IN THE COURT OF APPEAL FOR EAST AFRICA
CORAM: (DUFFUS, P. LUTTA AND MUSTAFA, JJ.A,)
CIVIL APPEAL NO 36 OF 1971
KIHARA NJOROGE ……………………………………….APPELLANT
SAMWEL MBUGUA GITHERE……………………….RESPONDENT
[Appeal from the judgment and decree of the High Court of Kenya at Mombasa (Miller, J ) dated 24th may, 1971 in Civil Case No. 228 of 1970]
24th December, 1971
The following Judgments were read:-
This appeal basically depends on the judge's findings of fact on fairly simple issues. The plaintiff/respondent sued and recovered judgment against both the appellant, the first defendant) and the second defendant who has not appealed, for the amount he claimed, shs 8,470 as monies had and received by the defendant for his use. The plaintiff and the appellant are African businessmen who were apparently friends, whilst the second defendant worked with the appellant. The respondent's case was that the appellant and the second defendant undertook to collect rent on his behalf and did in fact do so and he claimed the amount which he says they both admitted having in hand for him. The parties alone gave evidence and the issue was really one of credibility. The second defendant changed his defence when he gave evidence and admitted owing the plaintiff a large proportion of the amount claimed. The learned judge found he was "a brazen liar” and he accepted the plaintiff's case against both defendants and entered judgment accordingly. The appellant's first ground was that the learned judge failed to weigh the evidence against each defendant separately. The evidence of both defendants to some extent covered the same facts and the second defendant's evidence undoubted1y' supported the appellant's. It does appear though that the trial judge did consider the cases against each defendant separately; thus, in considering the case of the appellant he said this depended really on the evidence of the respondent against the appellant' S evidence to quote from the judgment it was a case of “Oath against Oath. It is of course, possible that the fact that he found the second defendant to be “a brazen liar" might have been one of the reasons influencing the judge's decision against the appellant but this does not appear from his judgment. His decision against the appellant appears to have been based on demeanour and credibility. Another complaint was that there was no evidence to establish how the amount of shs 8,470 was arrived at but in his evidence the respondent did aver that this was the figure given to him by both the defendants when they went into the accounts in September, 1970. It is typical of presentation of this case that the respondent was not cross-examined as to this incident, nor for that matter was the appellant when he gave evidence and made a general denial of taking any accounts with the respondent. Another point taken on appeal was that the learned judge commented on the fact that: he observed the respondent supplying his counsel with data to cross-examine the appellant. If the learned judge did place any real reliance on this it would of course be wrong as it seems impossible for the judge to have known respondent was saying or handing to his advocate but here again! I suppose a party's behaviour in court could subconsciously influence a judge's decision as it is part of the atmosphere of the court in which the judge is going to decide on the credibility ro1d truthfulness of the witnesses. The appellant also stressed that the respondent called no witnesses as, for instance a tenant or a bank clerk and of course, the onus of proof was on the respondent to prove his case. All these, however were factors, which must have "been considered "by the trial judge and in the final result t it remained a question of the credibility of the witnesses. An appeal to a first appellate court is said to bc a re-hearing but it is a re-hearing only in the sense that it is the duty of the first appellate court to itself to review and re-assess the evidence in order to determine whether the conclusion reached by the trial court upon the evidence should stand.
I might perhaps quote here from Lord MacMillan’s Judgment in the much-quoted decision of the House of Lords in Watt vs Thomas (1947) 1 A.E.R at p.590.
“The appellate court had "before it only the printed record of the evidence. Were that the whole evidence it might be said that the appellate judges were entitled and qualified to reach their own conclusion upon the case r but it is only part of the evidence. What is lacking is evidence of the demeanour of the witnesses or their candour or their partisanship; and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial judge possesses in reaching his conclusion but it is not available to the appellate court. So far as the case stands on paper, it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case then the decision of the trial judge, who has enjoyed advantages not available to the appellate court, becomes of paramount importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on question of fact. 1J1he judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone completely wrong."
This Court would be loath to upset a trial judge's assessment of the witnesses in a case like this which depends so much on the demeanour of the witnesses. I cannot find that the learned judge has seriously misdirected himself in his judgment and he was in the best position to judge the credibility of the parties and to arrive at a true and just verdict in the case. In my opinion it would be wrong to interfere with his decision and I would dismiss the appeal with costs to the respondent and as Lutta J.A. and Mustafa, J.A. also agree it is so ordered.
I have had the advantage of reading in draft the judgment prepared by the learned President and I respectfully agree that this appeal should be dismissed. The principles upon which this Court will act when asked to disturb the finding of a judge, who has had the advantage of observing the demeanour of the witnesses and the general conduct of a case, are well settled. In the instant case the learned judge commented on the unsatisfactory demeanour of the first and second defendants as witnesses. I respectfully accept his comments.
In such circumstances this Court would not be free to review the learned judge's conclusions. In my opinion it would be wrong to disturb his decision.
I would dismiss the appeal.
MUSTAFA, J A
The respondent in this appeal had filed an action against the appellant and another party who has not appealed, jointly and severally, claiming a sum of Shs. 8470/- for money had and received for and to the use of the respondent. The High Court gave judgment for the respondent as prayed. There is a remarkable dearth of evidence in the case. The respondent had not adduced evidence to show how the sum of Shs. 8470/- allegedly in respect of rent collection was made up, nor in fact what was the monthly rental to be collected. There was some paper written and signed by the party who has not appealed which would indicate that on or about 21.3.70 the party who has not appealed owed the respondent Shs. 950/- and the appellant owed the respondent 265/-.
However, as I have indicated that document was not written or signed by the appellant. The respondent in his evidence testified that sometime in September 1970 the appellant and the party who has not appealed told him that they owed him Shs.8470/- being balance of rent they had collected and not accounted for. That was the only piece of evidence on which the judgment against the appellant was based.
The learned judge dealt with the case on the basis of who he believed, or to use his phrase it was a case of "oath against oath". The learned judge implicitly believed the respondent who has "totally truthful" and was of the view that the appellant and the party who has not appealed "lied and tried to evade the consequences of the misappropriation of monies they collected on behalf of the plaintiff". Despite the unsatisfactory nature of the respondent's case I cannot say that the learned judge was not entitled to accept his evidence, however sparse, against the appellant. The respondent has just managed to make out a case against the appellant, on the basis of his having verbally told the respondent that he owed the respondent Shs. 8470/-.
In the circumstances I agree that the appeal be dismissed.