Muriithi & another v Ithiga (Civil Appeal 12 of 2014) [2016] KECA 821 (KLR)

The Court invoked Section 72(1) of the Civil Procedure Act and the classic formulation in Kenya Breweries Ltd v Godfrey Odoyo that a second appellate court must resist delving into matters of fact, confining itself to questions of law unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse. The Court then clarified that inadequate re-evaluation of evidence by the first appellate court, producing a wrong conclusion, itself constitutes a point of law within second-appeal jurisdiction.

The map was a public document under Section 79(1) of the Evidence Act, normally requiring a certified copy under Section 80. However, the original was in the custody of the second defendant, which refused to produce it despite a notice. Under Section 68(1)(a) of the Evidence Act, secondary evidence becomes admissible in those circumstances, so the magistrate was entitled to admit and rely on the map, and the High Court Judge erred in faulting its admission.

The Court found that the map corroborated the 1st appellant's evidence of original allocation and was corroborated by Council minutes of 10th December 1992 endorsing the transfer to the 2nd appellant. It also noted the absence of documents supporting the seller's title behind the respondent's 1975 sale agreement, and the inconsistency of the respondent buying in 1975 yet applying for allocation in 1980. These were germane issues the Judge failed to re-consider, so the appeal succeeded.