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Court of AppealAllowedCivil Appeal 335 of 2003· [2009] KECA 219 (KLR)

DAMIANO MIGWI v TIMOTHY MAINA WAITUGI [2009] KECA 219 (KLR)

Court of Appeal of Kenya
10 July 2009
SBS.E.O. BosirePWP.N. WakiJNJ.G. Nyamu
2,557 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that whoever claims money owed under an agreement must prove it exists, and the court dismissed the claim outright.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Bosire, Waki and Nyamu, JJA) allowed a second appeal against the dismissal by Khamoni, J of the appellant's first appeal. The respondent had sued the appellant in the Senior Resident Magistrate's Court at Nyeri for Kshs.18,000/=, alleging an agreement made before police officers and a game warden that the appellant would compensate him Kshs.23,000/= for a hired vehicle detained and potatoes damaged after the appellant blocked the Nyeri-Kabage road, Kshs.5,000/= having been paid. The trial magistrate gave judgment for the respondent, reasoning that in the absence of rebuttal of his arrest the appellant must have committed himself to pay. Khamoni, J dismissed the first appeal in a short judgment. The Court of Appeal held that a second appeal lies only on matters of law under section 72 of the Civil Procedure Act, and that whether the first appellate court properly re-evaluated the evidence is such a matter. It found the High Court had failed to reappraise the evidence as it was duty-bound to do, and that there was no evidence of the alleged agreement apart from the respondent's testimony, which the appellant vehemently denied. The trial magistrate had wrongly shifted the burden of proof onto the appellant. The Court allowed the appeal, set aside the High Court judgment, allowed the first appeal, dismissed the respondent's suit, and awarded the appellant costs throughout.

Key legal issues

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01

Scope of a second appeal

Holding

A second appeal is confined to matters of law; the grounds raised here, including failure to evaluate evidence, are issues of law.

Reasoning

Section 72(1) of the Civil Procedure Act permits appeal to the Court of Appeal from every decree passed in appeal by the High Court only where the decision is contrary to law, fails to determine a material issue of law, or involves procedural error. Whether the first appellate court properly re-evaluated evidence is a question of law, so the appeal was properly before the Court.

p. 3
02

Duty of the first appellate court

Holding

The High Court failed to re-evaluate the evidence, warranting interference by this Court.

Reasoning

The first appellate court must reappraise the entire evidence, make its own findings, and allow for the fact it did not see the witnesses. Khamoni, J's short judgment showed no analysis or re-evaluation and misappreciated the pleaded cause of action and the onus of proof, so the Court of Appeal was entitled to interfere with the findings of both courts below.

p. 4
03

Burden of proof of the alleged agreement

Holding

The respondent failed to prove the alleged agreement for payment of Kshs.23,000/=; the suit should have been dismissed.

Reasoning

The cause of action was a contract allegedly made before police officers and a game warden for payment of a liquidated sum. There was no documentary or other evidence of the agreement apart from the respondent's testimony, which the appellant vehemently denied. The trial magistrate wrongly shifted the burden of proof to the appellant and treated his arrest as evidence of commitment to pay.

p. 5

Legal principles established

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  • On a second appeal only matters of law may be taken; an appeal lies to the Court of Appeal from a decree passed on appeal by the High Court only on grounds of law or procedure.
  • A first appellate court has a duty to reappraise the entire evidence on record and make its own findings of fact before deciding whether a trial court's decision can be supported.
  • A claim for a liquidated sum under an alleged agreement must be proved by the plaintiff; the defendant bears no burden of proof, and a finding based on an alleged failure to rebut is a misdirection on the burden of proof.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the superior court dated 23rd October 2003 and all consequential orders set aside
  3. 3.Appellant's appeal from the Resident Magistrate's judgment of 26th August 2002 allowed with the result that the respondent's suit is dismissed with costs to the appellant
  4. 4.Appellant awarded costs of this appeal and of the appeal before the superior court

Authorities

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Legislation

  • Civil Procedure ActSection 72(1)

Cases cited (4)

  • Maina v Mugiria
    [1983] KLR 78
  • Peters v Sunday Post Ltd
    [1959] EA 424
  • Selle & Another vs. Associated Motor Boat Company Ltd & others
    [1968] EA 123
  • Mwangi v Wambugu
    [1984] KLR 453
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 139 of 2002
Jurisdiction invoked
Section 72 of the Civil Procedure Act (second appeal on matters of law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "DAMIANO MIGWI v TIMOTHY MAINA WAITUGI [2009] KECA 219 (KLR)", Case Analysis (2009). Civil Appeal 335 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/219/eng@2009-07-10

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