Alfred Iduvagwa Savatia v Nandi Tea Estates & Another

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2. The 1st respondent filed a statement of defence dated 14th December 2011 through the law firm of S.K. Kitur & Co. Advocates admitting that the appellant was its former employee but denied that he was entitled to the claimed amount, asserting that benefits under that scheme were only payable to the beneficiaries of an employee who suffered disability or died in service. According to the 1st respondent, the appellant was therefore not entitled to any benefits from the scheme as his employment was terminated on 12.9.2009. On 20 th December 2011, the law firm of Kalya & Co. Advocates filed a joint statement of defence for both respondents denying the claim along similar lines. 3. At the trial, the appellant testified that he instituted the suit as he was not paid money that he was supposed to be paid after he was terminated. His testimony was that the money he was supposed to be paid included retirement benefits from the contributory scheme, which he acknowledged was paid, but maintained that he was still owed some dues. 4. On its part, the 1st respondent called Bernard Lagat (DW1), the estate accountant, who confirmed the existence of a Group Life Assurance Scheme to which the 1st respondent paid premiums on behalf of its employees, but that the benefits could only accrue to an employee upon disability or the next of kin upon the death Page 3 of 10

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of the employee. Further, that there was no other ground upon which the Page 4 of 10

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sum assured was payable. The witness confirmed that the appellant was indeed paid his dues under the retirement benefits scheme and there was nothing due to him under any other scheme. 5. In the judgment delivered on 13 th May 2013, the trial magistrate found that the appellant had failed to prove that he was entitled to any benefits under the Group Life Assurance Scheme, highlighting that payment of claims would only arise where the policyholder died in employment. Consequently, the learned magistrate dismissed the suit with costs to the respondents. 6. The appellant contested the decision through Eldoret High Court Civil Appeal No. 154 of 2013 and, after reconsidering the record of appeal, the pleadings, the evidence adduced and the submissions by counsel, the Judge (G.K. Kimondo, J.) affirmed the decision of the trial magistrate holding that the Group Life Assurance Policy covered the life of the employee and benefits were only payable under the policy upon the death or disability of the employee during the subsistence of his employment. The learned Judge also held that there was no cogent evidence that the respondents owed the appellant Kshs. 615,630 or such other sum under the life assurance cover. The appeal was dismissed on 17th November 2015 with an order directing each party to bear their own costs. Page 5 of 10

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7. Undeterred, the appellant has now escalated the dispute to this Court by filing the memorandum of appeal dated 29th January 2020. Page 6 of 10

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Paraphrased, the five grounds upon which the appeal is premised are that the learned Judge erred by: basing his decision on falsehoods by the respondents; failing to consider that the respondents, being custodians of the contribution records, were obligated to produce them; failing to consider the evidence of DW1 that the premiums were met by the 1 st respondent; not considering the predicament of the appellant when making the decision; and, not setting a good precedent. 8. At the hearing of the appeal on 9 th June 2026, the appellant appeared in person whereas learned counsel Ms. Muresia represented the respondents. They opted to rely on their written submissions. The appellant’s submissions were undated while those of the respondents were dated 4th June 2026. 9. In his submissions, the appellant simply reiterated the contents of his pleadings. 10. In opposition to the appeal, the respondents argued that the appeal was incompetent as it did not raise questions of law but instead invited the Court to act as a court of first instance. Counsel adverted to section 72(1) of the Civil Procedure Act and submitted that the jurisdiction of this Court on a second appeal shall lie on grounds that the decision is contrary to the law or usage having the force of the law. The respondents point out that this principle has been settled in a long line of Page 7 of 10

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authorities, including Leting vs. Express (K) Page 8 of 10

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Limited & Another [2018] KECA 187 (KLR) and Kenya Breweries Ltd vs. Odoyo [2010] KECA 498 (KLR). 11. In further support of their argument that the appeal is improperly before this Court, the respondents asserted that the appellant’s contention that they relied on falsehoods and failed in their duty to produce contribution records are matters of fact. 12. Turning to the merits of the appeal, the respondents submitted that the burden of proof as per section 107 of the Evidence Act fell on the appellant, who never took steps to demand production of documents during the trial. They argued that, on their part, they produced an agreement that dislodged the appellant’s averment that he paid premiums for the policy. According to the respondents, the appellant actually conceded at the trial that the premiums were paid by the 1st respondent. 13. Responding to the appellant’s claim that the learned Judge failed to consider the testimony of DW1, the respondents asserted that it was a matter of fact and not a question of law. Additionally, the respondents submitted that DW1’s testimony confirmed that the 1st respondent paid the premiums, which fact was considered by the trial court and the first appellate court. They also submitted that the allegation by the appellant that the court failed to consider his predicament was not a point of law. Page 9 of 10

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14. In response to the appellant’s argument that the learned Judge failed to set a good precedent, the respondents contended that the point was without merit as it amounted to stating that the learned Judge committed an error of law by failing to agree with the appellant. They posited that the duty of a first appellate court is to re-evaluate the evidence and that was exactly what the learned Judge did. They prayed that the appeal be dismissed. 15. Upon scrutiny of the record of appeal, the memorandum of appeal, the submissions and the authorities relied upon in the appeal, it clearly emerges that the first issue that arises for our determination is whether the appeal raises points of law. 16. The duty of this Court in a second appeal has been extensively discussed in several decisions. For instance, in Leting vs. Express (K) Limited & Another (supra), it was held that: “This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina vs. Mugiria [1983] KLR 78, Kenya Breweries Ltd vs. Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. See also the English case of Martin vs. Glywed Distributors Ltd (ta MBS Fastenings) 1983 ICR 511 where in, it was held inter alia that, where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept Page 10 of 10

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the findings of fact of the lower Page 11 of 10

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court(s) and resist the temptation to treat findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.” 17. And, in Kenya Breweries Ltd vs. Odoyo (supra), it was opined that: “This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. In the case of Stephen Muriungi and another vs. Republic (1982-88) 1 KAR 360, Chesoni Acting JA (as he then was) said at page 366:“We would agree with the view expressed in the English case of Martin vs Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 that where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.”” 18. The appellant contends that the learned Judge erred in law by anchoring his decision on falsehoods and dishonesty of the respondents whose evidence was full of unauthentic statements and deliberate lies. By the very wording of this ground of appeal, it is clear that it is based on the facts that the learned Judge Page 12 of 10

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relied upon to make his decision. What the appellant seeks from us is to Page 13 of 10

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reanalyze the facts as agreed upon by the trial court and the first appellate court, and reach a different decision on those facts. Doing so would require us to descend into the area of operation reserved for those two courts. 19. Even assuming that the appellant’s argument is that there was an error because of reliance on contradictory evidence, such an argument cannot fly. The evidence adduced by the respondents, and which the two courts believed, was that the appellant’s claim could not succeed because he was claiming premiums paid by the 1st respondent to the 2nd respondent for a life cover for its employees in service. We therefore find this ground of appeal incompetent, and it fails. 20. As for the second issue, the appellant faulted the learned Judge for not considering that the respondents were the custodians of the contribution records and were obligated to produce them in evidence. On this issue, it is our considered view that the case belonged to the appellant and there was no duty or obligation on the respondents to produce the contribution records. We agree with the respondents, and the learned Judge, that the burden of proof being on the appellant, it was upon him to take the necessary steps to demand the production of the documents by the respondents in order to prove his case. There are various mechanisms provided in law to aid a party who desires to obtain Page 14 of 10

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evidence from the opposing Page 15 of 10

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party, one of them being section 22 of the Civil Procedure Act, which allows for issuance of orders of discovery. We therefore find no merit in the appellant’s attempt to blame the failure of his suit on the two courts below. 21. Regarding the appellant’s claim that the learned Judge erred by failing to consider admissions by the respondents’ witness, a perusal of the record of appeal reveals that the courts considered the testimony, which confirmed that the appellant was paid what was due to him and nothing remained to be paid to him. This argument therefore collapses. 22. On the remaining two grounds that the first appellate court did not consider the appellant’s predicament and failed to set a good precedent, we find that these are not points of law. A judgment is generated from the facts presented to the court by the parties and the applicable law. Those are the elements to be considered by the court, and in a civil case like the one before us, where the die is cast on a balance of probability, the predicament of a party does not count. Similarly, the emergence of a precedent from a particular case is dependent on the facts and the law presented to the court. In order to fault the learned Judge for failing to set a good precedent, the appellant ought to have brought out an error of law in the decision, which he has not done. Like the other grounds of appeal, these arguments are without merit. Page 16 of 10

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23. It follows that the appeal lacks merit for failure by the appellant to raise points of law or to point out any errors in the decision of the learned Judge. The record does indeed confirm that the trial court and the first appellate court clearly arrived at the correct decision based on the pleadings and the evidence that was before them. Accordingly, it is our finding that all the grounds of appeal are non- meritorious and we dismiss the appeal in its entirety. 24. As for the costs of the appeal, the general principle is that costs follow the event unless for good reason the court orders otherwise. In the circumstances of this appeal, we find no reason for departing from this principle. As such, the appellant shall meet the respondents’ costs for the appeal. 25. It is so ordered. Dated and delivered at Eldoret this 25th day of September 2026. M. GACHOKA C.Arb, FCIArb …………. ………………. JUDGE OF APPEAL W. KORIR …………………………. JUDGE OF APPEAL L. M. NDOLO …………………………. JUDGE OF APPEAL Page 17 of 10

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I certify that this is a True copy of the original Signed DEPUTY REGISTRAR Page 18 of 10

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