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Court of AppealDismissedCivil Appeal No. 20 of 1983

RICHARD SAIDI ………….……. vs BROWN AURA KHAYINGA [1983] KECA 126 (KLR)

Court of Appeal
8 December 1983
1,536 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you cannot re-argue facts in a second appeal, and your appeal fails if the record lacks the lower court's decree.

What this practically means

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Executive summary

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The appellant, a bar owner in Malava, sued the respondents, his former tenants, for special and general damages arising from a four-year dispute over the tenancy. The respondents counterclaimed for special damages of Kshs 3,093 (later found pleaded as Kshs 2,743) for loss of their property after the appellant locked them out. After a decade of litigation including a Business Premises Rent Tribunal order and a dismissed then reinstated suit, a Kakamega acting resident magistrate dismissed the appellant's claim and allowed the counterclaim in special damages, refusing general damages for want of proof. The appellant's first appeal to the High Court (Gicheru, Ag J) was summarily rejected under section 79B of the Civil Procedure Act. He then appealed to the Court of Appeal at Kisumu. The court, per Kneller, Hancox and Platt JJ.A., held that as a second appeal it lay only on grounds of law under section 72(1) and that matters of fact were barred by section 71A. It found the quantum point arguable in the appellant's favour, since only Kshs 2,743 had been claimed yet Kshs 3,093 awarded, and suggested a correction under section 99. However, the appeal was incompetent because the record omitted the High Court decree, contrary to rule 85(1) of the Court of Appeal Rules. Despite indulgence to the unrepresented parties, the appeal was dismissed with costs; the High Court's summary rejection was otherwise affirmed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the courts below misdirected themselves in finding that special damages of Kshs 3,093 had been claimed and proved when only Kshs 2,743 was claimed in the counterclaim
  2. 2.Whether the learned judge was entitled to reject the first appeal summarily under section 79B of the Civil Procedure Act
  3. 3.Whether an appeal to the Court of Appeal lies only on grounds of law under section 72(1) and section 71A of the Civil Procedure Act
  4. 4.Whether the appeal was competent in the absence of the decree of the High Court appealed from

Key legal issues

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01

Scope of a second appeal under section 72(1) of the Civil Procedure Act

Holding

The second appeal lies only on grounds that the decision is contrary to law, failed to determine a material issue of law or usage having the force of law, or on a substantial procedural defect; matters of fact cannot be raised (section 71A).

Reasoning

The court set out the statutory grounds for second appeals and held that of the appellant's eighteen grounds, only the quantum/proof point and the summary-rejection point fell within section 72(1)(a) and (c); all other matters were questions of fact barred on second appeal.

p. 3
02

Competence of the appeal for want of the decree appealed from

Holding

The appeal was incompetent because the record did not include the decree of the High Court appealed from, contrary to rule 85(1) of the Court of Appeal Rules, but the court dealt with the points raised because the parties were unrepresented.

Reasoning

The court invoked its own prior decisions on the requirement that the decree be included in the record. Although the omission rendered the appeal incompetent, the court exercised indulgence towards unrepresented lay parties and considered the substantive law points before dismissing the appeal with costs.

p. 3
03

Summary rejection of a first appeal under section 79B

Holding

The High Court judge was entitled to reject the first appeal summarily, but in a first appeal questioning the proof of a counterclaim, the quantum claimed and the proof of the items should have been scrutinised; the discrepancy between Kshs 3,093 awarded and Kshs 2,743 claimed meant there were grounds for interfering with the damages award.

Reasoning

The court perused the material before the judge and concluded the summary rejection was broadly right. However, since the first appeal specifically questioned proof of the counterclaim, and the counterclaim was only for Kshs 2,743 while Kshs 3,093 was awarded, the counterclaim should not have been wholly rejected summarily; a correction under section 99 was suggested.

p. 3

Legal principles established

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  • A second appeal to the Court of Appeal from a decision passed in appeal lies only on grounds of law or substantial procedural defect, not on matters of fact.
  • An appeal to the Court of Appeal is incompetent if the record does not include the decree of the court appealed from.
  • A summary rejection under section 79B requires the judge to peruse the appeal material and be satisfied there is no sufficient ground for interfering with the decree or order appealed against.

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.A suggestion that the appellant apply on notice under section 99 of the Civil Procedure Act to the present resident magistrate, Kakamega, to correct the figure Kshs 3,093 to Kshs 2,743 in the magistrate's judgment

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kakamega
Civil Appeal No. 10 of 1983
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act (second appeal from a decision passed in appeal)

Relief refused

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The appellant's appeal against the summary rejection of his first appeal and against the finding on the counterclaim

Although the quantum point had merit, the appeal record did not include the decree of the High Court appealed from, rendering it incompetent; the court nonetheless dismissed the appeal on the merits of the law points available on second appeal

p. 3

Costs

The appeal is dismissed with costs, i.e. the appellant pays the respondents' costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This is an appeal from an order passed in appeal by the High Court so a second appeal to this court only lies on any of the following grounds, namely
p. 3Scope of second appeal - grounds of law only
The other matters put forward are matters of fact and cannot be put forward in this appeal which is a second one from a subordinate court. Section 71A.
p. 3Bar on raising matters of fact in a second appeal
The appeal record does not include the decree of the High Court appealed from so it is for that reason incompetent. Rule 85(1) Court of Appeal Rules.
p. 3Incompetence of appeal lacking the decree appealed from
It follows that the counterclaim should not have been summarily rejected because there were grounds for interfering with the damage.
p. 3Scrutiny of quantum and proof of counterclaim in a first appeal
Therefore, this appeal must be dismissed with costs and we so order.
p. 3Final orders - disposition

Issues in the judgment

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minor

The judgment states the counterclaim special damages as both 'Kshs 3,093' and 'Kshs 2,743' in different passages, and also refers to 'Kshs l2,743' (a typo for Kshs 2,743); the discrepancy is itself the basis of one of the court's findings.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "RICHARD SAIDI ………….……. vs BROWN AURA KHAYINGA [1983] KECA 126 (KLR)", Case Analysis (1983). Civil Appeal No. 20 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/126/eng@1983-08-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.