Simani v Magotswe [1989] KECA 52 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the failure of the courts below to take into account the sale agreement of 13 February 1967, said to have been admitted in evidence, constituted an error apparent on the face of the record under Order 44 rule 1
- 2.Whether the affidavit evidence of Wafula and Osundwa amounted to discovery of new and important matter or evidence
- 3.Whether a fresh consent of the Land Adjudication Officer was required under section 30 of the Land Adjudication Act when the plaint was amended
- 4.Whether the Magistrates' Jurisdiction (Amendment) Act (Act No. 14 of 1981) deprived the Resident Magistrate's Court of appellate jurisdiction and required reference of the appeal to a panel of elders
Key legal issues
#Error apparent on the face of the record under Order 44 rule 1(1)
No error apparent where the agreement relied on was never admitted in evidence and never formed part of the record
The court examined Order 13 rule 3(1) and (2), which make only documents admitted in evidence part of the record. The sale agreement of 13 February 1967 was referenced in the record but never tendered. The courts below were therefore entitled to disregard it, and their doing so was not a mistake or error apparent on the face of the record for purposes of review.
Discovery of new and important matter or evidence
Evidence of matters occurring in 1975-1976, before the suit was filed, cannot qualify as new matter since it was within the appellant's knowledge at trial
The affidavits of Wafula and Osundwa related to a boundary dispute dealt with in 1975 and 1976, before the respondent instituted proceedings on 30 March 1977. The test in Order 44 rule 1 requires that the matter was not within the applicant's knowledge or could not be produced despite due diligence. Neither condition was met, so the ground failed.
Consent of the Land Adjudication Officer under section 30 of the Land Adjudication Act (Cap 284)
A consent obtained for the original suit suffices; an amendment introducing a new cause of action is not the institution of a new suit requiring fresh consent
Section 30(1) prohibits instituting civil proceedings concerning land in an adjudication section without the adjudication officer's written consent. The court held the provision addresses institution of proceedings, not amendments. Since the original suit was instituted with the requisite consent, the amendment of 16 June 1980 did not trigger any fresh consent requirement.
Appellate jurisdiction under the Magistrates' Jurisdiction (Amendment) Act (Act No. 14 of 1981)
Section 9A and the transitional provision in section 4 do not apply to appeals; only the trial court which heard and pronounced judgment was required to refer pending cases to a panel of elders
The Act took land cases out of magistrates' courts' hands and required reference to panels of elders, subject to a transitional provision for cases already filed. The court read the Act as a whole and held that clear language would be required to extend the reference obligation to appellate courts. The word 'appeals' is nowhere used, and it is inconceivable that an appellate court could make such a reference. The Resident Magistrate's appeal was therefore properly entertained.
Legal principles established
#- Only documents admitted in evidence form part of the record of the suit for purposes of review; a court's disregard of a document never admitted is not an error apparent on the face of the record
- An amendment of a plaint introducing a new cause of action does not amount to the institution of a new suit and does not require a fresh consent under section 30 of the Land Adjudication Act
- The transitional provision of the Magistrates' Jurisdiction (Amendment) Act requiring reference of pending land cases to panels of elders applies only to the trial court, not to courts exercising appellate jurisdiction
Court orders
#- 1.The appeal is dismissed
- 2.The appellant to pay the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Appeal under Order 42 rule 1(1)(aa) of the Civil Procedure Rules against a refusal of review under Order 44 rule 1; second appeal restricted by section 71A of the Civil Procedure Act (Cap 21)
Relief refused
#Review of the High Court judgment (error on face of record)
The sale agreement was never tendered in evidence and so did not form part of the record
Adduction of fresh affidavit evidence of Wafula and Osundwa
The evidence was within the appellant's knowledge well before trial and could have been produced at the original trial
Reference of the matter to a panel of elders under the Magistrates' Jurisdiction (Amendment) Act
The transitional provision applies to the trial court which heard the case and pronounced judgment, not to an appellate court
Costs
The appeal was dismissed with costs to the respondent: "For the reasons we have given, this appeal fails and it is ordered to be dismissed with costs."
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There is no evidence on the record to support Mr Khaminwa's contention that the original agreement or a copy thereof was ever admitted as part of the record of the suit within the meaning of Order 13 rule 3 (1) and (2) of the Civil Procedure Rules.
mere amendment of a plaint to introduce a new cause of action cannot amount to institution of a new suit
Reading the Act as a whole, we would require very clear language before we can be persuaded that the amendment also affected the appellate jurisdiction of the Subordinate Courts.
Clearly, therefore, the appellate Court would not lawfully refer issues in the appeal before it to a panel of elders.
For the reasons we have given, this appeal fails and it is ordered to be dismissed with costs.
Issues in the judgment
#The judgment refers inconsistently to the appellant's first appeal number, first as Civil Appeal No. 1 of 1983 and later as Civil Appeal No. 1 of 1984 in the Resident Magistrate's Court, Eldoret
The judgment cites the Land Adjudication Act once as Cap 284 and once as Cap 184
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simani v Magotswe [1989] KECA 52 (KLR)", Case Analysis (1989). Court of Appeal (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1989/52/eng@1989-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.