Loveridge v Kimani & 5 others
The bottom line
#The Court of Appeal threw out a land judgment because it was written by a judge who never heard the witnesses, ordering the case to start afresh.
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 trial judge, Naikuni J, who did not hear any witness, properly wrote and delivered the judgment when an express order directed Yano J, who heard all the witnesses, to write it
- 2.Whether counsel's failure to object to Naikuni J writing the judgment amounted to acquiescence or waiver
- 3.Whether the appeal should be determined on the substantive grounds or the judgment set aside on the procedural ground alone
Key legal issues
#Whether a judge who did not hear the witnesses may lawfully write the judgment where another judge was expressly directed to do so
The judgment written by a judge other than the one directed to write it, without that direction being set aside, is irregular and liable to be set aside on appeal.
Yano J heard all seven witnesses and expressly reserved writing of the judgment to himself despite his transfer. That order was never set aside. Naikuni J simply proceeded to write the judgment without varying the order or consulting counsel. The appellate court noted it would suffer the same handicap as Naikuni J in assessing the evidence, and concluded justice was better served by the judge who heard the witnesses concluding the matter.
Whether counsel's silence and complimentary remarks amounted to acquiescence in the change of judge
No acquiescence arose; counsel's failure to object and courtesy remark could not validate an irregular assumption of the judgment-writing role.
Counsel for Sheila was present when Naikuni J indicated he was writing the judgment and again at delivery, and made a complimentary remark. The court held that nothing much should turn on the courtesy, since the express order of 26th July 2021 had not been set aside and it was unclear whether Naikuni J was even aware of it. An unequivocal order varying the direction was required.
The appropriate final remedy where the judgment is set aside for the procedural irregularity
The matter is to be heard afresh by a judge other than Yano J and Naikuni J, rather than remitted to Yano J for judgment alone, because of the passage of time.
Although remitting to Yano J to write the judgment seemed the more reasonable course, the judge had last dealt with the matter in July 2021, over four years earlier, and his recollection of demeanour and trial dynamics may have faded. None of the parties argued they could not mount a retrial, so the court acceded to Sheila's prayer for a fresh hearing before a different judge.
Legal principles established
#- Where there is an express order that the judge who heard the witnesses write the judgment, that order must be varied or set aside by an equally unequivocal order before another judge may write the judgment; the incoming judge should at least seek the views of counsel.
- A courtesy compliment by counsel on a judgment cannot be taken as acceptance that the judge delivering it was properly seized of the matter where the prior order remained in place.
- Order 18 rule 8 of the Civil Procedure Rules permits a successor judge to deal with evidence taken by a predecessor, but the court will scrutinise whether the statutory route was properly invoked where an express contrary direction existed.
Court orders
#- 1.Appeal allowed to the extent that the judgment and orders made on 20th January 2022 in Mombasa ELC Case No 373 of 2009 are set aside
- 2.The matter is remitted to the Environment and Land Court for hearing afresh before any judge other than Yano, J and Naikuni, J
- 3.The matter shall be placed before the Presiding Judge of the Environment and Land Court, not later than 14 days from the date of the order, for directions on priority and expedited hearing
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Mombasa
- ELC Cause No. 373 of 2009
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Environment and Land Court (Court of Appeal, Mombasa)
Relief refused
#Remittal to Yano, J to simply prepare the judgment
The judge last dealt with the matter over four years earlier; the passage of time may have affected his recollection of the witnesses' demeanour and trial dynamics
Costs
Each party to bear their own costs
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.
In the end, we allow the appeal to the extent that we do hereby set aside the judgment and orders made on 20th January 2022, in Mombasa ELC Case No 373 of 2009.
The matter shall be remitted to the Environment and Land Court for hearing afresh before any judge other than Yano, J, and Naikuni, J.
Since no party can be blamed for this unfortunate set of circumstances, each shall bear their own costs.
Given our view, we refrain from considering the other grounds of the appeal and conclude that the judgment of 20th January 2022 is for setting aside.
we think that in the circumstances of this case in which there was an express order that the Judge who had heard all the witnesses, many lengthy, would be writing the Judgment, there needed to be an equally unequivocal order varying or setting aside the order.
Issues in the judgment
#The trial judgment's decretal order (c) directs the 4th defendant to vacate, though the appellant Sheila, not the 4th respondent, is the party in occupation; the order also misdescribes the certificate as issued to the 4th defendant.
The trial judgment's order (d) exonerates 'the 3rd defendant, Mr Hashim Got Sat', but Hashim Got Sat is the 4th respondent, indicating a numbering error in the impugned judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Loveridge v Kimani & 5 others", Case Analysis (2025). Civil Appeal E038 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2192/eng@2025-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.