Mungai (legal representative & administrator of the Estate of the late John Mungai Karua) v Gachie & 2 others (Civil Appeal 46 of 2006) [2012] KECA 94 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that liability split in an earlier appeal is binding, and points never raised at trial cannot be raised for the first time on appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the apportionment of liability between the parties had already been determined in Civil Appeal No. 193 of 2001
The apportionment was settled: the appellant's liability of 30% apportioned by the trial court was attributed to the 2nd respondent as principal in the contract, leaving the appellant bearing no separate liability to the 1st respondent beyond the 50% figure referred to in the prior appeal.
The court in Civil Appeal No. 193 of 2001 had upheld the trial judge's finding of negligence and poor workmanship and had observed that the apportionment between the appellant and the 3rd respondent was only to facilitate indemnity claims. The appeal against the 3rd respondent having abated, the appellant's liability to the 1st respondent stood at 50% as borne by the 2nd respondent as principal. This court agreed with that analysis on its own evaluation of the evidence.
Whether the appellant could complain of being joined as a third party without prior directions
No. Having been served with the third party notice and having fully participated in the trial without seeking directions, the complaint was an afterthought.
The appellant filed a defence to the third party notice, testified and filed written submissions. If he wished to take directions or amend pleadings he should have said so upon service of the notice. Raising the objection for the first time on appeal does not afford the parties proportionality of remedying the situation.
Whether the evidence of PW2 was properly admitted despite his allegedly unrecognized qualifications
The issue could not be raised on appeal because it was never put to the witness during cross-examination at trial.
It is impossible for an appellate court to determine the qualifications of a witness that were never questioned at trial. Objections to a witness's competence or expertise must be taken when the witness testifies, by cross-examination, failing which they are foreclosed on appeal.
Legal principles established
#- Issues already determined by a prior judgment of the Court of Appeal in the same litigation, including apportionment of liability, are settled and bind the court in a related appeal by another party
- A third party who has been served with a third party notice and fully participates in the trial cannot, on appeal, complain that he was wrongly joined or that directions were not taken before trial
- A party cannot challenge the qualifications of an adverse witness for the first time on appeal where the point was never put to the witness in cross-examination at trial
Court orders
#- 1.The appeal is allowed in terms of the apportionment of 50% of liability to the 2nd respondent, who was the principal in the contract of sale
- 2.The apportionment of 20% and 30% made by the trial court is treated as merely indicative of what the 2nd respondent could recover from the appellant by way of indemnity
- 3.Each party to bear their own costs of this appeal
- On appeal from
- High Court of Kenya (superior court, Nakuru)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court's Rules (judgment delivered pursuant to rule 32 of the Court's Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mungai (legal representative & administrator of the Estate of the late John Mungai Karua) v Gachie & 2 others (Civil Appeal 46 of 2006) [2012] KECA 94 (KLR)", Case Analysis (2012). Civil Appeal (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/94/eng@2012-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.