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Court of AppealDismissedCivil Appeal No. 166 of 2012· [2014] KECA 754 (KLR)

Rael Mwonjia Gichunge & another v Faud Mohammed Abdulla [2014] KECA 754 (KLR)

Court of Appeal
22 January 2014
AVAlnashir VisramMartha Karambu KoomeMartha KoomeOTOtieno-Odek
2,241 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that second appeals only address legal questions, and whoever claims forgery must prove it.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nyeri arising from a dispute over the sale of a motor vehicle (KAU 009 S Land Rover pick-up) valued at Ksh. 150,000. The respondent claimed he bought the vehicle from the appellants under a written sale agreement dated 1st November 2006; the appellants insisted the agreement was a forgery. The Chief Magistrate's Court at Meru entered judgment for the respondent on a balance of probabilities, and Kasango J dismissed the appellants' first appeal, finding the sale agreement was not forged and crediting the testimony of the advocate who attested the agreement and witnessed payment. On second appeal, the Court of Appeal (Visram, Koome and Otieno-Odek, JJ.A) in a single judgment of the court confined itself to points of law under Section 72 of the Civil Procedure Act. It held that the two courts below had made concurrent findings of fact that the appellants sold the vehicle, findings it saw no reason to upset. On the contradictory handwriting expert reports, the Court held that where the reports cancel each other out, the party alleging forgery bears the legal burden of proving it, and the appellants had not discharged that burden. The appeal was dismissed with costs.

Key legal issues

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01

Scope of a second appeal under Section 72 of the Civil Procedure Act

Holding

The Court is confined to points of law and will not interfere with concurrent findings of fact absent a showing that the lower courts considered matters they should not have, or failed to consider matters they should have.

Reasoning

Relying on Section 72 of the Civil Procedure Act and prior authority, the Court held that the 21 grounds of appeal, when collapsed, raised only issues of fact. Because both courts below made concurrent findings that the sale agreement was genuine and the vehicle sold, the Court had no basis to disturb those findings on second appeal.

p. 4
02

Burden of proof where contradictory handwriting expert reports cancel each other out

Holding

If contradictory expert reports are given zero evidential weight, the party alleging forgery must prove it; the appellants failed to discharge that burden on a balance of probabilities.

Reasoning

Both parties produced handwriting experts with contradictory conclusions. The Court reasoned that where the reports cancel each other, the evidential question reduces to who bears the burden of proving forgery. As the appellants alleged forgery, the burden lay on them, and they did not discharge it, particularly as their own expert did not say any signature was forged.

p. 4

Legal principles established

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  • On a second appeal the Court of Appeal confines itself to matters of law and will not disturb concurrent findings of fact of the two courts below.
  • Where two contradictory handwriting expert reports cancel each other out, the party alleging forgery bears the legal burden of proving it on a balance of probabilities.
  • An appellate court will not lightly differ from the findings of fact of a trial judge who had the benefit of seeing and hearing the witnesses.

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Civil Procedure ActSection 72

Cases cited (7)

  • Asira – v- R
    (1986) KLR 227
  • Jabane – vs- Olenja
    [1986] KLR 661, 664
  • Ephantus Mwangi vs- Duncan Mwangi Wambugu
    (1982-88) 1 KAR 278
  • Mwanasokoni vs. Kenya Bus Services
    (1982-88) 1 KAR 870
  • Douglas Mbugua Mungai -vs- Harrison Munyi
    Civil Application No. Nai. 167 of 2010
  • Stephen Boro Gitiha - vs- Family Finance Building Society & 3 Others
    Civil Application No. Nai. 263 of 2009
  • Kenya Breweries Limited -vs- Godfrey Odoyo
    Civil Appeal No. 127 of 2007
On appeal from
High Court of Kenya at Meru
Meru HCC Appeal No. 17 of 2009
Jurisdiction invoked
Section 72 of the Civil Procedure Act (second appeal lying to the Court of Appeal from every decree passed in appeal by the High Court on grounds of law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Rael Mwonjia Gichunge & another v Faud Mohammed Abdulla [2014] KECA 754 (KLR)", Case Analysis (2014). Civil Appeal No. 166 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/754/eng@2014-01-22

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