IBRAHIM MULU M’INYINGI v PETER M’ITABATHI [1996] KECA 74 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it will not disturb two lower courts' agreeing findings of fact unless a genuine point of law is raised.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the second appeal raises a point of law within the meaning of Section 72 of the Civil Procedure Act (Cap 21)
Key legal issues
#Whether the second appeal disclosed a point of law under Section 72 of the Civil Procedure Act
No point of law was raised; the appeal was against concurrent findings of fact by the subordinate court and the High Court, which the Court of Appeal would not disturb.
The plaint in the subordinate court did not identify the parcel of land allegedly trespassed upon, so the Court could not tell whether the appellant referred to the same parcel as that in the counterclaim. In any event, both courts below had considered the issues and made concurrent findings with which the Court found no fault, so the appeal lacked merit and was dismissed with costs.
Legal principles established
#- A second appeal lies only on a point of law within the meaning of Section 72 of the Civil Procedure Act, and a second appeal court will not disturb concurrent findings of fact by the two courts below absent fault.
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H.C.C.A. No. 15 of 1995
- Jurisdiction invoked
- Section 72 of the Civil Procedure Act (Cap 21) - second appeal on a point of law
Relief refused
#The appellant's appeal against the concurrent findings of the subordinate and superior courts
No point of law was raised and the courts below made concurrent findings with which the Court of Appeal could find no fault
Costs
The appeal is dismissed with costs to the respondent
Quotable passages
#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 a second appeal on an interlocutory application. There is no point of law raised within the meaning of Section 72 of the Civil Procedure Act (Cap 21).
In any event, both the subordinate and superior courts considered the issues and made a concurrent finding with which we can find no fault.
The appeal, therefore, lacks merit and it is hereby dismissed with costs.
Issues in the judgment
#The coram states the judgment was delivered at Nairobi while the header shows the Court of Appeal at Nyeri; the judgment text itself says 'Dated and delivered at Nairobi'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "IBRAHIM MULU M’INYINGI v PETER M’ITABATHI [1996] KECA 74 (KLR)", Case Analysis (1996). Civil Appeal 141 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/74/eng@1996-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.