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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal 660 of 2019

Kimweli v Kimweli

Court of Appeal
16 December 2022
4,781 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal from the Environment and Land Court at Machakos (Angote, J), which had declared that the appellant held shares in Malili Ranch Limited and two parcels of land allocated in 2007 in trust for the respondent, his stepmother, who claimed she gave him Kshs 5,080/= in 1985 to purchase the shares on her behalf. The appellant raised six grounds, principally that the suit was statute barred under section 7 of the Limitation of Actions Act, a point not raised at trial, and that the trial judge failed to evaluate the evidence properly. The Court of Appeal restated the duties of a first appellate court and the principles governing new points of law on appeal, citing Securicor and Wachira. Although the limitation ground was unpleaded and unaddressed below, the Court entertained and rejected it: the suit, filed in 2011, was within twelve years of the 2007 allocation, and in any event a claim premised on trust is not subject to limitation of actions. On the merits, the Court found the respondent had proved on a balance of probabilities that the appellant bought the shares with her money and registered them in his own name; his contradictory testimony and his implausible agreement to refund the purchase price plus dividends undermined his credibility. The Court also held the trial judge correctly considered all evidence and submissions. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit was statute barred by virtue of section 7 of the Limitation of Actions Act, a point raised for the first time on appeal
  2. 2.Whether the respondent proved her case against the appellant on a balance of probabilities
  3. 3.Whether the learned judge considered all the evidence and submissions presented by the parties

Key legal issues

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01

Whether the limitation point could be raised for the first time on appeal

Holding

The Court entertained the point but rejected it on the merits: the suit, filed in 2011 within twelve years of the 2007 allocation, was not statute barred, and a claim premised on trust is not subject to limitation.

Reasoning

The ground was not pleaded, no evidence was led on it, and the trial judge did not pronounce himself on it. The Court applied the Securicor and Wachira principles on new points on appeal, then held on the record that twelve years had not lapsed since the 2007 allocation of the parcels, and that a trust claim is not subject to limitation of actions.

p. 5
02

Whether the respondent proved her trust claim on a balance of probabilities

Holding

Yes. The evidence established that the appellant received the respondent's money in 1985 to purchase shares on her behalf and registered them in his own name; his explanation for agreeing to refund the money plus dividends was implausible and not credible.

Reasoning

The Court re-evaluated the record, noting the appellant's contradictory testimony on when the respondent's son fell sick, his written admission of April 5, 2010, and the elders' minutes showing he agreed to refund the purchase price plus dividends. His version did not dislodge the respondent's account, so her evidence carried the day on a balance of probabilities.

p. 7
03

Whether the trial judge failed to consider all evidence and submissions

Holding

No. The learned judge correctly considered all the evidence and submissions and correctly applied the facts to the law.

Reasoning

The Court held that a judgment need not embody all evidence and submissions like a transcript; the test is whether a material fact or submission was omitted or left unaddressed, amounting to a misdirection sufficiently material to justify interference. On juxtaposing the evidence and submissions against the judgment, no such misdirection was found.

Legal principles established

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  • A first appellate court must re-evaluate the evidence and arrive at its own independent judgment, bearing in mind it did not see or hear the witnesses firsthand.
  • A new point of law may be taken on appeal only sparingly, where all evidence is on record, no disputes of fact arise, and the point is not at variance with the case decided below.
  • A claim premised on trust is not subject to the limitation of actions.
  • A plaintiff must prove his case on a balance of probabilities; a court may weigh only proved facts and may not speculate on evidence never adduced.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Environment and Land Court at Machakos
ELC No. 119 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction

Relief refused

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Setting aside the trial court's judgment and substituting a judgment dismissing the respondent's claim in its entirety with costs

The appeal was found to be without merit; the trial judge correctly evaluated the evidence and the respondent proved her case on a balance of probabilities

Costs

The appeal was dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In summation, we find and hold that this appeal is without merit. We dismiss it with costs to the respondent. It is so ordered.
Final orders - dismissal of the appeal
A claim premised on trust cannot be subject to limitation of actions, so the suit was not statute barred.
p. 5Limitation and trust claims
A first appellate court is the final court of fact ordinarily and, therefore, a litigant is entitled to a full, fair, and independent consideration of the evidence.
Duty of a first appellate court
The overriding fear is to avoid prejudicing a party who is made to meet an entirely different case late in the day at the appeal stage without the opportunity of adducing evidence
p. 4New points of law on appeal
on a balance of probabilities, the respondent's evidence carried the day.
p. 7Standard of proof discharged by respondent

Issues in the judgment

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minor

Inconsistent dating of the elders' letter within the judgment

minor

Inconsistent refund amounts referred to (Kshs 10,400/= and Kshs 10,480/=)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kimweli v Kimweli", Case Analysis (2022). Civil Appeal 660 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1394/eng@2022-12-16

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