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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 724 (KLR)

Odhier v Onyango & another (Environment and Land Appeal E009 of 2023) [2024] KEELC 724 (KLR)

High Court of Kenya
15 February 2024
AKA. Y. Koross
2,156 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Siaya court confirmed that disputes with seriously contested facts must be resolved through witness testimony, not written submissions, despite a magistrate's oversight.

What this practically means

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Executive summary

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This is a ruling of the High Court at Siaya (A. Y. Koross, J) delivered on 15 February 2024 on an interlocutory appeal against a trial magistrate's ruling. On 6/10/2022 the trial magistrate had directed that the appellant's originating summons seeking removal of a caution over land parcel East Alego/Nyandiwa/3185 and a permanent injunction be disposed of by written submissions. Subsequently, in an impugned ruling, the magistrate directed the matter proceed by viva voce evidence and expunged the appellant's filed submissions, reasoning it would be fair and just. The appellant appealed on four grounds, faulting the fresh directions, the finding that a prayer for written submissions was pending, the expungement, and misapplication of judicious discretion, relying on Mbogo & another v Shah. The court identified three issues: whether a prayer for disposal by written submissions was pending, whether the magistrate exercised judicious discretion properly, and what orders should issue. The court held there was no pending prayer as the earlier directions had been overlooked. However, applying the settled principles on appellate interference with discretionary decisions, and Order 37 Rules 18 and 19 of the Civil Procedure Rules, the court held that where rival affidavits raise seriously contested facts, viva voce evidence is appropriate, and the trial magistrate's discretion, though affected by curable technical errors, would not be disturbed. The appeal was allowed in part: the order for disposal by written submissions was set aside, and the trial court was directed to give directions for the suit to proceed by viva voce evidence, with the OS deemed a plaint and the replying affidavit a defence, and to issue Order 11 pre-trial directions. Each party was ordered to bear their respective costs of the appeal.

Key legal issues

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01

Whether there was a pending prayer for disposal of the OS by written submissions

Holding

There was no pending prayer; the prayer had been granted on 6/10/2022 and the trial magistrate overlooked her earlier directions

Reasoning

The record showed that on 6/10/2022 the appellant's counsel sought and obtained an order that the OS be disposed of by written submissions. Once granted, that order could only be set aside and fresh directions issued. The impugned ruling never referred to the earlier directions, indicating oversight. Consequently the trial magistrate erred in treating the prayer as pending before her.

p. 3
02

Whether the trial magistrate exercised her judicious discretion properly

Holding

Yes - despite overlooking the earlier directions, her direction for viva voce evidence was justified given the seriously contested facts in the rival affidavits

Reasoning

Order 37 Rule 19(1) permits the court, where facts are disputed, to order the proceedings to continue as if begun by plaint. The rival affidavits raised serious contested issues - the respondent claimed occupation as of right since a 1972 purchase. Viva voce evidence was the fair and just mode of resolving these disputes. The technical errors were curable under Order 42 Rule 32.

p. 5

Legal principles established

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  • An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision is plainly wrong
  • Where serious questions or disputed facts exist, an originating summons may be converted to proceed as if begun by plaint under Order 37 Rule 19(1) of the Civil Procedure Rules

Court orders

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  1. 1.The order directing the OS to be canvassed by written submissions is set aside
  2. 2.The matter be mentioned before the trial court for purposes of directions as to the hearing and disposal of the suit by viva voce evidence
  3. 3.The trial court do give directions as to deeming the OS a plaint and replying affidavit a defence
  4. 4.The trial court do issue pre-trial directions as envisaged by Order 11 of the Civil Procedure Rules
  5. 5.Each party shall bear their respective costs of the appeal
On appeal from
Trial Court (magistrates' court)
Originating Summons dated 16/08/2022
Jurisdiction invoked
First appeal under Order 42 Rule 32 of the Civil Procedure Rules

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, "Odhier v Onyango & another (Environment and Land Appeal E009 of 2023) [2024] KEELC 724 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/724/eng@2024-02-15

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