Naomi Kemunto v Total (k) Limited & 1 other
The bottom line
#Kenya's Court of Appeal dismissed burn victims' kerosene claims because they couldn't prove the fuel was bought from the defendant's station.
What this practically means
#Executive summary
#Key legal issues
#Scope of a second appeal
Only issues of law fall for determination on a second appeal under section 72 of the Civil Procedure Act
The Court reminded itself that as a second appeal it was confined to questions of law, citing Kitivo v Kitivo. Complaints about evaluation of evidence must therefore amount to an error of law to succeed, and mere dissatisfaction with the first appellate judge's re-evaluation of the evidence does not.
Duties of a first appellate court
A first appellate judge is entitled to re-evaluate the entire evidence and is not bound by the trial magistrate's findings, provided he bears in mind that he neither saw nor heard the witnesses
The Court adopted Selle v Associated Motor Boat Company Ltd on first-appeal principles and found the learned judge had expressly reminded himself of his duty and carefully re-evaluated the evidence, so there was no misevaluation, consideration of extraneous matters, or overstepping of first-appeal boundaries.
Burden of proof in negligence claims based on allegedly defective kerosene
The plaintiff bears the ordinary civil burden of proving purchase of the product from the defendant, unaided by any extra evidential burden
The Court held the judge imposed no burden beyond the ordinary civil burden: the appellants had to prove they purchased the kerosene from the second respondent and not from another source. They failed: the incidents were not reported to the respondents or the police and no demand letter was produced.
Application of res ipsa loquitur
The doctrine cannot be invoked until the plaintiff has proved the facts giving rise to the inference of negligence, including the link between plaintiff and defendant
The Court found no error in the judge's refusal to apply the doctrine: since purchase of the kerosene from the second respondent had not been proved on a balance of probabilities, no inference of negligence could be drawn, and the judge had properly distinguished the authorities relied on by the appellants.
Legal principles established
#- On a second appeal under section 72 of the Civil Procedure Act, only issues of law fall for consideration
- A plaintiff claiming damages from a kerosene vendor must first prove on a balance of probabilities that the kerosene was purchased from the defendant before res ipsa loquitur can be invoked
- Whoever asserts the existence of facts bears the burden of proving them under section 107(1) of the Evidence Act
Court orders
#- 1.Appeal dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Kisii
- H.C.C.C. No. 316 of 2006 (Appeal No. 309 of 2006)
- Jurisdiction invoked
- Second appeal under section 72 of the Civil Procedure Act, confined to issues of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naomi Kemunto v Total (k) Limited & 1 other", Case Analysis (2013). Civil Appeal No. 211 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/21/eng@2013-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.