Nandwa v CFC Stanbic Bank Limited

Court of Appeal

25 March 2022

PKP.O Kiage MNMumbi Ngugi FTF. Tuiyott

1,395 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed that arguments you never raised in the High Court are too late on second appeal.

What this practically means

Executive summary

This was a second appeal by Mordekai Mwanga Nandwa against the judgment of the High Court at Kakamega (Njagi, J) dated 5th October 2017, which had dismissed his first appeal from the Chief Magistrate's Court at Kakamega. The underlying dispute arose from a Hire Purchase Agreement under which CFC Stanbic Bank financed the appellant's purchase of a Mitsubishi Pickup. The appellant alleged he had overpaid and that the bank unlawfully repossessed the vehicle; he sought a permanent injunction, a refund, and taking of accounts. The bank counterclaimed for Ksh. 499,329.80 plus interest, alleging irregular and late payments attracted default interest. The Magistrate's Court dismissed the suit and allowed the counterclaim with costs. Before the Court of Appeal (Kisumu: Kiage, Mumbi Ngugi and Tuiyott, JJA), the appellant argued principally that although the High Court found he was not liable for 'hire charges' of Ksh. 248,044, it failed to deduct them from the sum due. The court, per Kiage, JA, reaffirmed that a second appeal is confined to matters of law, adopting the Supreme Court's characterization of 'matters of law' in Munya v Kithinji. It held that the appellant, having not challenged the bank's counter-claim schedule at the High Court, could not do so on appeal, and found no misapprehension of facts or wrong principle in the judgment below. The appeal was dismissed with costs, the concurrence of Mumbi Ngugi and Tuiyott, JJA being recorded.

Key legal issues

Scope of a second appeal

Holding

The second appellate court is confined to matters of law and will not delve into matters of fact.

Reasoning

The court adopted the settled position that a second appeal is confined to questions of law, citing Onyango Otieno, JA in Kenya Breweries Ltd v Godfrey Odoyo and the Supreme Court's three-element characterization of 'matters of law' in Munya v Kithinji: technical, practical and evidentiary elements. Factual conclusions may only be disturbed under the evidentiary element where based on no evidence.

p. 2

Whether the counter-claimed amount could be challenged on appeal

Holding

Having not challenged the counter-claim schedule at the High Court, the appellant could not do so on second appeal.

Reasoning

The High Court had found the schedule showing how the counter-claim of Ksh. 499,329.80 was arrived at was not challenged, deducting only the Ksh. 25,000 the respondent had paid. The Court of Appeal held there was no misapprehension of facts or wrong principle, and the appellant could not raise the 'hire charges' point for the first time on appeal.

p. 3

Legal principles established

On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles.
A party who did not dispute a claim or schedule at the High Court cannot challenge it for the first time on appeal.
Factual conclusions may be interfered with on second appeal as a matter of law under the evidentiary element only if based on no evidence.

Court orders

1.Appeal dismissed with costs to the respondent
2.Judgment of the High Court (Njagi, J) dated 5th October 2017 dismissing the appellant's suit and allowing the counterclaim as reduced by Ksh. 25,000 affirmed

Authorities

Cases cited (4)

Maina -vs- Mugira
[1983] KLR 78
That on a second appeal the court should confine itself to matters of law only
Kenya Breweries Ltd -vs- Godfrey Odoyo
[2010] eKLR
Dicta of Onyango Otieno, JA on the limits of a second appeal to matters of law
Mrao Ltd versus First American Bank of Kenya Ltd & 2 others
[2003] KLR 125
Cited within the Kenya Breweries passage on the confines of a second appeal
Gatirau Peter Munya -vs- Dickson Mwenda Kithinji & 3 Others
[2014] eKLR
The three elements constituting 'matters of law': technical, practical and evidentiary

On appeal from: High Court of Kenya at Kakamega; H.C.C.C. No. 114 of 2011
Jurisdiction invoked: Second appeal to the Court of Appeal under the Constitution and the Court of Appeal's appellate jurisdiction over the High Court (matters of law only)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Nandwa v CFC Stanbic Bank Limited", Case Analysis (2022). Civil Appeal 133 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/488/eng@2022-03-25

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