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Joseph Kimari, Reuben Gichungu & Teresia Nyambura v. Johanna Mbogo & Mtumishi Church of God

(2007) JELR 100687 (CA)

Court of Appeal  •  Civil Appeal 254 of 2002  •  20 Dec 2007  •  Kenya

Philip Kiptoo Tunoi, Emmanuel Okello O'Kubasu, William Shirley Deverell



It is trite law that in a first appeal before it this Court is obliged to reconsider the evidence, re-evaluate it and make its own conclusions, but as it does so it must remember that it has neither seen nor heard the witnesses – see Peters v. Sunday Post Ltd [1958] E.A. 424. Selle and Another v. Associated Motor Boat Co. Ltd and Others [1968] E.A. 123 and Ephantus Mwangi and Another v. Duncan Mwangi Wambugu [198-88] 1 KAR 278. In the last case HANCOX JA (as he then was) put it thus at p. 292 of the Report:-

“A Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding he did.”

The first holding in that case is also relevant namely, that:-

“The Court of Appeal would hesitate before reversing the decision of a trial Judge on his finding of fact and would only do so if (a) it app…

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