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ELCDismissedELC APPEAL NO. 7 OF 2021 (Formerly Kakamega ELC Appeal No. 12 of 2020)· [2021] KEELC 539 (KLR)

Evans Mudoga Matebwa v Peter Asingira Ondiri [2021] KEELC 539 (KLR)

Environment and Land Court of Kenya
25 November 2021
EAE. Asati
2,510 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 dismissed a landowner's appeal, confirming that courts will only reopen decided cases where an obvious error on the record exists.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Vihiga by the defendant in the subordinate court, challenging a ruling of Hon. S. O. Ongeri PM dated 28 April 2020 dismissing his application for review of a judgment entered on consent. The underlying suit was a claim for a permanent injunction restraining the appellant from trespassing on parcel KAKAMEGA/MASANA/1208, in which the parties by consent adopted a county surveyor's report as expert evidence, whereupon judgment was delivered on 1 October 2019 allowing the plaintiff's claim. The appellant sought review on the ground of error apparent on the face of the record, contending that the respondent pleaded ownership of a different parcel (1211), that the surveyor was not cross-examined, and that he was denied a hearing. The ELC, through E. Asati J, framed three issues: whether the grounds for review were satisfied, whether the trial court erred in dismissing the application, and costs. Applying the first appellate duty to reconsider the evidence, and the Order 45 grounds, the court held that the suit land was identifiable, that the consent order never required the surveyor's attendance for cross-examination, and that the consent determining the trial defeated the claim of breach of the right to be heard. Relying on the distinction between an erroneous decision and an error apparent on the face of the record, the court found none of the appeal grounds proved and dismissed the appeal, with each party bearing its own costs.

Key legal issues

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01

Whether the appellant established an error apparent on the face of the record warranting review of the judgment

Holding

No error apparent on the face of the record was established; the suit land was identifiable, the surveyor was never required by consent to be cross-examined, and the consent order concluded the trial without breach of the appellant's rights

Reasoning

The court examined the plaint, the consent orders and the survey referral. Although the Respondent pleaded ownership of parcel 1211 in one paragraph, paragraph 4 and the prayers concerned parcel 1208, and the consent referral defined the dispute as between 1208 and 1211, so the suit land was identifiable to all parties. The consent deeming the surveyor's report expert evidence contained no term requiring his attendance for cross-examination. Because the parties' consent determined the trial, the claim of denied hearing failed. The appellant therefore proved none of the Order 45 grounds.

p. 3
02

Whether the trial court erred in dismissing the application for review

Holding

The trial court properly exercised its discretion; dismissal was the order that commended itself once the appellant failed to prove any ground for review

Reasoning

The court found no failure by the magistrate to analyse the evidence, no unaddressed substantial issues on pleadings, and no miscarriage of justice. Since the appellant proved none of the grounds for review, dismissal was the correct order. The appeal, being against the review ruling and not the judgment itself, had to be evaluated on the review application materials only, and none of the grounds was proved.

p. 4

Legal principles established

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  • A first appellate court must reconsider and evaluate the evidence and reach its own independent conclusions while making allowance for not having seen or heard the witnesses
  • An error apparent on the face of the record is one that is self-evident and does not require a long drawn process of reasoning
  • An application for review will only be allowed on very strong grounds, particularly if its effect is to reopen a case afresh

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear own costs
On appeal from
Vihiga Principal Magistrate's Court
VIHIGA PMC (EL) CASE NO. 60 OF 2018
Jurisdiction invoked
First appeal to the Environment and Land Court under the ELC's appellate jurisdiction (from a ruling on an application for review in Vihiga PMC (EL) Case No. 60 of 2018)

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, "Evans Mudoga Matebwa v Peter Asingira Ondiri [2021] KEELC 539 (KLR)", Case Analysis (2021). ELC APPEAL NO. 7 OF 2021 (Formerly Kakamega ELC Appeal No. 12 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/539/eng@2021-11-25

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