Sojanm Springfields Limited v Jane Wagathuitu Githinji & 4 others
The bottom line
#Kenya's Court of Appeal threw out a land dispute judgment because the judge's flawed site visit denied one side a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Proper conduct of locus in quo (site visit) proceedings during a hearing
A site visit forming part of the hearing requires sworn testimony, cross-examination, presence of all parties, full recording and communication of the court's observations; the trial Judge's site visit breached these requirements, was irregular and prejudicial, and vitiated the subsequent proceedings and judgment
The Court distinguished pre-hearing site visits (notes not evidence) from site visits during hearings, where witnesses must testify on oath and be cross-examined. Adopting guidelines from Kenya Bureau of Standards v Kwale International Sugar Company and the Tanzanian decision in Mantheakis, the Court found that witnesses testified without cross-examination, the Appellant could not adduce sworn evidence, and the Judge introduced new evidence by questioning bystanders, introducing findings not subject to the parties' testing.
Remedy for a trial vitiated by irregular procedure
The appropriate remedy is nullification of the trial proceedings, quashing of the judgment and an expedited retrial before another Judge, rather than adjudication of the merits
Since the integrity of the entire trial was compromised by the irregular site visit, the Court held it would be neither fair nor just to determine the remaining merits-based grounds arising from the vitiated proceedings. Exercising its powers under Rule 33(c) of the Court of Appeal Rules, 2022, it remitted the suit for retrial before a different Judge on a priority basis, with each party bearing its own costs given the circumstances.
Duty of the first appellate court
On a first appeal the Court of Appeal must reconsider and evaluate the evidence and draw its own conclusions, departing from trial findings only where they were not based on the evidence, were founded on wrong principles, or where discretion was exercised injudiciously
Citing Selle v Associated Motor Boats Co Ltd, Jabane v Olenja and Mbogo v Shah, the Court restated the standard of review applicable to first appeals. This framing preceded the procedural enquiry into the site visit rather than a full merits re-evaluation, since the procedural defect was found dispositive.
Legal principles established
#- A site visit (locus in quo) conducted during a hearing must accord the parties fair-hearing safeguards: all parties, witnesses and advocates present; testimony on oath; cross-examination; full recording; and the court's observations made known to the parties
- A court may not introduce new evidence during a site visit by questioning bystanders without giving parties an opportunity to comment, and proceedings so conducted are vitiated
- A court conducting a site visit must exercise care not to constitute itself a witness in the case
Court orders
#- 1.Set aside the entire proceedings of and judgment delivered by the Environment and Land Court at Nakuru (Munyao Sila J.) on 19th June 2019 in Nakuru ELC Case No 405 of 2017
- 2.Remit Nakuru ELC Case No 405 of 2017 back to the Environment and Land Court at Nakuru for a new trial to be held on a priority basis by a Judge other than Munyao Sila J., pursuant to Rule 33(c) of the Court of Appeal Rules, 2022
- 3.The suit to be mentioned before the Duty Judge of the ELC at Nakuru within 30 days of delivery of the judgment for directions regarding hearing and disposal
- 4.Each party to bear their own costs of the appeal and of the proceedings in the Environment and Land Court
- 5.The Deputy Registrar of the Court directed to immediately transmit the judgment to the Presiding Judge of the ELC at Nakuru
- On appeal from
- Environment and Land Court at Nakuru
- Nakuru ELC Case No 405 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 33(c) of the Court of Appeal Rules, 2022 invoked for remittal)
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.
- Ojwang v National Irrigation Authority & another (Environment & Land Case E010 of 2022) [2025] KEELC 217 (KLR)[2025] KEELC 217 (KLR)24 Jan 2025applied
Cite this brief
#Cite this brief
Caselaw, "Sojanm Springfields Limited v Jane Wagathuitu Githinji & 4 others", Case Analysis (2024). Nakuru ELC Case No 405 of 2017 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/953/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.