Imani v Suntaria (Environment and Land Appeal 11 of 2022) [2024] KEELC 4981 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a KES 605,000 rent judgment because the magistrate ignored the defendant's evidence, ordering a fresh trial before a different magistrate.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court's judgment was a determination on the merits
The judgment was akin to a default judgment because it ignored the appellant's testimony and pleadings despite his having testified and been cross-examined; it was set aside ex debito justitiae.
The record showed the appellant attended court on 14th December 2021, testified as DW1 and was cross-examined, yet the judgment recorded that the defendant did not attend to prosecute his defence and counterclaim. Ignoring evidence actually tendered condemned the appellant unheard, breaching natural justice and rendering the judgment a nullity on the merits rather than a discretionary set-aside matter.
Duty of a first appellate court
The court is obliged to subject the entire evidence to fresh and exhaustive scrutiny and reach its own conclusions, mindful that it neither saw nor heard the witnesses.
Relying on Mursal & another v Manese, which itself drew on Selle v Associated Motor Boat Co and Peters v Sunday Post, the court held that a first appeal is on facts as well as law, entitling litigants to a full, fair and independent consideration of the evidence under section 78 of the Civil Procedure Act.
Appropriate remedy
Setting aside the judgment and ordering a hearing denovo before a different magistrate, rather than dismissing the suit.
Invoking Order 42 Rule 32 and Rule 26 of the Civil Procedure Rules, the court held it may set aside the judgment and decree and order a new trial where it appears a new trial ought to be had. Since the parties' contestations (rent amount, auctioneer's proceeds, damages) were never determined on merit, a fresh trial before another magistrate best met the justice of both parties.
Legal principles established
#- A first appellate court must reconsider and evaluate the whole evidence and reach its own conclusions.
- A judgment that fails to consider a party's pleadings and evidence, condemning the party unheard, must be set aside as of right (ex debito justitiae) as a breach of natural justice.
- Justice must not only be done but be seen to be done.
Court orders
#- 1.The appeal is allowed, and the trial court's judgement delivered on the 23rd March 2022 is set aside.
- 2.The suit be heard denovo/afresh before another magistrate other than the Trial Magistrate, Hon. C. N. Ndegwa.
- 3.Costs of this appeal to be borne by the respondent.
- 4.Costs in the trial court to abide the outcome of the fresh trial.
- On appeal from
- Chief Magistrate's Court, Mombasa
- Mombasa CMCC No. 1219 of 2017
- Jurisdiction invoked
- First appeal under Order 42 Rules 26 and 32 of the Civil Procedure Rules, section 78 of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Imani v Suntaria (Environment and Land Appeal 11 of 2022) [2024] KEELC 4981 (KLR)", Case Analysis (2024). ELC Appeal (Mombasa) arising from Mombasa CMCC No. 1219 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4981/eng@2024-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.