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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 94 of 2012

Johnstone Barasa Makokha v Daniel Akwala [2015] KECA 758 (KLR)

Court of Appeal of Kenya
23 April 2015
1,639 words in judgment
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The bottom line

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Kenya's Court of Appeal will only hear second appeals on points of law — it refused to touch a High Court judge's conditional order, dismissing the appeal with costs.

What this practically means

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Executive summary

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The respondent, an advocate, sued the appellant, his former client, for defamation before the Chief Magistrate's Court at Kakamega. After interlocutory judgment and formal proof, the appellant was awarded general damages of Kshs. 800,000 with costs and interest, judgment having been delivered on 21st February 2006. The appellant, who had entered appearance belatedly, applied to set aside the judgment; that application was dismissed in December 2006. His first appeal to the High Court (Chitembwe J) succeeded only conditionally: the judge, while finding the appeal unmerited because of the appellant's indolence, allowed the appellant to defend the suit upon filing a defence within fifteen days and depositing Kshs. 600,000 in court within sixty days, failing which the orders would be vacated. The appellant appealed to the Court of Appeal at Kisumu (Maraga, Mwera and Kantai JJA), contending that the deposit condition was punitive and that the judge had misused his discretion. The Court held that, as a second appeal under Section 72 of the Civil Procedure Act, its jurisdiction was confined to questions of law, and no point of law had been raised. Applying Maina v Mugiria, Mutazindwa v Agba, Stephen Muriungi and Mbogo v Shah, the court declined to interfere with the judge's discretion and affirmed that the appellant should have sought review of the deposit order before the High Court. The appeal was dismissed with costs. The judgment binds lower courts on the scope of second appeals and the reluctance of appellate courts to disturb discretionary orders absent misdirection.

Questions the Court framed

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

  1. 1.Whether any point of law arises in the appeal, given the limited jurisdiction over second appeals
  2. 2.Whether the learned Judge of the High Court abused or misused his discretion in ordering the appellant to deposit Kshs. 600,000 in court as a condition for setting aside the judgment and filing a defence

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction on second appeals

Holding

The jurisdiction is limited to questions of law under Section 72 of the Civil Procedure Act; the court does not re-evaluate evidence.

Reasoning

The court traced its jurisdiction to Section 72 of the Civil Procedure Act, which permits second appeals only on grounds that the decision is contrary to law, failed to determine a material issue of law, or involves substantial procedural error. It endorsed Maina v Mugiria and Mutazindwa v Agba, and adopted Chesoni Ag JA's statement in Stephen Muriungi on accepting findings of fact of lower courts.

p. 2
02

Whether the High Court judge misused his discretion in imposing a deposit condition for setting aside the judgment

Holding

The judge did not abuse or misuse his discretion; a conditional setting aside of judgment, with deposit of a sum less than the decreed amount, was within his discretion.

Reasoning

The judge found the appellant and his counsel indolent, yet still accorded the appellant an opportunity to defend the suit on conditions. The Court of Appeal held that whether a lesser deposit could have been ordered was not a matter for a second appeal, and that the appellant should have sought review before the same judge. Applying Mbogo v Shah, interference was unwarranted.

p. 3
03

Whether any point of law was raised in the appeal

Holding

No point of law was raised; the appeal therefore had no merit.

Reasoning

Having reviewed the memorandum of appeal and submissions, the court concluded that the grounds attacked the judge's discretionary orders without identifying any error of law. Since second appeals lie only on matters of law, the appeal inevitably failed, and the judgment of the High Court stands.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal confines itself to matters of law and will not re-evaluate evidence or interfere with findings of fact of lower courts.
  • An appellate court will not interfere with a judge's exercise of discretion unless it is shown the judge misdirected himself in some matter and reached a wrong decision, or that it is manifest the judge was clearly wrong and misjustice of justice resulted.

Court orders

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  1. 1.The appeal is dismissed with costs

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 Kakamega
H.C.C.C. 6 of 2007
Jurisdiction invoked
Section 72 of the Civil Procedure Act (second appeals to the Court of Appeal)

Relief refused

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Interference with the High Court's conditional order setting aside the judgment upon deposit of Kshs. 600,000

No point of law was raised and the Judge's discretion was properly exercised

p. 3

Costs

Appeal dismissed with costs to the respondent

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.

The upshot of our findings is that this appeal has no merit and we accordingly dismiss it with costs.
p. 3Final orders and disposition
we are of the respectful opinion that there is no point of law raised in this appeal at all
p. 3Second appeal confined to questions of law
Where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court (s)
p. 2Second appellate court bound by findings of fact
We cannot interfere with the exercise of discretion by a judge unless it is shown that the judge misdirected himself in some matter
p. 3Non-interference with judicial discretion

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Johnstone Barasa Makokha v Daniel Akwala [2015] KECA 758 (KLR)", Case Analysis (2015). Civil Appeal No. 94 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/758/eng@2015-04-23

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