Selina Vukinu Ambe v Mdf-Esa Kenya [2019] KECA 243 (KLR)
The bottom line
#Kenya's Court of Appeal refused to overturn two lower courts that awarded a consultant only half her fee, confirming second appeals cannot re-examine facts.
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 High Court discharged its duty on a first appeal to re-hear the case, reconsider the materials and reach its own independent conclusion
- 2.Whether there was a written/binding contract between the parties
- 3.Whether the consent judgment set aside on the appellant's own motion could form a basis for judgment
- 4.Whether the Court of Appeal could interfere with the concurrent findings of fact of the two courts below
Key legal issues
#Scope of the Court of Appeal's mandate on a second appeal
The Court's mandate is limited by Section 72 of the Civil Procedure Act; it will not disturb concurrent findings of fact unless they lack cogent evidential foundation.
Section 72(1)(a) confines second appeals to grounds that the decision is contrary to law. Relying on M'Riungu vs. Republic, the Court held the principles apply equally to civil second appeals. Having reviewed the email evidence of dissatisfaction with the appellant's report, the Court found the concurrent findings that the work was of disputed standard were supported by material and thus could not be interfered with.
Existence of a written contract
No written contract existed because the appellant declined to sign the prepared contract; she could not rely on its terms.
The appellant's own testimony - that she refused to sign because the contract provided for arbitration under Tanzanian law - supported the Judge's finding. Her acceptance in cross-examination that payment depended on the report being accepted undermined her claim to full payment. The High Court's conclusion that no written contract existed was found to be absolutely accurate and supported.
Effect of a consent judgment set aside on a party's own motion
A consent judgment set aside at the instigation of the appellant herself could not later form the basis of the judgment following the full trial she demanded.
The consent judgment of 16th February 2012 was set aside on 17th July 2012 at the appellant's own application, on the grounds that it omitted interest and she had rejected it. Having herself sought the setting aside and a full hearing, the appellant could not resuscitate the consent judgment as a ground of appeal.
Legal principles established
#- A second appellate court cannot interfere with concurrent findings of fact of the two courts below unless such findings are not based on any cogent evidence.
- On a second appeal, an appellate court whose right of appeal is confined to questions of law must accept the findings of fact of the lower courts and not treat findings of fact as holdings of law.
- On a first appeal, the High Court has a duty to re-hear the case, reconsider the materials and reach its own independent conclusion.
Court orders
#- 1.The appellant's appeal is dismissed
- 2.No order as to costs of the appeal, the respondent not having appeared
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.App. No. 256 of 2013
- Jurisdiction invoked
- Section 72(1)(a) of the Civil Procedure Act - second appeal on a question of law
Relief refused
#Setting aside the judgments of the two courts below and entering judgment for the appellant as prayed in the plaint (Kshs. 380,000)
The concurrent findings of fact by the trial court and High Court were well founded; there was no written contract as the appellant declined to sign it; and the consent judgment had been set aside on the appellant's own motion
Costs
No order as to costs of the appeal - 'As the respondent did not appear during the hearing of the appeal, we make no order as to costs of the appeal.'
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.
We cannot interfere with concurrent findings of the two courts below on matters of fact unless such findings are not based on any cogent evidence.
The result of the foregoing is that the appellant's appeal has no merit and is accordingly dismissed. As the respondent did not appear during the hearing of the appeal, we make no order as to costs of the appeal.
In light of the evidence therefore, the concurrent findings of the courts below are well founded. We do not have a basis for interfering with the same.
The consent judgement having been set aside on the appellant's own motion, it was no longer a matter that could form the basis of the eventual judgement that resulted after the trial which the appellant herself demanded.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Selina Vukinu Ambe v Mdf-Esa Kenya [2019] KECA 243 (KLR)", Case Analysis (2019). Civil Appeal No. 348 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/243/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.