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ELCAllowedEnvironment and Land Appeal E003 of 2023· [2023] KEELC 21537 (KLR)

Ohando v Akama & 4 others

Environment and Land Court
16 November 2023
AKA. Y. Koross
2,322 words in judgment
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The bottom line

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A Kenyan court ruled that civil cases should not restart from scratch when a magistrate is transferred, unless continuing the case is genuinely impossible.

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 Siaya against a ruling of Hon. M. O. Wambani, CM, delivered on 18/08/2022 in Siaya ELC Case No. 76 of 2019, allowing the 1st and 2nd respondents' notice of motion dated 02/02/2022 seeking that the suit be heard de novo following the transfer of the trial magistrate, Hon. Ong'ondo, after he had taken the appellant's evidence. The appellant contended the trial court failed to apply Order 18 Rule 8(1) of the Civil Procedure Rules, which permits a successor to proceed with evidence taken by a predecessor, and that allegations of bias were unsubstantiated. The respondents relied on Article 50(1) of the Constitution and Mbogo v Shah, urging the appellate court not to interfere with a judicially exercised discretion. Koross, J, adopting the consolidated ground of appeal as the sole issue, held that in civil cases a de novo hearing is not a matter of right as it is under Section 200(3) of the Criminal Procedure Code; the successor court must first satisfy itself that it cannot proceed from where the predecessor left off. The trial court never expressed such incapacity, and the respondents' allegations of bias and misconduct were red herrings that should have grounded a recusal application. Balancing fair hearing rights against expeditious disposal under Article 159(2)(b) and Sections 1A and 1B of the Civil Procedure Act, and noting the appellant would be prejudiced, the court found the trial court erred. The appeal was allowed with costs, the impugned ruling set aside, the motion dismissed with costs, and the suit directed to be heard on a priority basis.

Key legal issues

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01

Whether the trial court properly exercised its discretion in ordering the suit to be heard de novo

Holding

The trial court erred; it failed to satisfy itself that it could not proceed from where the predecessor left off, and should have applied the overriding objective and declined the de novo request.

Reasoning

Order 18 Rule 8(1) of the Civil Procedure Rules permits a successor judicial officer to proceed with evidence taken by a predecessor. The trial court never expressed incapability of continuing; the de novo request emanated from the bar. Allegations of bias and misconduct against the transferred magistrate were untenable as they were never raised before him and should have grounded a recusal application. The appellant had testified and would be prejudiced; the suit had pended since 2019.

02

Whether allegations of bias and improper conduct against the former trial magistrate justified a de novo hearing

Holding

No; such grounds were red herrings and should have been raised by way of recusal or disqualification application while the magistrate was still seized of the matter.

Reasoning

The 1st and 2nd respondents never applied for recusal and appeared before Hon. Ong'ondo on diverse dates seeking adjournments without questioning his conduct. Issues of bias, impartiality and intimidation of counsel are governed by Regulations 9 and 21 of the Judicial Service Code of Conduct and Ethics Regulations 2020 and are addressed through recusal, not a de novo application after transfer.

p. 4

Legal principles established

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  • In civil cases, unlike criminal trials, a de novo hearing is not a matter of right; the successor court must first satisfy itself that it cannot proceed from where its predecessor left off.
  • An order for de novo hearing must be balanced against the right to expeditious disposal under Article 159(2)(b) and the overriding objective in Sections 1A and 1B of the Civil Procedure Act.

Court orders

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  1. 1.The appeal succeeds with costs to the appellant
  2. 2.The impugned ruling of the trial court is set aside and substituted with an order dismissing the notice of motion dated 02/02/2022 with costs to the appellant
  3. 3.The suit be set down for hearing on priority basis

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(b)
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 18 Rule 8(1)
  • Civil Procedure RulesOrder 18 Rule 10
  • Criminal Procedure CodeSection 200(3)
  • Judicial Service (Code of Conduct and Ethics) Regulations 2020Regulations 9 and 21, Part II

Cases cited (5)

  • Wycliffe Mwavali Ondari v County Council of Narok & another
    [2022] eKLR

    Principles guiding whether a matter should proceed de novo.

  • Kalpana Rawal v Judicial Service Commission & 2 others
    [2016] eKLR

    Relied on by appellant's counsel on bias/recusal of judicial officers.

  • Mbogo & another v Shah
    [1968] EA p. 15

    Appellate court will not lightly interfere with exercise of trial court discretion absent misdirection.

  • Selle v Associated Motor Boat Co.
    [1968] EA 123

    Duty of a first appellate court to re-evaluate and reassess the evidence.

  • Hussein Khalid and 16 others v Attorney General & 2 others
    [2020] eKLR

    Preference that the judicial officer who heard a case decide it, to avoid prejudice from a successor.

On appeal from
Chief Magistrate's Court at Siaya
Siaya ELC Case Number 76 of 2019
Jurisdiction invoked
First appeal to the Environment and Land Court from the subordinate court (leave to appeal granted 29/12/2022)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ohando v Akama & 4 others", Case Analysis (2023). Environment and Land Appeal E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21537/eng@2023-11-16

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