RICHARD SAIDI ………….……. vs BROWN AURA KHAYINGA [1983] KECA 126 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot re-argue facts in a second appeal, and your appeal fails if the record lacks the lower court's decree.
What this practically means
#Executive summary
#Key legal issues
#Scope of a second appeal under section 72(1) of the Civil Procedure Act
The second appeal lies only on grounds that the decision is contrary to law, failed to determine a material issue of law or usage having the force of law, or on a substantial procedural defect; matters of fact cannot be raised (section 71A).
The court set out the statutory grounds for second appeals and held that of the appellant's eighteen grounds, only the quantum/proof point and the summary-rejection point fell within section 72(1)(a) and (c); all other matters were questions of fact barred on second appeal.
Competence of the appeal for want of the decree appealed from
The appeal was incompetent because the record did not include the decree of the High Court appealed from, contrary to rule 85(1) of the Court of Appeal Rules, but the court dealt with the points raised because the parties were unrepresented.
The court invoked its own prior decisions on the requirement that the decree be included in the record. Although the omission rendered the appeal incompetent, the court exercised indulgence towards unrepresented lay parties and considered the substantive law points before dismissing the appeal with costs.
Summary rejection of a first appeal under section 79B
The High Court judge was entitled to reject the first appeal summarily, but in a first appeal questioning the proof of a counterclaim, the quantum claimed and the proof of the items should have been scrutinised; the discrepancy between Kshs 3,093 awarded and Kshs 2,743 claimed meant there were grounds for interfering with the damages award.
The court perused the material before the judge and concluded the summary rejection was broadly right. However, since the first appeal specifically questioned proof of the counterclaim, and the counterclaim was only for Kshs 2,743 while Kshs 3,093 was awarded, the counterclaim should not have been wholly rejected summarily; a correction under section 99 was suggested.
Legal principles established
#- A second appeal to the Court of Appeal from a decision passed in appeal lies only on grounds of law or substantial procedural defect, not on matters of fact.
- An appeal to the Court of Appeal is incompetent if the record does not include the decree of the court appealed from.
- A summary rejection under section 79B requires the judge to peruse the appeal material and be satisfied there is no sufficient ground for interfering with the decree or order appealed against.
Court orders
#- 1.The appeal is dismissed with costs
- 2.A suggestion that the appellant apply on notice under section 99 of the Civil Procedure Act to the present resident magistrate, Kakamega, to correct the figure Kshs 3,093 to Kshs 2,743 in the magistrate's judgment
- On appeal from
- High Court of Kenya at Kakamega
- Civil Appeal No. 10 of 1983
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal from a decision passed in appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "RICHARD SAIDI ………….……. vs BROWN AURA KHAYINGA [1983] KECA 126 (KLR)", Case Analysis (1983). Civil Appeal No. 20 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/126/eng@1983-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.