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Court of AppealDismissedCivil Appeal 254 of 2002· [2007] KECA 122 (KLR)

1. Joseph Kimari 2. Reuben Gichungu 3. Teresia Nyambura v 1. Johanna Mbogo 2. Mtumishi Church of God

Court of Appeal of Kenya
20 December 2007
Philip Kiptoo TunoiP.K. TunoiEOE.O. O'KubasuWDW.S. Deverell
1,147 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a Kshs 300,000 award against three Dandora traders who demolished a church building, trusting the trial judge's assessment of witnesses.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the judgment of Rimita, J (High Court, H.C.C.C. No. 446 of 2000, dated 13th March 2002), which awarded the 1st respondent Kshs. 300,000 jointly and severally against the three appellants, petty traders occupying adjacent plots in Dandora, for trespass and destruction of a church building and residential house. The respondents had earlier been unable to sustain a criminal malicious damage charge. The appellants raised two principal grounds: that the suit was incompetent because the Church, being merely a society, had no capacity to sue; and that damages were awarded without proof of trespass. The Court rejected the capacity objection, noting that the learned Judge had in fact struck out the Church's name and confined the award to the 1st respondent as owner of the plot. On the facts, the Court applied the settled principles governing a first appeal - that it must re-evaluate the evidence while respecting the trial court's advantage of seeing and hearing the witnesses, as set out in Peters v Sunday Post, Selle v Associated Motor Boat Co. and Ephantus Mwangi v Duncan Mwangi Wambugu. Finding the appellants' evidence evasive and their feigned ignorance of the demolition incredible, the Court held the trial Judge acted on correct principle and dismissed the appeal with costs to the respondents. The decision affirms the High Court judgment in its entirety.

Key legal issues

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01

Capacity of the Church to sue

Holding

The contention that the suit was incompetent fails because the trial Judge struck out the Church's name and confined the award to the 1st respondent personally

Reasoning

The trial Judge observed, probably correctly, that the Church was only a society without capacity to sue or be sued as described in the pleadings. However, he decided the dispute on the basis that the 1st respondent, being the owner of the plot on which the church building stood, was the proper party to sue, and excluded the Church from the benefit of the award. The ground of appeal was therefore misconceived.

p. 2
02

Trespass and destruction of the church building

Holding

The appellants were properly held liable for trespass and demolition; the trial Judge's findings of fact, based on witness demeanour, could not be disturbed

Reasoning

The appellants did not deny that the Church was demolished but feigned ignorance as to who did so, claiming a boundary dispute. The Court found their evidence evasive and held it illogical to expect strangers to have destroyed the Church. The trial Judge had seen and heard the witnesses and gauged their demeanour, so his finding on credibility stood.

p. 3

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence and draw its own conclusions, while remembering it neither saw nor heard the witnesses
  • An appellate court will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, on a misapprehension of the evidence, or the judge acted on a wrong principle

Court orders

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  1. 1.Appeal dismissed with costs to the respondents
On appeal from
High Court of Kenya, Nairobi
H.C.C.C. No. 446 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal under the Kenyan appellate framework (specific enabling provision not stated in the judgment)

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, "1. Joseph Kimari 2. Reuben Gichungu 3. Teresia Nyambura v 1. Johanna Mbogo 2. Mtumishi Church of God", Case Analysis (2007). Civil Appeal 254 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/122/eng@2007-12-20

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