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Court of AppealPartially AllowedEldoret Civil Appeal No. 163 of 2018· [2020] KECA 189 (KLR)

Francis Barasa Lurare & 1 other v Denis Nyongesa Maloba

Court of Appeal of Kenya
20 November 2020
RNR. N. NambuyeDMD. K. MusingaSKS. Gatembu Kairu
3,140 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out a land succession judgment for lacking proper reasons and ordered a fresh trial before a different judge.

What this practically means

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Executive summary

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This first appeal from the High Court of Kenya at Bungoma (Ali Aroni, J.) arose from succession proceedings concerning Bokoli/Chwele/826. The appellants, sons of the deceased, obtained a grant and sought confirmation, claiming the deceased sold only two acres to the respondent's father. The respondent, holding a limited grant ad colligenda bona for the estate of Joash Maloba Kituyi, protested, claiming seven acres purchased in 1970 on which his family had settled for over forty-eight years. The parties' pleadings and protest were converted into a plaint and defence by consent and tried by viva voce evidence. The trial judge, in a brief ruling, found the family had occupied what they bought for forty-eight years and directed that the parties meet the costs of a surveyor to measure the occupied portion, which would then form the land the petitioners would transfer. The Court of Appeal, re-evaluating the record as a first appellate court, framed two issues: whether the judgment met the Order 21 Rule 4 threshold for drafting judgments in defended suits, and what consequential orders should issue. It found the judgment identified no point for determination, amounted merely to the judge's impression, and gave no reasons; and that the survey direction was unworkable since the court had become functus officio with no mechanism for appointing a surveyor, timelines, execution, or dispute resolution. Sustaining it would be a misjustice and mistrial. Declining the appellants' invitation to determine the dispute finally, the Court allowed the appeal, directed a retrial before a judge other than Aroni, J., ordered expeditious handling and a mention before the Presiding Judge, Bungoma, within twenty-one days, and made no order as to costs.

Key legal issues

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01

Whether the trial judgment complied with the requirements of Order 21 Rule 4 of the Civil Procedure Rules

Holding

The judgment failed to identify any point for determination and gave no reasons capable of execution, breaching Order 21 Rule 4

Reasoning

In a defended succession cause converted to a plaint, the judge was required to address both rival pleadings and the supporting evidence, identify the contested points for determination (the acreage actually sold), and give reasoned findings. Instead the judge recorded an impression that occupation should be measured, without identifying any issue. The further direction that a post-judgment survey would determine entitlement left the proceedings in limbo: no surveyor was designated, no timelines set, and the court had become functus officio, with no mechanism for resolving disputes arising from the survey. Sustaining the judgment would amount to a misjustice and a mistrial.

p. 3
02

Whether the Court of Appeal could determine the dispute finally rather than order a retrial

Holding

No; the Court's mandate is confined to what the High Court has pronounced on, and Rule 3 empowers it to remit or order a new trial

Reasoning

Although section 3(2) of the Appellate Jurisdiction Act vests the Court with the power, authority and jurisdiction of the High Court, that provision must be read with section 3(1), which confines the Court to hearing appeals from the High Court, i.e. what the High Court has already pronounced itself on. Rule 3 of the Court of Appeal Rules permits the Court to confirm, reverse or vary the decision, remit the proceedings with directions, or order a new trial. Since the judgment below was fundamentally defective, the appropriate course was a retrial, not a final determination on the merits.

p. 4

Legal principles established

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  • Judgments in defended suits must contain a concise statement of the case, the points for determination and the reasons for the decision, as required by Order 21 Rule 4 of the Civil Procedure Rules
  • A first appellate court is entitled to re-evaluate and re-analyse the record and come to its own conclusion, bearing in mind that the trial judge had the advantage of seeing and assessing the demeanour of witnesses
  • An appellate court will not normally interfere with a finding of fact of the trial court unless it is based on no evidence, on a misapprehension of the evidence, or the judge demonstrably acted on a wrong principle

Court orders

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  1. 1.Retrial of the objection proceedings before a judge other than A. A. Aroni, J.
  2. 2.The incoming Judge to do all that is possible within his/her power to expeditiously conduct the retrial
  3. 3.The matter to be mentioned before the Presiding Judge, Bungoma High Court within 21 days from delivery of the judgment for purposes of directions as to the hearing
  4. 4.No order as to costs
On appeal from
High Court of Kenya at Bungoma, Family Division
Bungoma P&A Cause No. 112 of 2006
Jurisdiction invoked
First appeal under the Appellate Jurisdiction Act, sections 3(1) and 3(2), and Rule 3 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Francis Barasa Lurare & 1 other v Denis Nyongesa Maloba", Case Analysis (2020). Eldoret Civil Appeal No. 163 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/189/eng@2020-11-20

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