Selina Vukinu Ambe v Mdf-esa Kenya
The bottom line
#Kenya's Court of Appeal refused to overturn two lower courts that awarded a consultant only half her fee, confirming second appeals cannot re-examine facts.
What this practically means
#Executive summary
#Key legal issues
#Scope of the Court of Appeal's mandate on a second appeal
The Court's mandate is limited by Section 72 of the Civil Procedure Act; it will not disturb concurrent findings of fact unless they lack cogent evidential foundation.
Section 72(1)(a) confines second appeals to grounds that the decision is contrary to law. Relying on M'Riungu vs. Republic, the Court held the principles apply equally to civil second appeals. Having reviewed the email evidence of dissatisfaction with the appellant's report, the Court found the concurrent findings that the work was of disputed standard were supported by material and thus could not be interfered with.
Existence of a written contract
No written contract existed because the appellant declined to sign the prepared contract; she could not rely on its terms.
The appellant's own testimony - that she refused to sign because the contract provided for arbitration under Tanzanian law - supported the Judge's finding. Her acceptance in cross-examination that payment depended on the report being accepted undermined her claim to full payment. The High Court's conclusion that no written contract existed was found to be absolutely accurate and supported.
Effect of a consent judgment set aside on a party's own motion
A consent judgment set aside at the instigation of the appellant herself could not later form the basis of the judgment following the full trial she demanded.
The consent judgment of 16th February 2012 was set aside on 17th July 2012 at the appellant's own application, on the grounds that it omitted interest and she had rejected it. Having herself sought the setting aside and a full hearing, the appellant could not resuscitate the consent judgment as a ground of appeal.
Legal principles established
#- A second appellate court cannot interfere with concurrent findings of fact of the two courts below unless such findings are not based on any cogent evidence.
- On a second appeal, an appellate court whose right of appeal is confined to questions of law must accept the findings of fact of the lower courts and not treat findings of fact as holdings of law.
- On a first appeal, the High Court has a duty to re-hear the case, reconsider the materials and reach its own independent conclusion.
Court orders
#- 1.The appellant's appeal is dismissed
- 2.No order as to costs of the appeal, the respondent not having appeared
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.App. No. 256 of 2013
- Jurisdiction invoked
- Section 72(1)(a) of the Civil Procedure Act - second appeal on a question of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Selina Vukinu Ambe v Mdf-esa Kenya", Case Analysis (2019). Civil Appeal No. 348 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/243/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.