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ELCOtherAppeal from CMCC No. 119 of 2017· [2022] KEELC 3519 (KLR)

Nathan v Njue (Environment and Land Appeal 24 of 2019) [2022] KEELC 3519 (KLR)

High Court of Kenya
21 June 2022
AKA.K. Kaniaru
1,310 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan High Court sent this unresolved land sale dispute back to the magistrates' court for a completely fresh trial because both sides agreed the original judgment settled nothing.

What this practically means

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Executive summary

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This was a first appeal to the High Court at Embu from the judgment of M.N. Gicheru, Chief Magistrate, in CMCC No. 119 of 2017, delivered on 26/8/2019. The dispute concerned ownership of a 0.05 ha portion of land parcel Ngandori/kirigi/8930, allegedly sold to the respondent for Kshs. 350,000 under an oral and written agreement requiring payment by end of December 2016 and equal sharing of survey costs. The appellant sued for refund of Kshs. 78,060, eviction, removal of a restriction on the register, and an injunction; the respondent denied breach, claimed she had paid the full purchase price and been placed in possession, and counterclaimed for specific performance (transfer of the land) or refund of Kshs. 525,000. The lower court dismissed both the suit and the counterclaim, leaving the dispute unresolved. On appeal, the appellant raised seven grounds attacking the magistrate's handling of evidence, the Land Control Act provisions, and the treatment of submissions. At the hearing on 17/5/2022, it emerged that both parties desired the judgment to be set aside and the matter heard afresh. The court, applying Section 78 of the Civil Procedure Act, agreed that a retrial was desirable in the interests of justice and held that the normal duty of a first appellate court to re-evaluate evidence (per Selle v Associated Motor Boat Co and Peter M. Kariuki v Attorney General) was not a compelling imperative given the parties' agreement. The court remitted the matter to the lower court for trial, granting both parties liberty to use prior evidence or adduce new evidence, and made no order as to costs.

Key legal issues

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01

Powers of the first appellate court under Section 78 of the Civil Procedure Act

Holding

Section 78 gives the appellate court various options including remanding the case and ordering a new trial; the court adopted the fresh-trial option consented to by both parties

Reasoning

The court noted that Section 78 permits determining the case finally, remanding it, framing issues for a new trial, or taking additional evidence. Since both parties during hearing indicated they wanted the lower court judgment set aside and the matter heard afresh, the court found the mutual choice desirable in the interests of justice because the judgment produced no winner and left the dispute unresolved.

p. 2
02

Whether the Selle v Associated Motor Boat Co retrial principles were applicable

Holding

The principles were not applied because the parties were agreed on the way forward

Reasoning

The court acknowledged the settled principles requiring a first appellate court to reconsider and re-evaluate evidence, but held that these dictates were not a compelling imperative where both parties consented to a retrial, and the court itself agreed the retrial was desirable in the interests of justice.

p. 3

Legal principles established

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  • Where parties mutually opt for a fresh trial on appeal, the appellate court is not bound to re-evaluate the evidence as normally required on a first appeal

Court orders

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  1. 1.The matter goes back to the lower court for trial and determination
  2. 2.Both parties shall be at liberty during trial to use the same evidence and/or materials they had used earlier and/or to call for additional or new evidence and/or materials
  3. 3.No order as to costs

Authorities

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Legislation

  • Land Control Act (Cap 302, Laws of Kenya)Sections 6, 7 and 80
  • Civil Procedure Act (Cap 21)Section 78

Cases cited (3)

  • Selle Vs Associated Motor Boat Co
    [1968] EA 123
  • Abdul Hameed Saif Vs Ali Mohamed Shollan
    [1955] 22 E.A.C.A. 270
  • Peter M. Kariuki Vs Attorney General
    [2014] eKLR
On appeal from
Chief Magistrate's Court
CMCC No. 119 of 2017
Jurisdiction invoked
Section 78 of the Civil Procedure Act (Cap 21) - first appellate jurisdiction

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, "Nathan v Njue (Environment and Land Appeal 24 of 2019) [2022] KEELC 3519 (KLR)", Case Analysis (2022). Appeal from CMCC No. 119 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3519/eng@2022-06-21

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