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ELCOtherNot stated in judgment· [2020] KEELC 153 (KLR)

Loise Wanja Rugendo & another v Festus Mbaka Murango & 3 others [2020] KEELC 153 (KLR)

Environment and Land Court
16 December 2020
PNP. M. Njoroge
7,148 words in judgment
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The bottom line

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A Kenyan land dispute appeal ended in a retrial: the court found the evidence too murky to decide, and ordered the case heard afresh by a different magistrate.

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 Chuka against the judgment of Hon. Sudi (M/S) SRM delivered on 23 June 2020, which dismissed the appellants' suit concerning parcels of land arising from the subdivision of Magumoni/Makuuni 672. The appellants, the widow and son of the late Njagi Kaburi, alleged that the respondents fraudulently and irregularly transferred parcels 1277, 1279 and 1280 to themselves and third parties in 2012, 2013 and 2017 without spousal consent, relying on allegedly forged signatures, differing KRA PINs and irregular Land Control Board consents, while the deceased was paralysed after a stroke from 2011 until his death in June 2018. They sought to have the appeal allowed, the lower court judgment set aside and an injunction restraining interference with parcels 1277 and 1280. The respondents supported the lower court judgment, contending that the transfers were lawful, that no expert evidence of forgery was called, and that fraud was not proved to the required standard. Njoroge J found no evidence of bias by the trial magistrate, noted that the appeal prayers were at material variance with the prayers in the plaint, and concluded that the evidence raised more questions than answers. Declining to either allow or dismiss the appeal, the court exercised its powers under Section 78 of the Civil Procedure Act and ordered a new trial at Chuka Law Courts before a magistrate other than Hon. Sudi, framed the issues for the retrial, directed the Chief Magistrate to ensure the retrial was concluded within one year, and ordered that costs of the appeal be in the eventual cause and follow the event.

Key legal issues

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01

Alleged bias by the trial magistrate

Holding

The court found no evidence of bias on the part of the presiding magistrate.

Reasoning

The appellants had alleged in the memorandum of appeal that the trial magistrate expressed outright bias. The court on review of the record found no evidence supporting that allegation, observing that where it is one side's word against the other's, definitive findings of bias are very difficult to make.

p. 9
02

Appropriate disposition where evidence is inconclusive on appeal

Holding

The court declined to allow or dismiss the appeal and instead exercised its powers under Section 78 of the Civil Procedure Act to order a new trial before a different magistrate.

Reasoning

The court found the dispute a family fight between close relatives where allegations of fraud had been made but the record amounted essentially to one side's word against the other's. Rather than determine contested facts afresh, it ordered a retrial with all issues (including those raised in the appeal) to be tried within one year.

p. 10
03

Variance between the prayers in the appeal and the prayers in the plaint

Holding

The court noted that the prayers in the appeal were at material variance with the prayers in the plaint.

Reasoning

The court observed that the relief sought on appeal (setting aside judgment and an injunction over Magumoni/Makuuni 1277 and 1280) did not match the relief in the originating plaint, a factor contributing to its decision not to grant the substituted relief sought.

p. 10

Legal principles established

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  • An appellate court may order a new trial under Section 78 of the Civil Procedure Act where the evidence either way raises more questions than answers
  • A magistrate who heard and determined a suit ought not to preside over a retrial of the same dispute

Court orders

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  1. 1.A new trial ordered at Chuka Law Courts to be presided over by a magistrate with requisite pecuniary jurisdiction other than Hon. Sudi, who heard the original suit
  2. 2.Issues at the new trial framed as all issues raised in the original plaint, defence and all issues raised in the grounds of appeal
  3. 3.The Chief Magistrate, Chuka Law Courts, to ensure the new trial is conducted expeditiously, latest within one year of the judgment
  4. 4.Costs of the appeal to be in the eventual cause and to follow the event
On appeal from
Chief Magistrate's Court, Chuka Law Courts
Not stated
Jurisdiction invoked
Section 78 of the Civil Procedure Act (appellate powers of the High Court/ELC); appeal from the judgment of Hon. Sudi SRM delivered 23/6/2020

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, "Loise Wanja Rugendo & another v Festus Mbaka Murango & 3 others [2020] KEELC 153 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/153/eng@2020-12-16

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