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Court of AppealDismissedCivil Appeal No. 73 of 1995· [1997] KECA 285 (KLR)

MBUGUA KAHARO vs KIRITU MBUGUA [1997] KECA 285 (KLR)

Court of Appeal
22 April 1997
RKR.O. KwachPhilip Kiptoo TunoiP.K. TunoiASA.B. Shah
140 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it will only hear second appeals on questions of law, so appeals based only on facts will be dismissed with costs.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nairobi by Mbugua Kaharo against Kiritu Mbugua, arising from a judgment of the High Court of Kenya at Nairobi (Dugdale, J) dated 20th December 1993 in H.C.C.C. No. 275 of 1992. The coram comprised Kwach, Tunoi and Shah, JJ.A., and the judgment was delivered as a single judgment of the Court on 22nd April 1997. The Court framed only one question: whether the appeal raised any issue of law in terms of Section 72(1) of the Civil Procedure Act, which governs second appeals. The Court found that no such issue of law had been raised. On that basis, and without any further analysis of the merits or of the evidence below, the Court held that the appeal failed. The judgment is extremely brief: it identifies the statutory threshold for second appeals, records the Court's inability to find an issue of law, and disposes of the matter. The appeal was dismissed with costs to the respondent. The decision below was thereby left undisturbed and stands affirmed. The binding significance of the judgment lies in its restatement of the settled principle that a second appeal to the Court of Appeal lies only on matters of law, and that an appeal which discloses no issue of law within Section 72(1) of the Civil Procedure Act must be dismissed. No authorities were cited and no separate opinions were rendered; the bench was unanimous.

Key legal issues

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01

Whether the second appeal raised an issue of law under Section 72(1) of the Civil Procedure Act

Holding

The appeal was dismissed because no issue of law was raised as required for a second appeal.

Reasoning

The Court of Appeal, sitting as a second appellate court, is confined under Section 72(1) of the Civil Procedure Act to questions of law. Having examined the appeal, the Court found no issue of law raised in terms of that provision. In the absence of such an issue, the Court had no basis to interfere with the judgment of Dugdale, J, and the appeal necessarily failed, with costs following the event to the respondent.

p. 2

Legal principles established

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  • On a second appeal under Section 72(1) of the Civil Procedure Act, the Court of Appeal will only entertain issues of law; an appeal disclosing no such issue of law must fail.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 72(1)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 275 of 1992
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act (second appeal on issues of law)

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, "MBUGUA KAHARO vs KIRITU MBUGUA [1997] KECA 285 (KLR)", Case Analysis (1997). Civil Appeal No. 73 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/285/eng@1997-04-22

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