evidence of their extraction and service. However, contrary to the court’s finding, the orders indicate that counsel for the parties herein were present when the orders were issued. Accordingly, the respondents ought to and are deemed to have been aware of their nature. Besides, the parties herein were defendants in that matter. It appears to us, therefore, that the sale of the suit property that took place on 5th September, 2007 was in violation of valid court orders.
35.As to whether the suit property was sold at an undervalue, the appellant placed heavy reliance on the evidence of his valuer, Mr. Mwaka Musau. The respondents on the other had disputed that evidence, asserting that prior to the sale of the suit property in 2007, a valuation had been done by a government valuer, by which the property had been assessed at Ksh. 55 million and sold at the same price. The learned Judge analysed the valuer’s evidence and observed;
36.The Judge upon citing some of the particularised components of Mr. Mwaka Musau’s valuation report however, proceeded to state, “The pleaded damages were not proved to the standard required by law. They were literally thrown to court and the plaintiff sought to be granted the same”. The learned Judge made this finding even after the valuer had testified in court and been cross-examined on the same. As we ponder about what the Judge meant by, “the pleaded damages were not proved to the standard required by law” we think the learned Judge fell into error in making such a finding, noting that he had earlier alluded to the detailed nature of that report. The report was elaborate, breaking down the various values of the land, buildings, sisal, quary and road network totalling Ksh. 3,028,890,000. Further, the credibility of the valuation report was subjected to the test in the cross-examination of Mr. Mwaka by the respondents. Significantly, the report was supported by photographic evidence indicating the developments on the suit land, that is, sisal plantations, farm buildings, water catchment region and quarry. The same is not demonstrated in the other valuation reports on record. There is also no substantive rebuttal of Mr. Musau’s valuation report based on a similar valuation undertaken in the year 2010. As properly held in Stephen Kinini Wang'ondu (supra), expert evidence can only be challenged by another expert. We also associate ourselves with the criteria for assessing an expert’s evidence as outlined in the same decision, rehashed herein below for emphasis.
37.In the result, subject to what we shall shortly state with regard to the crops, we find the appellant’s valuation report to be solid in content and uncontroverted. It was not to be merely wished away. And we are on balance persuaded by the appellant’s contention that the suit property was sold at an undervalue.
38.In the circumstances, is the appellant entitled to an award of damages for the sale of the suit property at an undervalue and for loss of future profits? In addressing this question, we are guided by the recent decision of the Supreme Court in Attorney General -vs- Zinj Limited  eKLR, where the apex Court upheld the trial court’s reliance on the valuation report of a private valuer in assessing the quantum of special damages. The Court held;
39.Based on that authoritative pronouncement by the apex court, we find that the appellant having been deprived of his property under the circumstances we have addressed, he was entitled to the proven value of his property as special damages. These were required to be specifically pleaded and strictly proved. In the amended plaint the value of the property is indicated as Kshs.3,028,890,000. The foundation and proof of that sum is the report by Mweka Musau Consultants and it was testified to by its maker, E. M. Musau.
40.Having ourselves carefully considered and analysed the report together with the testimony of its maker, we observe that whereas it is fully detailed and contains clear workings on how the values of the various parts of the property in land and buildings, with their actual physical state described, it is not as detailed with regard to the crops. The report places the value of crops - the old and new sisal plantation at Kshs.768,000,000 and Kshs.614,000,000, respectively which would total Kshs.1,382,000,000. We think, however, and in line with the case law referred to in Stephen Kinini Wangondu -vs- Ark Limited (Supra), there is a deficit of justification especially considering that at p.39 the report states that “At the time of inspection all farming activities had ceased. Parts of the sisal plantation had been uprooted. (See photographs).”
41.The photographs do show remnants of a sisal crop same having evidently been uprooted. The appellant and his witness had testified that at the time of the sale the sisal plantation was full. Given that state of the evidence, and being mindful that we are not inflexibly bound by an expert’s opinion which we must consider alongside all the other evidence, we think that the value attached to the sisal crop should be discounted by 50%. In the result, we would reduce by Kshs. 691,000 to Kshs.2,537,890,000.
42.Recognizing further that the valuation by Mweke Musau was over two years after the sale, and being mindful that compensation should relate to the time of the deprivatory sale, we would discount that sum by a further 10% leaving a reasonable and fair value of Kshs.2,284,101,000 as special damages.
43.This is further in keeping with section 99(4) of the Land Act, 2012 which states;
44.Our foregoing analysis leads to the inescapable conclusion that the appellant was treated by the respondents in a shabby and wholly unacceptable if not tyrannous manner in the entire transaction. In particular, the respondents conduct of charging the appellant manifestly excessive interest rates, declining his offers to redeem the debt and then proceeding to sell the property at less than the amount he offered, and at a gross under sale, was a plain breach of a bank’s duty to act with care and in good faith. He may not have been a model guarantor but, like Shakespeare’s King Lear, he definitely was a man more sinned against than sinning. And he was entitled to the aid of the law. It follows that the recovery suit instituted by the respondents in Milimani HCCC No. 132 of 2009 was misguided. We therefore find the counter-claim to be without basis.
45.We have said enough to show that this appeal is for allowing. We set aside the Judgment and decree of the High Court, save for the dismissal of the counterclaim which we leave undisturbed, substituting therefor an order that the amended plaint is allowed in the following terms;(a)A declaration that the plaintiff is discharged and released from all liability under the Legal Charge dated 29th January, 1991 and Guarantee dated 22nd January, 1991.(b)A declaration that the Defendant did not have any legal right to exercise the statutory power of sale in respect of the LR No. 5865/2 and that the Agreement for sale and transfer dated 5th September, 2007 were executed in contempt of the injunctive orders issued in Milimani HCCC No. 270 of 2007 Amos Mutuki Mutungi & Another vs Basil Criticos, Agro Development Company Limited, National Bank of Kenya Limited and the Registrar of Titles and Milimani HCCC No. 108 of 2006 Agro Development Company Limited & Basil Criticos vs National Bank of Kenya Limited.(c)A declaration that the sale of LR No. 5865/2 for the sum of Kshs. 55,000,000 to the 2nd Defendant was a gross under value.(d)A mandatory injunction compelling the 1st Defendant to pay to the Plaintiff the sum of Kshs.35,000,000 being the surplus realised from the sale of LR No. 5865/2.(e)Damages of Kshs.2,284,101,000 for the unauthorised improper and irregular sale assessed at the market value of the property LR No. 5865/2 together with interest at court rates thereon from the date of this judgment until payment in full.(f)Costs of the suit.
46.The cross-appeal is dismissed for want of merit.
47.We make no order as to costs.