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Court of AppealDismissedCivil Appeal No 27 of 2017· [2019] KECA 44 (KLR)

John Mbuta v Bosky Industries

Court of Appeal of Kenya
20 December 2019
EGE. M. GithinjiWKW. KaranjaMohamed Abdulahi WarsameM. Warsame
3,444 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that second appeals cannot re-litigate facts; two lower courts' factual findings stand unless shown to be baseless or perverse.

What this practically means

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Executive summary

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This was a second appeal by John Mbuta against the High Court (Sergon, J.) upholding the dismissal of his claim for injuries sustained on 6th September 1999 while ironing clothes for Bosky Industries, when a boiler valve burst and released hot steam. He alleged negligence and breach of statutory duty under the Factories Act, including failure to provide protective gear. The Principal Magistrate found he had not proved his case on a balance of probabilities and dismissed the suit; the High Court dismissed the first appeal. The Court of Appeal, coram Githinji, Karanja and Warsame, JJ.A, confined itself to matters of law under Section 72(1) of the Civil Procedure Act. It framed two issues: whether the High Court properly discharged its first appellate duty, and whether any issue fit for consideration remained. The Court found the learned Judge had re-evaluated the evidence and reached independent conclusions, and that the two courts below made concurrent findings of fact that the injuries resulted from the appellant's own negligence and that protective gear had been provided. Such findings bind a second appellate court absent perversity, misapprehension of evidence, or consideration of wrong principles, none of which was demonstrated. The appeal was dismissed with an order that each party bear its own costs. The judgment affirms the deference owed to concurrent factual findings on second appeal.

Key legal issues

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01

Whether the High Court properly discharged its duty as a first appellate court

Holding

The High Court went through the evidence in detail and arrived at an independent decision, as enjoined by law; ground 1 accordingly failed.

Reasoning

The Court found that the learned Judge noted the trial magistrate's reliance on the testimonies of DW1 and DW2, identified the findings on the boiler, the warning against hitting the valve, and the provision of equipment, and reached his own conclusion. There being no demonstration that the Judge considered extraneous matters or failed to consider relevant material, the first appellate duty was properly performed.

p. 4
02

Whether this Court could disturb the concurrent findings of fact of the two courts below

Holding

No; the concurrent findings that the injuries were caused by the appellant's own negligence and that protective gear had been provided bound this second appellate court.

Reasoning

Section 72(1) of the Civil Procedure Act restricts a second appeal to matters of law. The two courts below made concurrent factual findings that the appellant hit the boiler valve despite warnings and had been provided an overall. The appellant did not show the findings were not based on evidence, misapprehended the evidence, or were arrived at on wrong principles, so the Court exercised deference and would not interfere.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and is bound by concurrent findings of fact of the two lower courts unless such findings are shown not to be based on evidence or to be perverse.
  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and reach its own conclusions, giving reasons either way.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear its own costs
On appeal from
High Court of Kenya at Nairobi
H.C.C.A No. 141 of 2003
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act (second appeal on matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "John Mbuta v Bosky Industries", Case Analysis (2019). Civil Appeal No 27 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/44/eng@2019-12-20

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