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ELCAllowedELC Appeal No. 9 of 2017 (Nakuru HCA No. 107 of 2013)· [2018] KEELC 1710 (KLR)

Supeyo Ole Nkako v Parmayian Ole Nkako [2018] KEELC 1710 (KLR)

Environment and Land Court
9 August 2018
MKMohammed Noor Kullow
1,003 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Narok threw out a land judgment because the trial court decided the case without hearing any witness testimony, ordering a fresh hearing.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Narok against the judgment and decree of the Narok SPM Court in Civil Case No. 71 of 2011, in which the appellant's suit over parcels of land was dismissed with costs to the defendant. The appellant raised four grounds, all resting on the contention that the trial court dismissed the suit without any hearing: no oral evidence was led, no title documents were considered, the suit land was still subject to adjudication, and the court decided the case on pleadings, documents and submissions alone. The respondent maintained that witness testimony had been taken and that the plaintiff had failed to prove ownership of parcels Nos. 663 and 392. The judge perused both the record of appeal and the original trial file and quoted the proceedings of 7/11/12, 28/11/12 and 5/12/12 verbatim. Those proceedings showed the case was adjourned, then the parties agreed to file witness statements, documents and submissions, which were adopted as evidence, after which a judgment date was set without any testimony being recorded. Holding that this could not be called a hearing and that even the parties' consent to adopt statements was not proper in a substantive suit with contentious issues, the court found the appellant had not been accorded an opportunity to be heard. The appeal was allowed, the trial suit was ordered to be heard afresh under the Civil Procedure Act, and each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Whether the suit was dismissed without a hearing on the merits, breaching the right to be heard

Holding

The trial court's disposal of the suit by adopting filed witness statements and documents as evidence, without taking any oral testimony, did not amount to a hearing; the appellant was not accorded an opportunity to be heard

Reasoning

The court examined the record of appeal and the original trial file, quoting the proceedings of 7/11/12, 28/11/12 and 5/12/12 verbatim. Those proceedings showed no testimony was taken; the parties merely filed statements, documents and submissions and a judgment date was set. The court held that even though both parties consented to statements being adopted, that was not a proper hearing in a substantive suit with contentious issues, which could readily be determined if the Land Adjudication Officers were called to testify.

p. 3

Legal principles established

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  • A party must be accorded the right to be heard in evidence, and disposal of a suit by adopting filed statements and submissions without taking testimony is not a proper hearing

Court orders

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  1. 1.The Appeal is allowed
  2. 2.Narok Civil Suit No. 71 of 2011 to be heard afresh in accordance with the provisions of the Civil Procedure Act
  3. 3.Each party to bear its own costs of the Appeal

Authorities

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Legislation

  • Civil Procedure Actnot specified
On appeal from
Narok SPM Court
Civil Case No. 71 of 2011
Jurisdiction invoked
First appeal to the Environment and Land Court against the judgment and decree of Narok SPM Court in Civil Case No. 71 of 2011

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, "Supeyo Ole Nkako v Parmayian Ole Nkako [2018] KEELC 1710 (KLR)", Case Analysis (2018). ELC Appeal No. 9 of 2017 (Nakuru HCA No. 107 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1710/eng@2018-08-09

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