Peter Makundi Ngusa & 2 others v Francis Kaloki Muthoka [2022] KEELC 1522 (KLR)
The bottom line
#Kenya's High Court ruled a surveyor's report cannot become a court judgment unless the party disputing it gets a chance to challenge it first.
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 magistrate/court followed due process in adopting the District Surveyor's report as the judgment of the court
- 2.Whether the Appellants were denied the right to a fair hearing (opportunity to testify, call witnesses and cross-examine the District Land Surveyor) before the report was adopted
Key legal issues
#Fair hearing before adoption of an expert report as judgment
The trial magistrate erred in adopting the District Land Surveyor's report as the court's judgment without affording the Appellants, who disputed the report, an opportunity to testify, call witnesses and cross-examine the surveyor.
The record showed the Appellants' counsel expressed dissatisfaction with the surveyor's report at the hearing on 19/06/2019, yet the magistrate immediately rendered judgment adopting the report. Article 50 guarantees every person a fair and public hearing, including the right to adduce and challenge evidence. Denying the party opposing the report the chance to test it by cross-examination violated the audi alteram partem rule and the rules of natural justice.
Jurisdiction over boundary disputes of registered land
Boundary disputes over registered land fall within the mandate of the Land Registrar under Sections 18 and 19 of the Land Registration Act, and the court may not entertain such disputes until boundaries have been determined under that regime.
The court noted Section 18(2) bars courts from entertaining boundary disputes unless the boundaries have first been determined under Section 18, and Section 19 requires the Registrar to hear all persons appearing in the register, cause the boundaries to be defined by survey, file a plan and note the fixing in the register. Here a boundary dispute existed between the two parcels and a survey was conducted pursuant to court directions.
Duty of a first appellate court
A first appeal is by way of retrial; the appellate court must reconsider and evaluate the evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses.
Relying on Stella and Another v Associated Motor Boat Company and Others (1968) 1 EA 123, the court set out the settled principles governing first appeals. This framed the scope of the court's review of the trial magistrate's decision to adopt the surveyor's report without hearing the disputing party.
Legal principles established
#- A litigant who disputes a surveyor's report must be given an opportunity to give evidence, call witnesses and cross-examine the surveyor before the report may be adopted as a judgment; adopting it without such opportunity breaches natural justice.
- Land Registrars are mandated under Sections 18 and 19 of the Land Registration Act to determine boundary disputes, and courts should not entertain boundary disputes over registered land unless the boundaries have been determined under Section 18.
- On a first appeal, the High Court has a duty to evaluate, assess and analyse the evidence on record and make its own decision, as by way of retrial.
Court orders
#- 1.The judgment and decree of Hon. James Mwaniki (Chief Magistrate) dated 18th June 2019 is set aside
- 2.A new trial is ordered at Makueni law courts to be presided over by a magistrate other than Hon. J Mwaniki
- 3.Each party shall bear its own costs of the appeal
- 4.Mention by consent on 29th of March 2022 before Hon. Sagero for directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Makueni
- Makueni Civil Case No. 113 of 2013
- Jurisdiction invoked
- First appeal to the High Court from the subordinate court (Civil Procedure Act); appeal canvassed by way of written submissions
Relief refused
#Retrial before the High Court as sought by the Appellants
The court ordered the retrial at the Makueni law courts before a different magistrate rather than in the High Court
Costs
Each party shall bear its own costs of the appeal.
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.
I find that the Appellants were not given an opportunity to challenge the report before it was adopted as the judgment of the court which is a breach of the rules of natural justice.
The right to fair trial is secured in Article 50 of the Constitution
The upshot of the fore going is that the court finds merit in the appeal and the same is allowed in the following terms: a) The judgment and decree of Hon. James Mwaniki (Chief Magistrate) dated 18th June 2019 is hereby set aside.
A new trial is ordered at Makueni law courts to be presided over by a magistrate other than Hon. J Mwaniki.
The rules of Natural Justice require that the court must not necessarily drive any litigant from the seat of justice without a hearing however weak his or her case may be.
Issues in the judgment
#Inconsistent citation of the Minister's appeal number - the Appellants refer to Appeal No. 613 of 1996 in one passage and Appeal No 612/96 in another
Date discrepancy in the District Land Surveyor's report - the record states the surveyor visited the land on the 14th of June 2019 yet the report is dated 17th of May 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Makundi Ngusa & 2 others v Francis Kaloki Muthoka [2022] KEELC 1522 (KLR)", Case Analysis (2022). Civil Appeal (Makueni) — Appeal against judgment in Makueni Civil Case No. 113 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1522/eng@2022-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.