Meshack Mathenge v Gichuru [1986] KECA 29 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once a court enters judgment on elders' land award, the decision is final unless new evidence meets exceptional standards.
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 judge of the High Court misapprehended the evidence and consequently made an incorrect conclusion
- 2.Whether the resident magistrate misdirected himself in not invoking, on his own motion, sub-sections (1) and (2) of section 9D of the Act to make enquiries relating to the alleged stone house on the parcel of land
- 3.Whether leave should be granted to adduce fresh evidence on second appeal regarding the alleged permanent development on the land
- 4.Whether the fourth ground of appeal, a new point of law not argued before the High Court, could be entertained
Key legal issues
#Whether the first appellate judge misapprehended the evidence
The judge did not misapprehend the evidence; his decision upholding the entry of judgment in terms of the panel's award was correct
On second appeal the Court asks only whether the first appellate judge misapprehended the evidence. Here the panel's decision was based on the evidence of the parties; there was no evidence before the panel of a stone house; and the appellant was represented when judgment was entered and offered no reason for failing to seek modification, correction or remission of the record. The magistrate was entitled to conclude that, no objection having been raised, all was well.
Whether the resident magistrate should have enquired suo moto into the alleged stone house under section 9D
No; the discretion under section 9D had to be exercised judicially and there was no proper basis, since the record made no reference to a stone house
The magistrate could be deemed to have perused the record before entering judgment. Because there was no reference to a stone house in the record, the magistrate could not properly imagine, consider and find that a stone building existed and then suggest compensation. The Court found the claim of a stone house to be a fabrication, noting no application had been made for additional evidence to be taken by the trial court.
Whether fresh evidence could be received on second appeal to establish the alleged development
No; the fourth ground was a new point of law not argued before the High Court and no exceptional circumstances justified reception of fresh evidence
Following Overseas Finance Corporation v Administration General, courts deal with the legal consequences of pleaded facts except where validity of the claimed result would require investigation of new disputed facts. Here no further investigation was required. Fresh evidence is admitted only where a fundamental assumption has been falsified by subsequent events or refusal would affront common sense or a sense of justice, per Dick v Koinange and Muholland v Mitchell. No such circumstances existed.
The effect of entry of judgment under section 9E on the right of appeal
Once judgment was entered in terms of the panel's award and a decree followed, no appeal lay except in so far as the decree exceeded or departed from the panel's decision, which was not alleged
The appellant's advocate had nothing to say against judgment being entered on May 9, 1985. Once judgment was entered and the decree followed under section 9E(2), no appeal lay from the decree except where it was in excess of, or not in accordance with, the decision of the panel of elders. No such dispute was before the Court, so the appellant's fate was sealed.
Compliance with the thirty-day period under section 9D(4)
The thirty days run from receipt of notice of filing of the record, but the appellant took no objection and made no application, so he could not complain
The resident magistrate should have ascertained when the appellant received notice and ensured judgment was entered no sooner than thirty days after receipt unless the parties agreed. Judgment was entered marginally early, but no harm was done because time was effectively extended to May 9, 1985, on which date the appellant took no objection and raised no query about needing more time to apply to vary or set aside the award.
Legal principles established
#- Once judgment is entered in accordance with the decision of a panel of elders, the ensuing decree is not appealable except in so far as it is in excess of, or not in accordance with, that decision
- The power of the resident magistrate's court to modify, correct, remit or set aside a panel of elders' record under section 9D, even on its own motion, must be exercised judicially and only on a proper and reasonable basis
- Section 9D does not permit fresh matters to be reconsidered by the court exercising its supervisory jurisdiction over a panel of elders' record
- Fresh evidence on appeal may be admitted only in exceptional circumstances, such as where a fundamental assumption affecting both parties has been falsified by subsequent events or where refusal would affront common sense or a sense of justice
- The decision of a panel of elders, based on the evidence before it, cannot be challenged with any success on second appeal
- A party who took no steps under section 9D(4) within the prescribed period and raised no objection to the entry of judgment cannot later complain of that judgment
Court orders
#- 1.Appeal dismissed with costs of the Court of Appeal and in the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Authored the leading judgment. Held that the resident magistrate was entitled to enter judgment under section 9E(1) in terms of the panel of elders' award, that the discretion under section 9D could not be exercised without a proper basis, that the claim of a stone house was a fabrication unsupported by evidence, and that fresh evidence could not be received on second appeal. Dismissed the appeal with costs in this Court and the High Court.
I would dismiss the appeal with costs of this court and in the High Court and as Platt and Gachuhi JJA agree, it is so ordered.p. 3
Wrote the judgment
Wrote separately. Agreed the appeal must be dismissed with costs, holding that section 9D does not permit fresh matters to be reconsidered, that the appellant took none of the available steps under section 9D(4), and that once judgment was entered under section 9E the decree was immune from appeal except where it exceeded the panel's decision. Observed, however, that as the first appeal to the High Court was incompetent, the judge should have struck it out rather than dismiss it.
Consequently the learned judge was quite right to hold that the appeal to him was incompetent. He should then have struck it out rather than dismiss it.p. 4
Wrote the judgment
Concurred with the judgment of Nyarangi JA, stressing that entertaining an application for fresh evidence available at the time the elders decided the dispute would be a cunning way of re-opening a concluded matter and would amount to a retrial with no end to litigation. Also noted the certificate of title was issued long after the elders had finalized the matter.
I agree with the judgment prepared by Nyarangi JA. However, I would stress that to entertain the application to produce fresh evidence in the second appeal which was available at the time the matters in dispute were pondered by the elders and decided upon, is a cunning way of re-opening the matter which has been already concluded.p. 5
- On appeal from
- High Court of Kenya, Nakuru
- Jurisdiction invoked
- Second appeal to the Court of Appeal on issues of law from the High Court, arising from a reference under Part IIA of the Magistrates Courts Act (cap 10) as amended by the Magistrate's Jurisdiction (Amendment) Act, 1981, sections 9A to 9E
Relief refused
#Leave to adduce fresh evidence (fourth ground of appeal)
No exceptional circumstances justified reception of fresh evidence; the point was a new point of law not argued before the High Court and the validity of the panel's decision required no further investigation
Re-opening of the panel of elders' award on the basis of alleged permanent development (stone house) on the land
There was total lack of evidence before the panel of elders about a stone house; the claim was found to be a fabrication and section 9D does not permit fresh matters to be reconsidered
Compensation for the alleged costly development on the land
No evidence of the construction was before the panel or the courts; the resident magistrate could not properly imagine a stone building and then suggest compensation
Costs
Appeal dismissed with costs of this court and in the High Court.
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.
I would dismiss the appeal with costs of this court and in the High Court and as Platt and Gachuhi JJA agree, it is so ordered.
The appeal is dismissed with costs.
It would be a misdirection for a court, even on its motion, to act under sub-section (1) and (2) of section 9D in the absence of reasonable ground for doing so.
It may safely be asserted that section 9D does not permit fresh matters to be reconsidered by the court exercising its supervisory jurisdiction under that section.
Upon judgment being entered a decree shall follow and no appeal shall lie from that decree except in so far as the decree is in excess of, or not in accordance with, the decision of the panel of elders.
I, therefore, conclude that the rival contention of the existence of a stone house is untrue and must fail.
to entertain the application to produce fresh evidence in the second appeal which was available at the time the matters in dispute were pondered by the elders and decided upon, is a cunning way of re-opening the matter which has been already concluded.
Consequently the learned judge was quite right to hold that the appeal to him was incompetent. He should then have struck it out rather than dismiss it.
Issues in the judgment
#The title of the case and appeal number are not expressly stated in the judgment; the parties are identified only in the narrative (Meshack Mathenge as appellant and Njeri Gacheru as the plaintiff before the elders).
A minor internal inconsistency as to whether the appeal was heard as a second appeal from the High Court's dismissal of a first appeal or from the resident magistrate's judgment; Platt JA describes the first appeal as incompetent and dismissed, whereas it was in fact declared incompetent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Meshack Mathenge v Gichuru [1986] KECA 29 (KLR)", Case Analysis (1986). Second Appeal from High Court, Nakuru (Omolo, Ag J), Civil Appeal decided 28 November 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/29/eng@1986-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.