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ELCAllowedEnvironment and Land Appeal 4 of 2019· [2023] KEELC 22009 (KLR)

Sagara v Wafula

Environment and Land Court at Kitale
5 December 2023
3,275 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 in Kitale reinstated a landowner as a defendant, ruling that new evidence of disputed land ownership meant all claimants deserved their day in court.

What this practically means

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Executive summary

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The Appellant sued Joel Wafula, Ebrahim Ambwere and Simon Ludeki in Kitale CMCC Land Case No. 47 of 2019 over ownership of Trans-Nzoia/Liyavo/245, pleading that he bought the land from Ambwere, who held Ludeki's title as security for rent arrears. He sought a permanent injunction against eviction, a declaration of entitlement to remain, or alternatively a refund of the purchase price and value of developments. Wafula's application to strike out the Plaint was allowed on 31/10/2019 on the basis that he was the indefeasible absolute owner and not a necessary party. The Appellant's application to review that ruling, supported by new DCI witness statements - Ludeki denying he ever sold the land to Wafula, his wife's statement, and Ambwere's admission of receiving KShs.800,000 from the Appellant - was dismissed on 10/02/2021, the trial court holding the new evidence did not cure non-compliance with Section 3(3) of the Law of Contract Act and that the remedy lay in appeal. On appeal, Nyagaka J restated the first appellate court's duty and the restraint owed to discretionary decisions, but found the new evidence compelling and within Order 45 Rule 1. The statements pointed to a multiplicity of transactions and a contest over ownership, making Wafula a necessary party whose presence was required so claims could be tested by cross-examination, consistent with the overriding objective in sections 1A and 1B of the Civil Procedure Act. The appeal was allowed: the ruling of 10/02/2021 was set aside insofar as it excluded the Respondent, Wafula was reinstated as 1st Defendant, with costs of the review application and of the appeal to the Respondent and Appellant respectively.

Key legal issues

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01

Whether the trial court erred in dismissing the Appellant's application for review

Holding

The trial court erred; the new evidence (statements of the 3rd Defendant, his wife and the 2nd Defendant) met Order 45 Rule 1 and pointed to a contest over ownership of the suit land, making the Respondent a necessary party who should be reinstated.

Reasoning

The Court re-evaluated the new material annexed to the Review Application. The 3rd Defendant's DCI statement denied ever selling the land to the Respondent, whose title acquisition was thus questionable. The 2nd Defendant's statement admitted receiving KShs.800,000 from the Appellant. This was new and important matter within Order 45 Rule 1. The overriding objective in sections 1A and 1B of the Civil Procedure Act required all necessary parties to be before the court so their claims could be tested by cross-examination.

p. 5
02

The duty of a first appellate court on an appeal against exercise of discretion

Holding

The first appellate court must revisit and evaluate the evidence afresh but will not interfere with a discretionary decision absent misdirection, a wrong decision, or clear wrong occasioning injustice.

Reasoning

Relying on Okemo v Republic, Mark Oiruri Mose v R, KRA v Darasa Investments and Coffee Board v Thika Coffee Mills, the Court restated the standard. Since the appeal attacked the trial court's discretionary refusal of review, the Court asked whether the discretion was exercised judiciously, found it was not, and held the trial court fell into error in rejecting the review.

Legal principles established

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  • A first appellate court should not interfere with a trial court's exercise of discretion unless it misdirected itself, arrived at a wrong decision, or was clearly wrong and occasioned injustice.
  • A decision on review under Order 45 of the Civil Procedure Rules is discretionary in nature.

Court orders

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  1. 1.The Ruling of the Lower Court delivered on 10th February 2021 is set aside insofar as it excluded the Respondent's participation in Kitale Chief Magistrates Land Case No. 47 of 2019
  2. 2.An Order reinstating Joel Wafula as the 1st Defendant in Kitale Chief Magistrates Land Case No. 47 of 2019
  3. 3.Costs of the Application in Kitale CM Land Case No. 47 of 2019 to be borne by the Respondent
  4. 4.Costs of the instant appeal to the Appellant

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1 and 2
  • Civil Procedure ActSections 1A(1)(2), 1B(1)(a)-(d)
  • Law of Contract ActSection 3(3)

Cases cited (5)

  • Okemo -vs- Republic
    (1977) EALR 32

    Duty of a first appellate court to revisit and evaluate evidence afresh.

  • Mark Oiruri Mose -vs- R
    [2013] eKLR

    First appellate court's duty; non-interference with trial court discretion absent misdirection or injustice.

  • Kenya Revenue Authority & 2 Others V Darasa Investments Limited
    [2018] Eklr

    That a decision on review is discretionary.

  • Coffee Board Of Kenya Vs. Thika Coffee Mills Limited & 2 Others
    [2014] EKLR

    Same proposition on the discretionary nature of review decisions.

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others
    [2013] eKLR, Civil Appeal (Application) 228 of 2013

    Essence of the overriding objective - fair, just, speedy, proportionate and cost-saving disposal of cases.

On appeal from
Chief Magistrate's Court at Kitale
CMCC Land Case No. 47 of 2019
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's ruling (Environment and Land Court Act)

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, "Sagara v Wafula", Case Analysis (2023). Environment and Land Appeal 4 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22009/eng@2023-12-05

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