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Court of AppealDismissedCivil Appeal No. 38 of 2002· [2013] KECA 472 (KLR)

Susan Munyi v Keshar Shiani [2013] KECA 472 (KLR)

Court of Appeal of Kenya
5 July 2013
KKKihara Kariuki, P.William OukoOuko, W.KIKiage, P. O.
2,978 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a ruling that Kshs. 1 million was a loan, confirming that trial judges' findings of fact are rarely overturned on appeal.

What this practically means

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Executive summary

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Two advocates of the High Court, formerly close personal and professional friends, fell out over a payment of Kshs. 1 million made by the respondent to the appellant on 17th October 1996 by bankers cheque. The respondent sued in the High Court, pleading that the sum was a loan to be repaid in monthly instalments of Kshs. 100,000 with interest at market rates on default; only one instalment was paid, leaving a balance. The appellant denied the loan, asserting the payment was for services rendered and settlement of monies the respondent owed her. The Commissioner of Assize (Ransley CA) believed the respondent, finding the Kshs. 1 million was a loan, awarded Kshs. 900,000 with interest at court rates from filing of suit, and granted only half the costs since the appellant had succeeded on the question of interest. The appellant appealed on nineteen grounds, argued as one: that the trial court erred in disbelieving her version. The Court of Appeal, per a single judgment of the court (Kihara Kariuki PCA, Ouko and Kiage JJA), restated the duty of a first appellate court to evaluate the evidence afresh but to be slow to disturb trial court factual findings and credibility assessments, citing Makube v Nyamiro, Kiruga v Kiruga, Peters v Sunday Post, Watt v Thomas and Ogot v Murithi. It found contradictions in the appellant's testimony, no fee notes, no counterclaim or set-off, and a defence of mere denial, which per Mugunga General Stores v Pepco Distributors is no defence. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Duty of a first appellate court on findings of fact

Holding

The Court of Appeal must analyze and evaluate the evidence afresh and reach its own conclusions, but will be slow to disturb factual findings and credibility assessments of the trial court that saw and heard the witnesses.

Reasoning

The court restated that the first appellate court must approach the whole evidence from a fresh perspective and arrive at independent conclusions. However, unlike the trial court, it works from the cold record and lacks the advantage of observing demeanor. It therefore accords due respect to trial court factual findings and interferes only where the finding is plainly wrong, based on no evidence, on a misapprehension of the evidence, or on wrong principles. This is the settled position in Makube v Nyamiro, Kiruga v Kiruga, Peters v Sunday Post and Ogot v Murithi.

p. 4
02

Whether the trial court's credibility finding on the competing narratives could stand

Holding

Yes. The Commissioner of Assize was entitled to prefer the respondent's account that the Kshs. 1 million was a loan, given contradictions in the appellant's testimony, her failure to issue fee notes, and her failure to counterclaim or set off.

Reasoning

The court noted the trial court had recorded specific questions and answers under cross-examination revealing contradictions and inconsistencies in the appellant's testimony. The appellant's failure to issue fee notes for the alleged services, her unexplained payment of Kshs. 100,000 consistent with part repayment, and the absence of a counterclaim or set-off all supported the trial court's preference. Where a case is nearly balanced on word against word, the trial judge's choice should not be disturbed.

p. 5
03

Sufficiency of a bare denial as a defence to a money claim

Holding

A defence of mere denial without a reason why the debt is not owed is not a good defence; the appellant's defence was evasive and obfuscatory.

Reasoning

Adopting Mugunga General Stores v Pepco Distributors, the court held that a defendant must show some reason why the money is not owed - absence of contract, failure of performance, or payment proved. The appellant's defence and amended defence, with shifting alternative pleas about services rendered and monies advanced, were found to be a deliberate effort to obfuscate rather than a genuine bona fide defence to a clear debt.

p. 5

Legal principles established

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  • An appellate court will not interfere with a finding of fact by a trial court unless the finding is based on no evidence, on a misapprehension of the evidence, or the judge demonstrably acted on wrong principles
  • Where the evidence is evenly balanced, the trial judge's decision, having enjoyed advantages unavailable to the appellate court, ought not to be disturbed
  • A mere denial is not a sufficient defence to a claim for a debt; the defendant must give some reason why the money is not owed

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)

  • Makube v Nyamiro
    [1983] KLR 403
  • Kiruga v Kiruga & Another
    [1988] eKLR
  • Peters v Sunday Post
    [1958] EA 424
  • Watt v Thomas
    [1947] 1 All ER 582
  • Ogot v Murithi
    [1985] KLR 359
  • Mugunga General Stores v Pepco Distributors Ltd
    [1986] LLR 5111 (CAK)
On appeal from
High Court of Kenya at Nairobi
HCCC No. 1162 of 1999
Jurisdiction invoked
First appellate jurisdiction over the High Court (the court describes itself as 'a first appellate court')

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Susan Munyi v Keshar Shiani [2013] KECA 472 (KLR)", Case Analysis (2013). Civil Appeal No. 38 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/472/eng@2013-07-05

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