Samson Mbui Obadiah v David Mithamo Gatitu [2014] KECA 766 (KLR)
The bottom line
#The Court of Appeal dismissed a Kshs. 314,000 debt claim because the lender failed to produce key documents and witnesses to prove the loan agreement.
What this practically means
#Executive summary
#Key legal issues
#Whether the out-of-time application to strike out the appeal could be entertained under Rule 104(b)
The application could not be entertained without leave; the respondent gave no explanation for the delay in applying under Rule 84 and failed to demonstrate that he was reasonably unable to apply within the requisite 30 days.
Rule 84 requires a strike-out application to be made within thirty days of service of the Notice of Appeal or Record of Appeal. Rule 104(b) bars a respondent from raising competence objections at the hearing without leave. The purpose of the leave requirement is to protect the court's process from abuse. The respondent offered no explanation for the delay, so leave was refused and the objection was not entertained.
Whether the trial magistrate's decision was a valid judgment under Order 21 rule 4 of the Civil Procedure Rules
The Court concurred with the High Court that the trial magistrate's decision fell short of a judgment, as it merely summarised the evidence in three sentences without setting out the points for determination, the decision thereon, or reasons.
Order 21 rule 4 of the Civil Procedure Rules requires a judgment in a defended suit to contain a concise statement of the case, the points for determination, the decision thereon and the reasons. The trial magistrate simply described the case as open and shut, found the claim proven on a balance of probabilities and entered judgment, without commenting on the evidence or raising any issues, and so failed to comply with the rule.
Whether the appellant proved his claim to the required standard
The appellant did not prove his case on a balance of probabilities; he failed to call the witnesses to the loan agreement, failed to produce the loan agreement, failed to call the advocate who prepared the undertaking agreement despite an allegation of forgery, and his evidence was contradicted by his own witness on the issue of a receipt.
The respondent denied both the loan and the execution of the undertaking agreement, alleging forgery. The appellant did not call the alleged witnesses to the loan agreement or produce the loan agreement itself. Where forgery is alleged, corroborative evidence from the advocate who prepared and witnessed the document was imperative. Further, the contradiction between the appellant and PW2 on whether a receipt was issued undermined their credibility. The learned Judge therefore correctly re-evaluated the evidence.
The proper scope of a second appeal
The Court is confined to matters of law unless it is shown that the two lower courts considered matters they should not have, or failed to consider matters they should have.
Relying on Kenya Breweries Limited v Godfrey Odoyo, the Court reiterated the settled principle that on a second appeal it must resist the temptation of delving into matters of fact. An exception exists where both lower courts considered matters they should not have, or omitted matters they should have considered, or where the entire decision is perverse. Within that framework, the Court found the Judge had correctly re-evaluated the evidence.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact unless the two lower courts considered matters they should not have, or failed to consider matters they should have.
- A judgment in a defended suit must contain a concise statement of the case, the points for determination, the decision thereon and the reasons for that decision under Order 21 rule 4 of the Civil Procedure Rules; a mere summary of evidence with a conclusory statement is not a judgment.
- A respondent seeking leave to raise a competence objection under Rule 104(b) out of time must demonstrate that he was reasonably unable to make the Rule 84 application within 30 days; mere delay without explanation forfeits the objection.
- A plaintiff who alleges a debt evidenced by an agreement denied by the defendant must adduce corroborative evidence, including calling the advocate who prepared and witnessed the agreement, to discharge the burden of proof on a balance of probabilities.
Court orders
#- 1.The respondent's application to strike out the appeal is declined
- 2.The appeal is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Embu
- H.C.C.A No. 61 of 2011
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Court of Appeal Rules, confined to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- M'nkiria Petkay Shen Miriti v Ragwa Samuel Mbae & 2 others [2014] KECA 493 (KLR)[2014] KECA 493 (KLR)8 Apr 2014
- M'nkiria Petkay Shen Miriti v Ragwa Samuel Mbae & 2 others [2014] KECA 698 (KLR)[2014] KECA 698 (KLR)8 Apr 2014applied
Cite this brief
#Cite this brief
Caselaw, "Samson Mbui Obadiah v David Mithamo Gatitu [2014] KECA 766 (KLR)", Case Analysis (2014). Civil Appeal No. 3 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/766/eng@2014-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.