AR & 2 others v ARG (Civil Appeal 78 of 2019) [2022] KECA 52 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a family's second appeal over an estate valuation, confirming that second appeals only address legal errors, not factual disagreements.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether any issue of law arises in this second appeal, given the narrow mandate under Section 72 of the Civil Procedure Act, from the Judge's direction that the Probity Valuers valuation be used in distributing the deceased's estate
Key legal issues
#Scope of the Court of Appeal's jurisdiction on a second appeal
The Court's mandate is limited to grounds that the decision is contrary to law, failed to determine a material issue of law, or involved a substantial procedural error possibly affecting the merits; factual disputes such as which valuation report to prefer are outside that mandate.
Section 72 of the Civil Procedure Act confines a second appeal to questions of law. The appellants' complaint was that the Judge preferred the joint Probity Valuers report over their own Shelter Valuers report. The record showed the Judge had ordered valuation of developments only, while the appellants filed a report covering land and developments. That was a factual issue, and no point of law was discernible.
Consequence of failing to appeal the Kadhi's main judgment
Because no appeal was taken against the Kadhi's main distribution findings or his subsequent ruling, those findings stood, and the only live issue before the Court was the valuation direction for the remaining developments.
The Kadhi's judgment of 30th November 2017 distributing the estate and his ruling of 26th February 2018 were never appealed. The High Court appeal concerned only implementation and valuation. The appellants' challenge to the valuation chosen by the Judge could not reopen the unappealed findings of the Kadhi.
Legal principles established
#- On a second appeal under Section 72 of the Civil Procedure Act, the Court of Appeal is confined to questions of law and will not entertain factual complaints.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Marsabit
- Civil Appeal No. 1 of 2018
- Jurisdiction invoked
- Section 72, Civil Procedure Act (Cap 21, Laws of Kenya)
Relief refused
#Setting aside the ruling of 29th March 2019 and adoption of the appellants' own valuation report (Shelter (M) Valuers Limited) for purposes of distributing the estate
The appellants' valuation covered both land and developments whereas the Judge's order required valuation of developments only; and the complaint is a factual issue outside the Court's mandate on second appeal
Costs
The appeal is 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.
considering our mandate in a second appeal to deal only with issues of law, we can see no issue of law raised in this appeal and the appeal is dismissed with costs to the respondent.
I do order that the valuation by probity valuers shall be the one to be utilized in the process of distributing the deceased’s estate.
The order by the Judge had been that the parties file valuation reports on developments on the land only. The record shows that the appellants filed a valuation that included land and developments on the land which was not what the court had ordered.
Issues in the judgment
#The judgment refers inconsistently to the date of the Kadhi's judgment, once as 30th November 2017 and once as 30th September 2017
The judgment is internally inconsistent as to which ruling was under challenge: the appellants sought to set aside a ruling of 29th March 2019, while the narrative describes the Kadhi's ruling of 26th February 2018 and the High Court ruling of 29th March 2019 without reconciling the second appeal's target decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AR & 2 others v ARG (Civil Appeal 78 of 2019) [2022] KECA 52 (KLR)", Case Analysis (2022). Second Appeal from Marsabit High Court Civil Appeal No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/52/eng@2022-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.