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Court of AppealPartially AllowedCivil Appeal No 271 of 2004· [2013] KECA 493 (KLR)

Raphael N. Kiburi v Hussein Adendere [2013] KECA 493 (KLR)

Court of Appeal of Kenya
5 July 2013
WKW. KaranjaWilliam OukoW. OukoFSF. Sichale
1,688 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a Kshs 336,000 accident claim because the High Court judge failed to properly re-evaluate the trial evidence before reversing the magistrate.

What this practically means

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Executive summary

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This is a second appeal in a road-traffic collision dispute arising from an accident on 30th October 1993 between the respondent's vehicle TZB 544 (parked off the road) and the appellant's vehicle KVL 799. The respondent claimed Kshs. 336,382.75 in repair charges and general damages for loss of use. The trial magistrate dismissed the suit, finding the claim not proved on a balance of probabilities. The High Court (Amin J) allowed the respondent's first appeal on 1st November 2001, holding that the magistrate had misdirected herself by relying on an assessor's report prepared over two years after the accident, and awarded the respondent the full claim. The Court of Appeal, per a single judgment of the court (Karanja, Ouko and Sichale JJ.A), allowed the appellant's second appeal. Reiterating that a second appeal is confined to issues of law, the court held that the first appellate judge failed in his duty to re-evaluate the entire evidence on record: he wrongly found the magistrate had relied on the assessor's report when her judgment expressly disavowed it, and failed to appreciate that PW3, the respondent's driver, only arrived after the collision and could not speak to causation. The court found this failure prejudicial, set aside the High Court judgment and decree, reinstated the trial court's judgment of 12th January 1999 dismissing the respondent's suit with costs, and awarded the appellant the costs of the appeal and of the superior court.

Key legal issues

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01

Scope of a second appeal

Holding

A second appeal is confined to matters of law; the Court of Appeal does not re-evaluate facts unless the first appellate court's approach was vitiated.

Reasoning

The court reiterated the settled principle that on a second appeal only issues of law arise, and interference with findings of fact is limited to cases where the first appellate court considered matters it should not have, ignored relevant matters, or reached a perverse conclusion. On a second appeal the court may nevertheless consider whether the first appellate court properly analysed and re-evaluated the evidence.

p. 3
02

Duty of the first appellate court to re-evaluate evidence

Holding

The High Court judge failed to re-evaluate the trial court's evidence, and this failure was prejudicial and a misdirection in law.

Reasoning

The court found the judge merely recited evidence, wrongly held that the magistrate relied on the assessor's report (she expressly did not), and overlooked that PW3 only came on the scene after the collision, so his evidence could not establish causation. Had the judge discharged his duty of re-appraisal, he would have reached a different finding.

p. 3
03

Reliance on hearsay evidence of absent witnesses

Holding

The trial magistrate correctly declined to rely on the evidence of PW3, who was not at the scene when the accident occurred.

Reasoning

PW3, the respondent's driver, only came on the scene after the collision had taken place, so his evidence could not determine the cause of the accident. The High Court erred in faulting the magistrate for failing to consider it, since the trial court's judgment showed she had properly discounted it.

p. 3

Legal principles established

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  • On a second appeal the Court of Appeal considers only issues of law and will not interfere with findings of fact unless the lower court considered matters it ought not to have, failed to consider relevant matters, or its decision was perverse.
  • A first appellate court has a duty to reappraise the entire evidence on record and make its own findings of fact, allowing for the fact that it did not see the witnesses testify.
  • The Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, a misapprehension of the evidence, or a demonstrably wrong principle.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of Amin J dated 1st November 2001 set aside
  3. 3.Judgment and order dated 12th January 1999 of the trial court reinstated, with the result that the respondent's suit in the Chief Magistrate's court stands dismissed with costs
  4. 4.Appellant awarded the costs of this appeal as well as the costs in the superior court

Authorities

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Cases cited (4)

  • Selle and Another vs Associated Motor Boat Company Limited & Others
    (1968) EA 123
  • Damiano Migwi V Timothy Maina Waitugi
    [2009] eKLR (Civil Appeal 335 of 2003)
  • Peters v Sunday Post Ltd
    [1959] EA 424
  • Mwangi v Wambugu
    [1984] KLR 453
On appeal from
High Court of Kenya at Nairobi
Nairobi High Court Civil Appeal No. 43 of 1999
Jurisdiction invoked
Second appeal to the Court of Appeal under its appellate jurisdiction, confined to issues of law

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, "Raphael N. Kiburi v Hussein Adendere [2013] KECA 493 (KLR)", Case Analysis (2013). Civil Appeal No 271 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/493/eng@2013-07-05

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