Raphael N. Kiburi v Hussein Adendere [2013] KECA 494 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a Kshs 336,382 road-accident award because the High Court failed to properly re-examine all the evidence.
What this practically means
#Executive summary
#Key legal issues
#Scope of a second appeal
A second appeal is confined to matters of law; the Court will not interfere with findings of fact absent perversity or failure to consider relevant matters.
The Court restated the settled principle that on a second appeal only issues of law fall for determination. Interference with findings of fact is permitted only where the lower court considered matters it ought not to have, failed to consider relevant matters placed before it, or where the entire decision was perverse. However, whether the first appellate court properly re-evaluated the evidence is itself an issue of law.
Duty of the first appellate court to re-evaluate evidence
The High Court Judge failed to re-evaluate the evidence on record as required, and this failure was prejudicial to the appellant.
The Court found that the Judge misdirected himself in holding that the trial magistrate relied on the assessor's report, when her judgment expressly showed she did not, and failed to notice that PW3 only arrived at the scene after the collision. Had the Judge discharged the duty of reappraisal, he would have arrived at a different finding, so the judgment below could not stand.
Weight of evidence of a witness not at the scene
Evidence of a witness who came on the scene only after the collision could not be relied on to determine the cause of the accident.
PW3, the respondent's driver, arrived at the scene after the collision had taken place. The trial magistrate correctly declined to rely on his evidence to establish causation, and the High Court erred in law in faulting her for that, since the record showed the magistrate had not relied on the assessor's report made two years after the event either.
Legal principles established
#- 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; failure to do so is a misdirection that may vitiate its decision.
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree of Amin J dated 1st November 2001 set aside
- 3.Judgment and order dated 12th January 1999 of the trial court reinstated, so that the respondent's suit in the Chief Magistrate's court stands dismissed with costs
- 4.Appellant to have the costs of the appeal and the costs in the superior court
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raphael N. Kiburi v Hussein Adendere [2013] KECA 494 (KLR)", Case Analysis (2013). Civil Appeal No 271 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/494/eng@2013-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.