Naomi Kemunto v Total (K) Limited & another [2013] KECA 21 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed burn victims' kerosene claims because they couldn't prove the fuel was bought from the defendant's station.
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 learned judge erred in his evaluation of the evidence of the trial court (grounds 1, 2, 3, 4, 6, 9, 10 and 11)
- 2.Whether the learned judge imposed an extra evidential burden on the appellants contrary to the ordinary civil burden of proof (grounds 5 and 8)
- 3.Whether the doctrine of res ipsa loquitur was applicable and available to the appellants (ground 7)
Key legal issues
#Scope of a second appeal
Only issues of law fall for determination on a second appeal under section 72 of the Civil Procedure Act
The Court reminded itself that as a second appeal it was confined to questions of law, citing Kitivo v Kitivo. Complaints about evaluation of evidence must therefore amount to an error of law to succeed, and mere dissatisfaction with the first appellate judge's re-evaluation of the evidence does not.
Duties of a first appellate court
A first appellate judge is entitled to re-evaluate the entire evidence and is not bound by the trial magistrate's findings, provided he bears in mind that he neither saw nor heard the witnesses
The Court adopted Selle v Associated Motor Boat Company Ltd on first-appeal principles and found the learned judge had expressly reminded himself of his duty and carefully re-evaluated the evidence, so there was no misevaluation, consideration of extraneous matters, or overstepping of first-appeal boundaries.
Burden of proof in negligence claims based on allegedly defective kerosene
The plaintiff bears the ordinary civil burden of proving purchase of the product from the defendant, unaided by any extra evidential burden
The Court held the judge imposed no burden beyond the ordinary civil burden: the appellants had to prove they purchased the kerosene from the second respondent and not from another source. They failed: the incidents were not reported to the respondents or the police and no demand letter was produced.
Application of res ipsa loquitur
The doctrine cannot be invoked until the plaintiff has proved the facts giving rise to the inference of negligence, including the link between plaintiff and defendant
The Court found no error in the judge's refusal to apply the doctrine: since purchase of the kerosene from the second respondent had not been proved on a balance of probabilities, no inference of negligence could be drawn, and the judge had properly distinguished the authorities relied on by the appellants.
Legal principles established
#- On a second appeal under section 72 of the Civil Procedure Act, only issues of law fall for consideration
- A plaintiff claiming damages from a kerosene vendor must first prove on a balance of probabilities that the kerosene was purchased from the defendant before res ipsa loquitur can be invoked
- Whoever asserts the existence of facts bears the burden of proving them under section 107(1) of the Evidence Act
Court orders
#- 1.Appeal dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- H.C.C.C. No. 316 of 2006 (Appeal No. 309 of 2006)
- Jurisdiction invoked
- Second appeal under section 72 of the Civil Procedure Act, confined to issues of law
- Consolidated with
- Civil Appeal No. 207 of 2008, Civil Appeal No. 208 of 2008, Civil Appeal No. 209 of 2008, Civil Appeal No. 210 of 2008, Civil Appeal No. 212 of 2008
Relief refused
#Reversal of the High Court judgment allowing the first appeal against the magistrate's awards
No error of law was demonstrated in the learned judge's re-evaluation of evidence, treatment of burden of proof, or refusal to apply res ipsa loquitur
Costs
The appeal is dismissed with costs to the respondents.
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 being a second appeal, we remind ourselves that section 72 of the Civil Procedure Act applies and that only issues of law fall for consideration.
the appellants were bound to prove that they had purchased the kerosene in question from the second respondent and not from any other source and they had not done so
Since the appellants had not proved on a balance of probabilities that the kerosene in question had been purchased from the second respondent, there was no justification for drawing an inference of negligence on the part of the second respondent.
The upshot is that we find no merit in this appeal and the same is dismissed with costs to the respondents.
Issues in the judgment
#The judgment states the High Court appeal judgment was dated 11th July 2008 in the narrative but the title/description of the appeal refers to a judgment and decree 'dated 11th July 2007'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naomi Kemunto v Total (K) Limited & another [2013] KECA 21 (KLR)", Case Analysis (2013). Civil Appeal No. 211 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/21/eng@2013-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.