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Court of AppealDismissedCivil Appeal No. 110 of 2015

Transmara Sugar Company v Daniel Nyabuto Momanyi [2020] KECA 579 (KLR)

Court of Appeal
19 June 2020
2,347 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal ruled a company must pay for crops its agent destroyed, and second appeals cannot re-argue facts already settled by two lower courts.

What this practically means

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Executive summary

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The respondent leased Land Parcel No. Ololchani/785, planted tomatoes, cabbages and beans, and sued Transmara Sugar Company after the company's tractor ploughed the crops on 26 September 2010. The trial magistrate in Kilgoris awarded special damages of Ksh. 900,000, relying partly on the conviction of Samwel Ntalamia Olonana, the company's agent, in Kilgoris Criminal Case No. 154 of 2011 for malicious damage to property. The High Court (Wakiaga, J) dismissed the company's first appeal, holding it vicariously liable for its agent's unlawful acts. The company then lodged this second appeal on nine grounds, contending the judge failed to analyse its evidence, ignored its lease with the lessor, and wrongly disregarded defence expert calculations. Asike-Makhandia JA, delivering the judgment of the Court, held that a second appeal is confined to matters of law and that most grounds were contestations of fact. Applying the Adan Muraguri Mungara test, the Court declined to disturb the concurrent findings of the two courts below, noting two expert witnesses agreed the crops were destroyed before harvesting. The unappealed criminal conviction settled the agency question, grounding vicarious liability. The lease agreements could not shift liability to the lessor Moses Konchellah, who was not a party; the company's remedy was a third-party claim or indemnity. The appeal was dismissed with costs. The judgment was delivered pursuant to rule 32(3) of the Court of Appeal Rules because Otieno-Odek JA passed on before delivery, and Kiage JA concurred in a separate concurring judgment adding nothing.

Questions the Court framed

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

  1. 1.Whether the High Court judge erred in failing to analyse the appellant's evidence and in disregarding the defence expert evidence on agricultural production
  2. 2.Whether the two courts below erred in finding the appellant vicariously liable for the destruction of the respondent's crops
  3. 3.Whether the lease agreements between the appellant and the lessor shifted liability to Moses Konchellah
  4. 4.Whether this second appeal, confined to matters of law, could disturb the concurrent findings of fact of the two courts below

Key legal issues

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01

Scope of a second appeal

Holding

Most grounds of appeal were contestations of fact, not law, and could not be entertained in a second appeal

Reasoning

The Court held that a second appeal is confined to matters of law. It classified whether crops were harvested and whether the judge ignored factual calculations of agricultural production as questions of fact. The Court closely scrutinised the memorandum of appeal and found most grounds to be factual contestations incapable of sustaining a second appeal.

p. 3
02

Concurrent findings of fact

Holding

The Court would not disturb the concurrent findings of fact of the two courts below, adopting the Adan Muraguri Mungara test

Reasoning

Drawing analogy from criminal cases and citing Adan Muraguri Mungara v Republic, the Court held it must pay homage to concurrent findings of the two courts below unless based on no evidence, a perversion of the evidence, or findings no reasonable tribunal would make. The appellant failed to point to any such defect; two expert witnesses agreed crops had been destroyed before harvesting.

p. 3
03

Vicarious liability and prior criminal finding

Holding

The criminal conviction of the appellant's agent, not appealed against, settled that the appellant was vicariously liable for the destruction of the crops

Reasoning

The Court examined the record and found that Kilgoris Criminal Case No. 154 of 2011 had settled that the accused, Samwel Ntalamia Olonana, was an agent of the appellant company. Since no appeal was preferred against the conviction and sentence, the criminal court's finding remained the true factual position, supporting vicarious liability in the civil suit.

p. 3
04

Liability of a non-party lessor

Holding

Liability could not be visited on Moses Konchellah, who was not a party to the suit; the appellant's remedy was a third-party notice or indemnity claim

Reasoning

The appellant argued that if anyone were liable for the damaged crops, it was the lessor Moses Konchellah who had breached the lease. The Court held the presence or absence of a lease agreement was not an issue per the pleadings, that a person has no right to unlawfully damage another's property, and that the appellant could have enjoined the lessor as a third party.

p. 3

Legal principles established

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  • A second appeal to the Court of Appeal must be confined to points or matters of law; the Court will not interfere with concurrent findings of fact unless they are based on no evidence, a perversion of the evidence, or no reasonable tribunal would have reached them
  • An unappealed conviction in a criminal case fixing agency stands as the true factual position in subsequent civil proceedings
  • A court cannot find liability for or against a person who is not a party to the suit

Court orders

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  1. 1.Appeal dismissed
  2. 2.Appellant to pay costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

KI
concurring

Concurred with the judgment of Makhandia JA in draft, adding nothing.

I concur with the Judgment of my learned brother Makhandia JA, which I considered in draft, and have nothing useful to add.p. 4
majority
On appeal from
High Court of Kenya at Kisii
Civil Appeal No. 36 of 2013
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court; second appeal confined to matters of law under the Court of Appeal Rules

Relief refused

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Appellant's request that liability be visited on the lessor Moses Konchellah

The lessor was not a party to the suit; the appellant could have enjoined him as a third party or sought indemnity

p. 3

All nine grounds of appeal

They were contestations of fact, not law, and the concurrent findings of the two courts below were supported by evidence

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.

Most of the grounds urged are contestations of fact not law. A second appeal must be confined to points or matters of law.
p. 3Scope of second appeal
it has a duty to pay homage to concurrent findings of fact made by the two courts below unless such findings are based on no evidence at all or on a perversion of the evidence
p. 3Circumstances for interfering with concurrent findings
The fact that no appeal was preferred against the conviction and sentence in the criminal case means that the finding of the criminal court remains as the true factual position.
p. 3Effect of unappealed criminal conviction in civil proceedings
A court cannot find liability for or against a person who is not a party in the suit.
p. 3Non-party liability
The upshot is that this appeal has no merit and I would dismiss it with costs.
p. 3Disposition
As Kiage J.A concurs, orders accordingly.
p. 3Final orders - dismissal of appeal

Issues in the judgment

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material

The judgment closes with a second caption block showing the respondent as 'OTIENO, RAGOT & COMPANY ADVOCATES' and the appeal as arising from a Kisumu ruling by E. Maina, J in HC Misc. Civil Appln. No. 18 of 2016, conflicting with the opening caption naming Daniel Nyabuto Momanyi and the Kisii appeal before Wakiaga, J

minor

The coram is rendered inconsistently: the first caption lists 'ASIKE-MAKHANDIA, KIAGE & OTIENO-ODEK, JJA' while the second caption lists 'MAKHANDIA, KIAGE & ODEK, JJ.A'

minor

Delivery location inconsistency: the first judgment block states 'Dated and delivered at Nairobi' while the concurrence states 'Dated and delivered at Kisumu'

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, "Transmara Sugar Company v Daniel Nyabuto Momanyi [2020] KECA 579 (KLR)", Case Analysis (2020). Civil Appeal No. 110 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/579/eng@2020-06-19

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