Gichimu Ngara v Thuo Nganga & another [2014] KECA 248 (KLR)

Section 72(1) limits a second appeal to grounds that the decision was contrary to law, failed to determine a material issue of law, or involved a substantial procedural error. The Court adopted the dictum in Kenya Breweries Ltd v Godfrey Odoyo that a second appeal court must resist the temptation of delving into matters of fact, unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse. The finding that the appellant's own land was 0.4 acres and the surplus belonged to the parties' father was one of fact based on evidence.

The Court reviewed the High Court judgment and found it demonstrated a full understanding of the proceedings, sampling its analysis of the evidence on the sale agreement, the witnesses' testimony on the father's ownership, the pleadings point and limitation. There is no fixed model for re-evaluation of evidence; the judgment analysed the evidence from its analysis of the sale agreement through the witnesses' testimony before agreeing with the trial court, which sufficed.

The appellant was not shown to have identified any relief granted that was not sought. The trial magistrate awarded the respondents less land than prayed for, avoiding an unjust decree by considering the surrounding circumstances and evidence, and the High Court held the act complained of was favourable to the appellant. Nothing turned on the discrepancy between 3 acres and 1.21 hectares, the claim for 7.4 acres being a wrong conversion.

The High Court held that the respondents' action was to enforce a trust, and that the cause of action accrued when the appellant refused their 1996 demand to give them their share of the suit land; that was when the trust was breached. The action was therefore brought in time. This finding was part of the High Court's evaluation which the Court of Appeal found proper.