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Court of AppealDismissedCivil Appeal 145 of 2002

Johnson Ndegwa Kanyuira & 3 others v Nyambura Maina & 3 others [2006] KECA 68 (KLR)

Court of Appeal of Kenya
3 November 2006
1,963 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed a women's group owned an intercepted Kshs 50,000 cheque, rejecting a copycat family group's claim to the money.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Bosire, O'Kubasu and Deverell, JJA) dismissed a second appeal against the High Court's decision affirming a Resident Magistrate's judgment awarding the respondents, officials of Mungi Nyakinyua Poultry Women Group, Kshs. 50,000 plus interest and damages over a donor-agency cheque intercepted by the appellants' similarly named family group. The cheque, granted through the Kenya National Farmers Union for the respondents' group in about 1988, was instead received by the appellants, whose group comprised the 1st appellant's wife, daughter and daughter-in-law and whose 1st appellant was a former KNFU employee. The trial Magistrate found the group was formed in haste with fictitious members to intercept the cheque. The Court of Appeal restated the Selle v Associated Motor Boat Company principles on the retrial nature of appeals on fact, and censured Juma, J for failing to demonstrate scrutiny of the evidence on first appeal, holding it insufficient to state that evidence was considered without showing which evidence justified the decision. Nevertheless, the Court found the superior court's decision rested on evidence before it - including uncontradicted KNFU testimony that the cheque was made for the respondents' group - and that the cheque's failure to bear the group's full names was immaterial as the names used were sufficiently descriptive. The appeal was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the first appeal court (Juma, J) gave due scrutiny to the evidence as required on a first appeal
  2. 2.Which of the two women's groups was entitled to the disputed cheque of Kshs. 50,000
  3. 3.Whether the cheque, though not drawn in the full names of the respondents' group, was sufficiently descriptive of that group

Key legal issues

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01

Duty of the first appellate court in evaluating evidence

Holding

Juma, J failed to give due scrutiny to the evidence by merely endorsing the trial Magistrate's decision without demonstrating his own evaluation; however, this did not warrant interference because the decision was supported by the evidence.

Reasoning

The Court of Appeal adopted the Selle principles: a first appeal is by way of retrial, requiring the appellate court to reconsider the evidence and draw its own conclusions while making allowance for not having seen or heard witnesses. The Judge's very short judgment merely stated satisfaction without showing which evidence he considered. Nonetheless, the evidence - including KNFU employee testimony that the cheque was made for the respondents' group - supported the outcome.

p. 3
02

Entitlement to the disputed cheque

Holding

The cheque was made in favour of the respondents' group; the appellants' family group was formed to intercept it.

Reasoning

The trial court made findings of fact that the appellants' group was formed in haste around the time the cheque was due, contained fictitious and unaware committee members, and comprised only the 1st appellant's family. The 1st appellant, a former KNFU employee, used inside knowledge to intercept the cheque. PW2, a KNFU employee, testified the cheque was for the respondents' group and this was uncontradicted.

p. 4
03

Effect of the cheque not bearing the full names of the respondents' group

Holding

The omission was immaterial because the names used were sufficiently descriptive of the respondents' group.

Reasoning

The appellants argued that no cheque was ever made in favour of the respondents' group since its full name did not appear on the cheque. The Court held that the names on the cheque sufficiently identified the respondents' group, which had long been known to the appellants, the local Assistant Chief and KNFU, and that the discrepancy was 'neither here nor there'.

p. 4

Legal principles established

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  • On a first appeal, a court must itself reconsider and evaluate the evidence and demonstrate which evidence it considered; it is not enough merely to assert that the evidence was considered when affirming a lower court's decision.
  • The principles in Selle v Associated Motor Boat Company on the approach to a retrial-style appeal apply with equal force to a first appeal to the High Court.

Court orders

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  1. 1.The appellants' appeal to the Court of Appeal is dismissed
  2. 2.The appellants shall pay the costs of the appeal

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nyeri
H.C.C.A No. 38 of 1997
Jurisdiction invoked
Second appeal to the Court of Appeal under the appellate structure of the Civil Procedure Act (stated as an appeal from the High Court's decision on first appeal)

Relief refused

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Setting aside the judgment of the High Court (Juma, J) which had dismissed the first appeal

The superior court's decision was based on evidence before it and there was no basis for interference

p. 4

Costs

The appeal was dismissed with costs to the respondents.

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 the result, notwithstanding what we said about Juma J’s handling of the appellants’ first appeal, we find no basis for interfering with the superior court’s decision. The decision was based on evidence which was before it as we have endeavored to demonstrate, and in the result we dismiss the appellants’ appeal with costs.
p. 4Final orders - dismissal of the second appeal
It is not enough to state that one has considered the evidence without showing which evidence he has considered to justify a decision the court has come to or as the basis for affirming the decision of a lower court.
p. 3Duty of a first appellate court to demonstrate evaluation of evidence
Consequently the respondent was the group for which the cheque was made. They had a right to it.
p. 4Entitlement to the disputed cheque

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Johnson Ndegwa Kanyuira & 3 others v Nyambura Maina & 3 others [2006] KECA 68 (KLR)", Case Analysis (2006). Civil Appeal 145 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/68/eng@2006-11-03

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