Francis Barasa Lurare & another v Denis Nyongesa Maloba [2020] KECA 189 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a land succession judgment for lacking proper reasons and ordered a fresh trial before a different judge.
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 impugned judgment meets the threshold for drafting of a judgment enshrined in Order 21, Rule 4 of the Civil Procedure Rules and is therefore sustainable on its merit
- 2.In light of the court's determination on issue No. 1, what are the appropriate orders to make
Key legal issues
#Whether the trial judgment complied with the requirements of Order 21 Rule 4 of the Civil Procedure Rules
The judgment failed to identify any point for determination and gave no reasons capable of execution, breaching Order 21 Rule 4
In a defended succession cause converted to a plaint, the judge was required to address both rival pleadings and the supporting evidence, identify the contested points for determination (the acreage actually sold), and give reasoned findings. Instead the judge recorded an impression that occupation should be measured, without identifying any issue. The further direction that a post-judgment survey would determine entitlement left the proceedings in limbo: no surveyor was designated, no timelines set, and the court had become functus officio, with no mechanism for resolving disputes arising from the survey. Sustaining the judgment would amount to a misjustice and a mistrial.
Whether the Court of Appeal could determine the dispute finally rather than order a retrial
No; the Court's mandate is confined to what the High Court has pronounced on, and Rule 3 empowers it to remit or order a new trial
Although section 3(2) of the Appellate Jurisdiction Act vests the Court with the power, authority and jurisdiction of the High Court, that provision must be read with section 3(1), which confines the Court to hearing appeals from the High Court, i.e. what the High Court has already pronounced itself on. Rule 3 of the Court of Appeal Rules permits the Court to confirm, reverse or vary the decision, remit the proceedings with directions, or order a new trial. Since the judgment below was fundamentally defective, the appropriate course was a retrial, not a final determination on the merits.
Legal principles established
#- Judgments in defended suits must contain a concise statement of the case, the points for determination and the reasons for the decision, as required by Order 21 Rule 4 of the Civil Procedure Rules
- A first appellate court is entitled to re-evaluate and re-analyse the record and come to its own conclusion, bearing in mind that the trial judge had the advantage of seeing and assessing the demeanour of witnesses
- An appellate court will not normally interfere with a finding of fact of the trial court unless it is based on no evidence, on a misapprehension of the evidence, or the judge demonstrably acted on a wrong principle
Court orders
#- 1.Retrial of the objection proceedings before a judge other than A. A. Aroni, J.
- 2.The incoming Judge to do all that is possible within his/her power to expeditiously conduct the retrial
- 3.The matter to be mentioned before the Presiding Judge, Bungoma High Court within 21 days from delivery of the judgment for purposes of directions as to the hearing
- 4.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma, Family Division
- Bungoma P&A Cause No. 112 of 2006
- Jurisdiction invoked
- First appeal under the Appellate Jurisdiction Act, sections 3(1) and 3(2), and Rule 3 of the Court of Appeal Rules
Relief refused
#The appellants' request that the Court of Appeal assume the role of the trial court and determine the dispute finally
The Court's mandate is limited to dealing with what the High Court has already pronounced itself on; delving into the merits would be prejudicial to the proceedings in view of the retrial order
Costs
There will be no order as to 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.
We find basis for interfering with the impugned judgment because sustaining it in our view would also not only amount to a misjustice but also to a mistrial.
We therefore find that no point(s) was (were) identified by the learned Judge for determination as was required of the Court by the prerequisite in the above rule.
No directions were given by the learned Judge as to who would appoint the surveyor, the timeline within which the exercise was to be carried out, how the resulting survey report would be incorporated in an already concluded Judgment for purposes of execution as the court became functus officio upon delivery of the Judgment.
1. We direct a retrial of the objection proceedings before a judge other than A. A. Aroni, J.
4. There will be no order as to costs.
Issues in the judgment
#Jabane vs Olenja is cited in the judgment as '(1968) KLR 661', the same year as Selle vs Associated Motor Board Co. Ltd, which may be a mis-citation of year in the judgment itself
The judgment refers to the respondent's father variously as 'Joash Maloba Kituyi' and in submissions the appellants refer to 'Jason purchased seven (7) acres', an apparent inconsistency in the name of the purchaser
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Barasa Lurare & another v Denis Nyongesa Maloba [2020] KECA 189 (KLR)", Case Analysis (2020). Eldoret Civil Appeal No. 163 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/189/eng@2020-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.