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ELCPartially AllowedNarok ELC Appeal (memorandum of appeal dated 10th May, 2022, against judgment in Narok CMCC ELC No 6 of 2018)· [2024] KEELC 1170 (KLR)

Kenya Wildlife Service v Ole & 2 others (Environment and Land Appeal E004 of 2022) [2024] KEELC 1170 (KLR)

Environment and Land Court
5 March 2024
3,175 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a land case judgment because the record was incomprehensible, ordering a fresh trial before a different magistrate.

What this practically means

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Executive summary

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The Environment and Land Court at Narok (Mbogo C.G., J) allowed an appeal against the judgment of the Chief Magistrate's Court in Narok CMCC ELC No 6 of 2018 delivered on 13th April 2022 by Hon. G.N. Wakahiu (Chief Magistrate). The suit, filed in 2009, was brought by the 1st respondent, the registered owner of Narok/Siabei/62, seeking eviction of the defendants, a permanent injunction against trespass, and compensation of Kshs 1,400,000/- for alleged compulsory acquisition of his parcel. The appellant, which claimed to have occupied Narok/Siabei/46 since 1975 at the invitation of the local community and the AIC church, plus the 2nd respondent (the area chief/Attorney General's office), denied encroachment. The trial court awarded the 1st respondent Kshs 1,500,000/- general damages, prompting this appeal on twelve grounds, including that the award was excessive and unsubstantiated, the judgment incomprehensible, the trial court disregarded the Registrar of Lands' evidence, and that only the National Land Commission may compulsorily acquire land. Canvassed by written submissions, the appeal succeeded on the state of the record: the court found the proceedings contained no coherent flow of witness testimonies and the judgment was 'a mess', making appellate re-evaluation impossible and unfair. Rather than determine the merits, the court remitted the suit to the magistrates' court for retrial on a priority basis before a magistrate other than the trial magistrate, and made no orders as to costs.

Key legal issues

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01

Whether the appeal has merit

Holding

The appeal succeeded: the judgment and evidence before the trial court were incomprehensible, making re-evaluation impossible and unfair, so the suit was remitted for retrial before a different magistrate on a priority basis

Reasoning

The court found the lower court record contained no coherent flow of witness testimonies and the judgment, delivered under sub-topics, was a mess. Since a first appellate court must re-evaluate evidence, and that was impossible on an incomprehensible record, fairness demanded a remittal for retrial rather than attempting to restructure what the witnesses stated. Given the matter dates from 2009, the retrial was ordered on a priority basis.

p. 6
02

Standard of interference with trial court findings of fact on first appeal

Holding

An appellate court will not interfere with findings of fact unless they were based on no evidence, on a misapprehension of the evidence, or the trial court acted on wrong principles

Reasoning

The court restated the settled first-appeal standard, citing Mwanasokoni v Kenya Bus Service Ltd, before concluding that on the state of the record it could not properly re-evaluate the evidence at all, which led it to the remittal rather than a merits determination.

p. 5

Legal principles established

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  • On a first appeal the court is entitled to revisit, evaluate and re-hear the evidence and arrive at its own conclusion, but will not interfere with findings of fact unless based on no evidence, on a misapprehension of it, or on wrong principles
  • Where a trial court's judgment and record of witness testimony are incomprehensible, the proper course is a retrial before a different magistrate rather than appellate re-evaluation of the evidence

Court orders

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  1. 1.The matter is remitted back to the Magistrates' court for hearing and determination of the suit on a priority basis by a learned magistrate other than the trial magistrate who heard the suit and rendered the impugned judgment
  2. 2.No orders as to costs

Authorities

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Cases cited (11)

  • Shadrack Korir v Felix Kipkemoi Simei & 2 others
    [2020] eKLR
  • David Murai Kori v The District Land Registrar Nyandarua & another
    [2019] eKLR
  • Ravaspaul Kyalo Mutisya v National Land Commission
    [2022] eKLR
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    [2019] eKLR
  • Charles Karaithe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare & 5 others
    [2013] eKLR
  • Mulu M’Inyingi v County Government of Meru
    [2021] eKLR
  • Keiyian Group Ranch v Samwel Oruta & 9 others
    [2021] eKLR
  • Samuel Kamau Macharia v Kenya Commercial Bank & 2 others
    Civil Appl. No 2 of 2011
  • Rutongot Farm Limited v Kenya Forest Service & 3 others
    [2018] eKLR
  • North Sraffordhire Railway Company v Edge
    [1920] AC 254
  • Mwanasokoni v Kenya Bus Service Ltd
    [1982 – 88] I KAR 278
On appeal from
Chief Magistrate's Court at Narok (Narok CMCC ELC No 6 of 2018)
Narok CMCC ELC No 6 of 2018
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court suit (memorandum of appeal dated 10th May, 2022)

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, "Kenya Wildlife Service v Ole & 2 others (Environment and Land Appeal E004 of 2022) [2024] KEELC 1170 (KLR)", Case Analysis (2024). Narok ELC Appeal (memorandum of appeal dated 10th May, 2022, against judgment in Narok CMCC ELC No 6 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1170/eng@2024-03-05

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