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ELCAllowedEnvironment and Land Appeal 12 of 2020· [2022] KEELC 14477 (KLR)

Ochieng v Awori

Environment and Land Court of Kenya
27 October 2022
FNFred Nyagaka
3,454 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a land judgment decided without a full hearing, confirming no one can lose property based on reports that were never properly tested as evidence.

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 Kitale against a ruling delivered as a judgment by Hon. S. N. Makila (Principal Magistrate) in Kitale CMCC No. 85 of 2019 on 16 December 2020, in which the trial court ordered the Defendant (Appellant) to remove structures built on a road reserve blocking the Plaintiff's (Respondent's) access to parcel Kiminini/Kinyoro Block 3/Matisi/540, failing which the OCS Kitale and the Assistant County Commissioner were directed to evict him at his own cost. The Appellant contended that judgment was entered in incipient proceedings based on the County Surveyor's Report of 23/10/2020 and the Land Registrar's Report of 12/09/2017 without a full hearing, infringing his right to a fair hearing. Nyagaka J held that the trial court exercised its discretion injudiciously: it went beyond its own directions, relied on a report that was never produced or proved in evidence and thus had no evidentiary value, entered judgment on orders no party had prayed for and which were not in the Plaint, and failed to test serious allegations in the reports through cross-examination. The court applied Article 50(1) of the Constitution and the Pinnacle Projects formulation of fair trial in civil cases, holding that a trial must precede judgment. The appeal was allowed: the ruling and all consequential orders and proceedings were set aside, the County Surveyor's Report was to be considered afresh, the matter was remitted for fresh hearing before a different judicial officer, and the Appellant received the costs of the appeal.

Key legal issues

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01

Entry of judgment without a full hearing

Holding

The trial court exercised its discretion injudiciously by entering judgment at a nascent stage on reports without viva voce evidence, when no party had prayed for the orders granted

Reasoning

The trial court directed parties to file recommendations on the County Surveyor's Report but then went beyond its own directions, relying on an earlier Land Registrar's Report to conclude the case. The case was still in its nascent stage, the impugned orders were not pleaded in the Plaint, and serious allegations in the report, such as collusion by a surveyor, required testing through cross-examination of the maker before final orders could issue.

p. 4
02

Evidentiary value of unproved documents

Holding

The County Surveyor's Report of 23/10/2020 was never produced or proved in evidence and therefore had no evidentiary value on which judgment could rest

Reasoning

The report was filed in the registry and parties were directed to peruse and give recommendations, but it was neither marked for identification nor produced and proved. The court restated the four-step procedure for proving documentary evidence from Sofie Feis Caroline Lwangu v Benson Wafula Ndote and found the trial magistrate failed to process the report in that manner before relying on it.

p. 6
03

Right to a fair hearing in civil proceedings

Holding

Article 50(1) guarantees a fair hearing in civil cases, including the right to adduce and challenge evidence, and under Article 25(c) it cannot be limited

Reasoning

The court adopted the Pinnacle Projects formulation that fair trial in civil cases includes access to a court, an impartial tribunal, equality of arms, and the right to adduce and challenge evidence. By entering judgment without hearing both parties on the evidence, the trial court denied the Appellant this constitutional right, warranting setting aside of the judgment and a fresh hearing before a different judicial officer.

p. 5
04

First appellate court's duty on re-evaluation of evidence

Holding

A first appellate court must re-evaluate the evidence before the trial court but will not interfere with the exercise of discretion unless it was exercised injudiciously

Reasoning

Relying on Kiriisa v Attorney General and Mbogo v Shah, the court restated that an appellate court will not interfere with discretionary decisions unless the discretion was misdirected, arrived at a wrong decision, or was clearly wrong resulting in injustice. Applying that standard, the court found the trial magistrate's discretion was exercised injudiciously and interfered with the decision.

p. 3

Legal principles established

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  • A document filed in court but neither marked for identification nor produced and proved in evidence has no evidentiary value and cannot form the basis of a judgment
  • A trial of the claim must precede judgment; parties must be afforded the opportunity to adduce and challenge evidence before final determination
  • Submissions do not constitute evidence and documents annexed to submissions cannot be treated as evidence

Court orders

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  1. 1.The Ruling delivered as a judgment on 16/12/2020 and all consequential orders, and the proceedings leading thereto, be and are hereby set aside
  2. 2.The County Surveyor's Report dated 23/10/2020 be considered afresh, if need be, and any recommendations thereon by parties as may be delineated in their submissions be determined
  3. 3.The matter shall be placed for fresh hearing and determination before any other judicial officer vested with jurisdiction than the trial Magistrate
  4. 4.The Appellant shall have the costs of this Appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 159(2)(a)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Land Registration ActSection 18(2)
  • Land Registration ActSection 19(2)
  • Civil Procedure RulesOrder 11

Cases cited (5)

  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR

    Submissions are parties' marketing language and do not constitute evidence

  • Kiriisa vs. Attorney General & Another
    [1990-1994] EA 244

    First appellate court will not interfere with discretion unless exercised injudiciously

  • Mbogo & Another vs. Shah
    [1968] EA 93

    Elements for consideration in dealing with adjournment applications

  • Pinnacle Projects Limited vs. Presbyterian Church of East Africa, Ngong Parish and another
    [2018] eKLR

    Scope of the right to fair trial in civil proceedings under Article 50

  • Sofie Feis Caroline Lwangu v Benson Wafula Ndote
    [2022] eKLR

    Four-step procedure for proof of documentary evidence

On appeal from
Principal Magistrate's Court at Kitale
CMCC No. 85 of 2019
Jurisdiction invoked
First appellate jurisdiction over appeals from the magistrates' court in environment and land matters; Article 159(2)(d) of the Constitution invoked in admitting a supplementary record of appeal

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, "Ochieng v Awori", Case Analysis (2022). Environment and Land Appeal 12 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14477/eng@2022-10-27

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