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Court of AppealDismissedCivil Appeal No. 159 of 2004· [2005] KECA 165 (KLR)

David Musyimi Ndetei t/a Oasis Mineral Water Company & another v Safepak Ltd [2005] KECA 165 (KLR)

Court of Appeal of Kenya
8 July 2005
Philip Kiptoo TunoiP.K. TunoiEOE.O. O'KubasuWDW.S. Deverell
2,729 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that expert reports do not guarantee wins: courts weigh all evidence, and appellants rarely overturn a trial judge's factual findings.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Tunoi, O'Kubasu and Deverell, JJ.A) dismissed this appeal against the judgment of Gacheche, J delivered on 6th November 2002 in H.C.C.C. No. 92 of 1998, which had awarded Safepak Limited Shs.748,892.00 against the 1st appellant with costs and interest, and dismissed the appellants' counterclaim. Safepak manufactured P.E.T. bottles and sued for unpaid supplies; the 1st appellant defended on the ground that the bottles were sub-standard and unfit for bottling water, claiming Shs.18,984,658.00 by counterclaim, later amended to add a claim of industrial defamation. The 2nd appellant was never served and took no part. The central appellate complaint was that the trial Judge wrongly dismissed, off-hand, the analytical report of Dr. Gachanja, an expert analytical chemist, which traced foreign particles in the bottled water to elements in the coloured bottles. The Court reaffirmed the principle from Pravin Singh Dhalay and Elizabeth Kamene Ndolo that expert opinions are not binding and must be weighed with all other evidence, and that a court may reject expert opinion on good and cogent grounds. It held the trial Judge gave cogent reasons for not relying on the expert evidence, including the 1998 Kenya Bureau of Standards complaint about the appellants' water two years after they stopped buying the respondent's bottles. Applying Peters v Sunday Post Limited, the Court declined to disturb the findings of fact, and dismissed the appeal with costs.

Key legal issues

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01

Probative value and treatment of expert evidence

Holding

The trial Judge properly assessed the logical and legal relevance of Dr. Gachanja's evidence, derived its probative value, and was entitled to reject it in favour of other evidence; she did not dismiss it off-hand.

Reasoning

Although Dr. Gachanja was properly qualified and his testimony logically relevant, the Court held the issues could not be resolved by expert evidence alone. The trial Judge was obliged to consider other evidence, including that of PW1 and PW11, and she gave good and cogent reasons for not placing reliance on the expert report, notably the Kenya Bureau of Standards complaint in 1998 about the appellants' water two years after they stopped buying the respondent's bottles.

p. 5
02

Appellate deference to trial judge's findings of fact

Holding

The appellate court declined to disturb the trial Judge's factual findings on merchantable quality, fitness for purpose, negligence and causation.

Reasoning

The Court applied the established principle that it is a strong thing for an appellate court to differ from the factual findings of the judge who saw and heard the witnesses. The grounds relating to fact lacked cogent reasons for interference, and the grounds on expert evidence were misplaced; accordingly all grounds of appeal were rejected and the appeal failed.

p. 5

Legal principles established

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  • Expert opinions are not binding on courts; expert evidence must be weighed with all other evidence, and a court may reject it on good and cogent grounds with reasons.
  • Where a qualified expert gives a reasoned opinion uncontradicted by other evidence, there is no basis for rejecting it; but if the court is satisfied on good and cogent grounds that the opinion is not soundly based, it is under a duty to reject it.
  • An appellate court will not lightly differ from findings of fact made by the trial judge who saw and heard the witnesses.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Appellants to pay costs of the appeal

Authorities

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Legislation

  • Companies Act

Cases cited (3)

  • Pravin Singh Dhalay v Republic
    Nairobi Criminal Appeal No. 10 of 1997 (unreported)
  • Elizabeth Kamene Ndolo v George Matata Ndolo
    Civil Appeal No. 128 of 1995
  • Peters v Sunday Post Limited
    [1958] E.A. 424
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 92 of 1998
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court under the appellate provisions governing civil appeals (judgment rendered as 'JUDGMENT OF THE COURT')

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Musyimi Ndetei t/a Oasis Mineral Water Company & another v Safepak Ltd [2005] KECA 165 (KLR)", Case Analysis (2005). Civil Appeal No. 159 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/165/eng@2005-07-08

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