Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 264 of 2009· [2016] KECA 662 (KLR)

Andrew Cheruiyot & another v Anyoka Rogito [2016] KECA 662 (KLR)

Court of Appeal of Kenya
14 April 2016
RNR. N. NambuyeHOH. M. OkwenguPKP. O. Kiage
1,934 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that a judge cannot adopt an untested surveyor's report as a judgment, and unrecorded submissions count as unheard.

What this practically means

#

Executive summary

#
The Court of Appeal (Nambuye, Okwengu and Kiage, JJA) allowed this appeal against a ruling of the High Court at Kericho (Ang'awa J) by which a District Surveyor's boundary report, prepared pursuant to a consent order, was adopted as the judgment of the court in a trespass and boundary dispute. The appellate court identified two fatal defects. First, although counsel for the appellants appeared at the hearing of the respondent's application to adopt the report, the learned Judge's record contained no account of his submissions; the court held that a superior court must faithfully record and consider submissions, that what is unrecorded is taken as unconsidered, and that this violated the audi alterem partem requirement of a fair hearing, obligating the appellate court to set aside the judgment ex debito justitiae. Second, the consent order merely required the surveyor to fix boundaries and file a report; it did not make the report determinative or a judgment. The report was never tested by cross-examination, no submissions were taken on it, and it could not resolve the totality of the controversy, including the appellants' pleaded objection to jurisdiction which should have been dealt with in limine. By adopting the report, the learned Judge abdicated her judicial role, rendering the judgment a nullity, following Telkom Kenya Ltd v John Ochanda. The court set aside the ruling and decree and remitted the case to the Land and Environment Court for hearing and disposal, with each party bearing its own costs of the appeal. The decision binds lower courts to ensure accurate recording of proceedings and forbids the mechanical adoption of untested expert reports as judgments.

Key legal issues

#
01

Failure to record and consider submissions

Holding

The omission of the appellants' submissions from the record violated audi alterem partem and entitled the appellants to have the judgment set aside

Reasoning

A superior court of record must capture proceedings accurately. Public confidence depends on litigants being assured that their case will be fully heard, recorded and considered. If what a party said was never recorded, it was never considered. Such a failure to accord a fair hearing obligates the appellate court to set aside the judgment as a matter of justice, not discretion.

p. 4
02

Adoption of a surveyor's report as judgment

Holding

Adopting the surveyor's report as the judgment of the court was an error that rendered the judgment a nullity

Reasoning

The consent order only required the surveyor to determine and fix boundaries and submit a report; it did not make the report determinative or a judgment. The report was never cross-examined upon, no submissions were taken on it, it could not address the totality of the controversy including the pleaded jurisdictional objection, and by adopting it the Judge abdicated her judicial role.

p. 4

Legal principles established

#
  • A court must faithfully record and consider the evidence and submissions of the parties; unrecorded submissions are treated as unconsidered, and failure to accord a fair hearing obligates the appellate court to set aside the judgment
  • A judge cannot delegate the adjudicatory function by adopting an untested expert report as a judgment; doing so renders the judgment a nullity
  • A consent order referring a matter to a surveyor does not relieve the court of its duty to adjudicate or make the resulting report a judgment

Court orders

#
  1. 1.Appeal allowed
  2. 2.Ruling of Ang'awa J dated 19th February 2009 and the ensuing decree set aside
  3. 3.Case remitted to the relevant Land and Environment Court for hearing and disposal
  4. 4.Each party to bear own costs of the appeal
On appeal from
High Court of Kenya at Kericho
H.C.C.C. No. 5 of 2003
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court under the Constitution and the Civil Procedure Act (Cap 21); the judgment does not cite a specific appellate provision.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Andrew Cheruiyot & another v Anyoka Rogito [2016] KECA 662 (KLR)", Case Analysis (2016). Civil Appeal No. 264 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/662/eng@2016-04-14

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