Naomi Kemunto v Total (k) Limited & 1 other
The bottom line
#The Court of Appeal dismissed kerosene burn victims' claims because they could not prove they bought the fuel from the defendant's service station.
What this practically means
#Executive summary
#Key legal issues
#Re-evaluation of evidence by a first appellate court
The learned judge properly reminded himself of the duty of a first appellate court, cited the correct principles, and was entitled to re-evaluate the entire evidence; no error of law was shown.
The High Court judge cited the principles in Selle v Associated Motor Boat Company Ltd on the duty of a first appellate court to reconsider the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses. The Court of Appeal found nothing in his reconsideration to justify complaints of mis-evaluation, consideration of extraneous matters, or overstepping the boundaries of a first appellate court.
Burden of proof in a claim based on allegedly contaminated kerosene
The ordinary civil burden under section 107(1) of the Evidence Act required the appellants to prove purchase of the kerosene from the second respondent and not from any other source; they had failed to do so.
The learned judge correctly held that the appellants had to prove purchase of the kerosene from the second respondent. The incidents were not reported to the respondents or the police after the explosions, and no demand letter was produced. Section 107(1) of the Evidence Act obliges whoever asserts the existence of facts to prove them, and no extra burden was imposed.
Application of the doctrine of res ipsa loquitur
Res ipsa loquitur could not apply because the foundational facts, particularly purchase of the kerosene from the second respondent and the link between the parties, were not proved.
The learned judge found that the doctrine could only be relied upon upon proof that the kerosene had been purchased from the second respondent, and that a link between the appellants and the respondent had to be established or admitted. Since purchase was not proved on a balance of probabilities, no inference of negligence could be drawn. Several authorities on the doctrine were considered and distinguished.
Legal principles established
#- On a second appeal under section 72 of the Civil Procedure Act, only issues of law fall for consideration.
- A first appellate court must reconsider and evaluate the evidence itself while making due allowance for not having seen or heard the witnesses, and is not bound by the trial court's findings of fact.
- A plaintiff who asserts that defective kerosene purchased from a particular dealer caused injury bears the burden of proving purchase from that dealer and not from any other source.
- The doctrine of res ipsa loquitur cannot be invoked until the plaintiff first proves the facts, including the link between the defendant and the injury, which give rise to the inference of negligence.
Court orders
#- 1.Appeal dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Kisii
- H.C.C.C. No. 316 of 2006 (appeal from consolidated High Court Appeals Nos. 308, 309, 310, 315, 316 and 318 all of 2006, heard in Appeal No. 309 of 2006)
- Jurisdiction invoked
- Second appeal under section 72 of the Civil Procedure Act, in which only issues of law fall for consideration
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joram Saidi Wayo & 1 other v John Bwire[2025] KECA 866 (KLR)7 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Naomi Kemunto v Total (k) Limited & 1 other", Case Analysis (2013). Civil Appeal 211 of 2008 (one of consolidated Civil Appeals Nos. 207, 208, 209, 210, 211 and 212 all of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/1/eng@2008-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.