Amosam Builders Developers Ltd v Betty Ngendo Gachie & 2 others [2009] KECA 438 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Nakuru homeowner's award, confirming a builder was liable for a collapsed house despite claims of geological faults and blaming the council.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the collapse of the subject house was attributable to negligence and poor workmanship or to geological faults in the land
- 2.Whether the trial Judge erred in his apportionment of blame among the appellant, the third party and the Municipal Council despite conflicting expert evidence
- 3.What is the effect on liability of the third party being joined by third party notice and the appeal against him having abated
Key legal issues
#Standard of review on a first appeal
The Court rehearsed all evidence and reached its own conclusions, mindful it had not heard the witnesses
As a first appeal, the court must analyse the evidence afresh and form independent conclusions without overlooking the trial court's findings, and must remember the trial court's advantage of seeing and hearing witnesses. The court applied this by reviewing each expert's testimony and the trial court's site visit before upholding the finding of negligence and poor workmanship.
Weight of conflicting expert evidence
Expert opinion is not binding; where experts conflict, the court decides on credibility and the totality of evidence
Relying on Vander Donckt v Tuelluson and C.D. Desouza v B.R. Sharma, the court held expert evidence is opinion evidence under Section 48 of the Evidence Act, to be weighed with other evidence. The trial Judge preferred PW2's practical assessment, corroborated by the court's own observation of the house and neighbouring intact buildings, supporting the finding of poor workmanship.
Effect of death of the third party and refusal to consolidate appeals
The appeal against the deceased 3rd respondent abated since no substitution application was made within time
The 3rd respondent died before the hearing and no substitution application had been made; the limitation period for substitution had expired. Counsel's informal application to consolidate Civil Appeal No. 46 of 2006 was refused, with the consequence that the appeal against the 3rd respondent abated. The apportionment as between appellant and 3rd respondent remains relevant only to indemnity.
Apportionment of liability among appellant, third party and Municipal Council
The trial court's apportionment (appellant and third party jointly 50%, Council 50%, with appellant bearing 30% inter se) was supported by the evidence
The trial court made specific findings of fact: the foundation was not deep enough, lacked wire mesh reinforcement, hard core was poorly laid, the lintel was unreinforced and the slab lacked required thickness and polythene sheet. The third party failed to lay metallic mesh, metal bars and polythene paper. These findings were grounded in the evidence, and the appellate court could not fault them.
Legal principles established
#- On a first appeal, the Court of Appeal must consider and analyse all the evidence and reach its own independent conclusions while bearing in mind that it did not see or hear the witnesses.
- Expert opinion evidence is not binding on the court; the court may accept or reject it depending on the facts and circumstances, and where expert evidence conflicts, credibility of witnesses determines the outcome.
- Where a third party was joined by third party notice, the defendant's liability to the plaintiff stands at the overall apportioned share, the inter-defendant apportionment serving only to define indemnity rights.
Court orders
#- 1.The appeal against the 3rd respondent (John Njoroge Karua) abated as he died and no substitution was made
- 2.The appellant's liability to the 1st respondent is 50%, the apportionment between the appellant and the 3rd respondent being only for purposes of indemnity
- 3.The appeal is dismissed with costs to the 1st respondent
- 4.No order as to costs in respect of the 2nd respondent, Nakuru Municipal Council, which did not attend the hearing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C. No. 104 of 1992
- Jurisdiction invoked
- First appeal to the Court of Appeal under the appellate structure of the Judicature/registered land and tort suit (no specific provision cited in the judgment)
Relief refused
#Informal application for consolidation of Civil Appeal No. 46 of 2006 with this appeal
Counsel hoped to obviate abatement of the appeal against the deceased 3rd respondent, as the limitation period for substitution had expired
Costs
Appeal dismissed with costs to the 1st respondent; no order as to costs in respect of the 2nd respondent, Nakuru Municipal Council, which did not attend the hearing.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This is a first appeal. That being so it behoves us to consider all the evidence that was presented to the trial court, analyse it and come to our independent conclusions in light of the pleadings without overlooking the conclusions reached by the trial court.
as a general rule evidence by experts being opinion evidence is not binding on the court. The court has to consider it a long with other evidence and form its own opinion on the matter in issue.
the appellant's liability to the 1st respondent, Betty Ngendo Gachie is 50%. The apportionment of liability as between the appellant and the 3rd respondent was to make easier for the appellant to know how much it would claim from the 3rd respondent by way of indemnity.
In the result, and for the foregoing reasons, this appeal fails and it is dismissed with costs to the 1 st respondent.
Issues in the judgment
#The date of the High Court judgment is inconsistent within the judgment: the header states 'dated 26th January, 2001' while the body refers to 'the judgment and decree of the superior court dated 20th January 2001'.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- William Mungai & 22 Others v Kenya Railways Corporation10 Feb 2025applied
- Ndovu Estates Limited v Ntutu (Environment & Land Case 105 of 2017) [2023] KEELC 160 (KLR)[2023] KEELC 160 (KLR)24 Jan 2023applied
- Margaret Muthoni Wanyee v Mukenia Co-operative Society Limited [2018] KEELC 4398 (KLR)[2018] KEELC 4398 (KLR)8 Feb 2018followed
- Mburugu K Muringa v Municipal Council of Mombasa [2017] KECA 361 (KLR)[2017] KECA 361 (KLR)22 Jun 2017followed
Cite this brief
#Cite this brief
Caselaw, "Amosam Builders Developers Ltd v Betty Ngendo Gachie & 2 others [2009] KECA 438 (KLR)", Case Analysis (2009). Civil Appeal 193 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/438/eng@2009-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.