Faulu Kenya Dtm Limited v James Simatei Kendagor [2016] KECA 352 (KLR)
The bottom line
#A lender lost its appeal because it could not prove the cows it seized actually belonged to the borrower, and courts will only reconsider facts so far.
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 of the High Court re-evaluated or properly re-evaluated the evidence on record
- 2.Whether the appellant discharged the burden of proving that the attached animals were the ones the borrower had mortgaged
Key legal issues
#Scope of jurisdiction of a second appellate court
The Court of Appeal on a second appeal is confined to points of law and does not interfere with concurrent findings of fact absent a failure to evaluate the evidence.
Section 72 of the Civil Procedure Act limits second appeals to matters of law. The appellant's complaint that the High Court failed to re-evaluate the evidence is itself a legal point, so the court could examine it, but where the first appellate judge did analyze the evidence, the second appeal court finds no legal error and the concurrent factual findings stand.
Burden of proof regarding identification of attached/mortgaged animals
The appellant failed to discharge the burden under Section 107 of the Evidence Act of proving that the seized cows were those mortgaged by the borrower, having called no member of the Self Help Group who identified them.
The appellant alleged the borrower hid the mortgaged animals at his father's home. Its only witness did not know the borrower's animals, and the Group members who identified them to the auctioneers were not called as witnesses. With no identification mark on the animals, the claim that the wrong animals were seized was not rebutted, sustaining the findings of both courts below.
Whether the High Court properly re-evaluated the evidence
The learned Judge considered the evidence on identification and meticulously analyzed all other evidence, so there was no failure of re-evaluation and the appeal lacked merit.
The court reviewed the High Court judgment and found the Judge lamented the appellant's failure to call identifying witnesses, found no identification mark on the animals, and analyzed all the evidence. The accusation of failure to re-evaluate therefore failed, and the concurrent findings of the two courts below were affirmed.
Legal principles established
#- The jurisdiction of a second appellate court is limited to points of law only, as provided by Section 72 of the Civil Procedure Act.
- Failure to re-evaluate or properly re-evaluate the evidence on record is a legal point cognizable in a second appeal.
- A party alleging that attached goods belong to a borrower bears the burden of proof under Section 107 of the Evidence Act and must call witnesses with personal knowledge of the identification, especially where the goods bear no identification mark.
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Eldoret HCCA No. 111 of 2011
- Jurisdiction invoked
- Section 72 of the Civil Procedure Act (second appeal limited to points of law)
Relief refused
#Allowance of the appeal on the ground of failure by the High Court to re-evaluate the evidence
The High Court meticulously analyzed all the evidence; no basis for the accusation of failure to re-evaluate
Costs
Appeal dismissed with costs to the respondent
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.
The jurisdiction of a second appellate court is clear. It is limited to points of law only. Section 72 of the Civil Procedure Act makes that quite clear.
Failure to re-evaluate or properly re-evaluate the evidence on record is a legal point for consideration in a second appeal.
All that the appellant needed to do was to call one of the members of that Group who had personal knowledge of the animals and it would have proved its case.
Consequently, we find no merit in this appeal and we accordingly dismiss it with costs to the respondent.
Issues in the judgment
#The judgment contains a typographical error in the text ('respectifully' for 'respectfully')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Faulu Kenya Dtm Limited v James Simatei Kendagor [2016] KECA 352 (KLR)", Case Analysis (2016). Civil Appeal No. 216 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/352/eng@2016-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.