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Court of AppealDismissedCivil Appeal 147 of 2003· [2008] KECA 250 (KLR)

Hudson Kisala Lubanga v Associated Construction Co. Ltd [2008] KECA 250 (KLR)

Court of Appeal of Kenya
25 April 2008
PWP.N. WakiEOE.O. O'Kubasu
2,403 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a contractor following contract specifications is not liable when poor building work and storm water cause the damage.

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 Kisumu by an unsuccessful plaintiff, Hudson Kisala Lubanga, against the judgment of Waweru, J. of the High Court at Kakamega (H.C.C.C. No. 133 of 1999, delivered 27 March 2003) dismissing his negligence suit against Associated Construction Co. Ltd. The appellant alleged that the respondent's road-works excavation beneath his verandah caused its collapse; the respondent denied negligence and contended the verandah was an illegal structure on the road reserve and that its foundations were sub-standard. O'Kubasu, JA, with Waki, JA concurring in a separate brief judgment, dismissed the appeal on liability, holding quantum unnecessary to decide. The Court re-affirmed that a first appeal is a rehearing requiring re-evaluation of the evidence with allowance for the appellate court's inability to see or hear witnesses, and that an appellate court will not interfere with trial findings of fact unless they rest on no evidence, a misapprehension of the evidence, or demonstrably wrong principles. On the facts, the respondent had excavated within the road reserve in accordance with contract specifications without encroaching on the appellant's property; heavy rainfall caused storm water to collect in the excavations and undermine the verandah column foundations, which had not been constructed to acceptable standards by the appellant. The respondent was therefore not liable. The final order dismissed the appeal with costs to the respondent.

Key legal issues

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01

Liability for the collapse of the appellant's verandah

Holding

The respondent was not negligent; it excavated in accordance with contract specifications and did not encroach on the appellant's property. The collapse was caused by the appellant's own negligence (foundations of the verandah columns not constructed to acceptable standards) combined with storm water collecting in the excavations.

Reasoning

The evidence showed the respondent excavated within the road reserve per contract specifications. Heavy rainfall caused storm water to collect in the excavations, undermining the verandah columns' foundations, which had not been built to acceptable standards. As those foundations were not constructed by the respondent, the trial judge was entitled to find the appellant's own negligence caused the collapse.

p. 5
02

Appellate interference with findings of fact on a first appeal

Holding

The Court of Appeal declined to interfere with the trial judge's findings of fact, having re-evaluated the evidence and reached the same conclusion.

Reasoning

The trial judge saw and heard the witnesses and preferred the respondent's version. Applying Peters v Sunday Post, Selle, Williams Diamonds, Kogo and Ephantus Mwangi, the Court found no basis - no absence of evidence, misapprehension of evidence, or wrong principle - to disturb those findings.

p. 5

Legal principles established

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  • A first appeal is a rehearing: the Court of Appeal must re-evaluate and analyse the evidence and reach its own conclusions, while giving allowance to the fact that it neither saw nor heard the witnesses.
  • An appellate court will not normally interfere with a trial court's finding of fact unless it is based on no evidence, on a misapprehension of the evidence, or the judge demonstrably acted on wrong principles.
  • Where a contractor's excavation is carried out in accordance with contract specifications, damage caused instead by the plaintiff's own sub-standard construction and storm water does not attract liability against the contractor.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Cases cited (6)

  • PETERS V. SUNDAY POST LTD.
    [1958] E.A. 424
  • SELLE & ANOTHER VS. ASSOCIATED MOTOR BOAT CO. LTD. & OTHERS
    [1968] E.A. 123
  • WILLIAMS DIAMONDS LTD. V. BROWN
    [1970] E.A. 1
  • KOGO V. NYAMOGO & NYAMOGO ADVOCATES
    [2004] 1 KLR 367
  • DODD PROPERTIES (KENT) LTD. AND ANOTHER V. CATERBURY CITY COUNCIL AND OTHERS
    [1980] 1 ALL E.R. 928
  • EPHANTUS MWANGI & ANOTHER VS. DUNCAN MWANGI WAMBUGU
    [1982-88] 1 KAR 278
On appeal from
High Court of Kenya at Kakamega
H.C.C.C. No. 133 of 1999
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate jurisdiction of the Court of Appeal (no specific constitutional or statutory provision quoted 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, "Hudson Kisala Lubanga v Associated Construction Co. Ltd [2008] KECA 250 (KLR)", Case Analysis (2008). Civil Appeal 147 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/250/eng@2008-04-25

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