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Court of AppealPartially AllowedNakuru ELC Case No 405 of 2017 (appeal therefrom)

Sojanm Springfields Limited v Githinji & 4 others (Civil Appeal 73 of 2019) [2024] KECA 953 (KLR)

Court of Appeal
26 July 2024
6,830 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal threw out a land dispute judgment because the judge's flawed site visit denied one side a fair hearing.

What this practically means

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Executive summary

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This was a first appeal against a judgment of the Environment and Land Court at Nakuru (Munyao Sila J.) delivered on 19th June 2019 in a suit by three landowners against Sojanm Springfields Limited, a flower farm operator, NEMA and the County Government of Nakuru. The suit arose from the bursting of the Appellant's dam in August 2014 and the alleged continuous flow of water and effluent onto the Respondents' land. The trial court applied the rule in Rylands v Fletcher, found the Appellant liable, and issued eleven wide-ranging orders, including revocation of the EIA licence for the dam and directives to NEMA. On appeal, the Appellant raised six grounds, principally that the trial court usurped the jurisdiction of the National Environment Tribunal, issued orders not prayed for, and conducted an irregular site visit. The Court of Appeal identified the conduct of the locus in quo proceedings as a preliminary issue capable of affecting the integrity of the entire trial. It found that during the site visits key witnesses gave sworn testimony without cross-examination, the Appellant was not given the opportunity to adduce sworn evidence, and the trial Judge introduced new evidence by questioning bystanders whose statements were relied upon in the judgment. Adopting guidelines from its earlier decision in Kenya Bureau of Standards v Kwale International Sugar Company and the Tanzanian decision in Mantheakis, the Court held the site visit was irregular and prejudicial, vitiating the subsequent proceedings and judgment. It accordingly allowed the appeal, set aside the entire proceedings and judgment, and remitted the suit for a retrial before a different Judge on a priority basis, with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the procedure adopted by the trial Court during the site visit (locus in quo) was irregular and prejudiced the Appellant's right to a fair trial
  2. 2.Whether the trial Court assumed the jurisdiction of the National Environment Tribunal
  3. 3.Whether the orders issued by the trial Court were sought or prayed for in the amended plaint
  4. 4.Whether the trial Court failed to properly evaluate the pleadings and evidence on record and to take into account critical aspects of evidence relating to the use of land by all the parties

Key legal issues

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01

Proper conduct of locus in quo (site visit) proceedings during a hearing

Holding

A site visit forming part of the hearing requires sworn testimony, cross-examination, presence of all parties, full recording and communication of the court's observations; the trial Judge's site visit breached these requirements, was irregular and prejudicial, and vitiated the subsequent proceedings and judgment

Reasoning

The Court distinguished pre-hearing site visits (notes not evidence) from site visits during hearings, where witnesses must testify on oath and be cross-examined. Adopting guidelines from Kenya Bureau of Standards v Kwale International Sugar Company and the Tanzanian decision in Mantheakis, the Court found that witnesses testified without cross-examination, the Appellant could not adduce sworn evidence, and the Judge introduced new evidence by questioning bystanders, introducing findings not subject to the parties' testing.

p. 11
02

Remedy for a trial vitiated by irregular procedure

Holding

The appropriate remedy is nullification of the trial proceedings, quashing of the judgment and an expedited retrial before another Judge, rather than adjudication of the merits

Reasoning

Since the integrity of the entire trial was compromised by the irregular site visit, the Court held it would be neither fair nor just to determine the remaining merits-based grounds arising from the vitiated proceedings. Exercising its powers under Rule 33(c) of the Court of Appeal Rules, 2022, it remitted the suit for retrial before a different Judge on a priority basis, with each party bearing its own costs given the circumstances.

p. 11
03

Duty of the first appellate court

Holding

On a first appeal the Court of Appeal must reconsider and evaluate the evidence and draw its own conclusions, departing from trial findings only where they were not based on the evidence, were founded on wrong principles, or where discretion was exercised injudiciously

Reasoning

Citing Selle v Associated Motor Boats Co Ltd, Jabane v Olenja and Mbogo v Shah, the Court restated the standard of review applicable to first appeals. This framing preceded the procedural enquiry into the site visit rather than a full merits re-evaluation, since the procedural defect was found dispositive.

p. 7

Legal principles established

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  • A site visit (locus in quo) conducted during a hearing must accord the parties fair-hearing safeguards: all parties, witnesses and advocates present; testimony on oath; cross-examination; full recording; and the court's observations made known to the parties
  • A court may not introduce new evidence during a site visit by questioning bystanders without giving parties an opportunity to comment, and proceedings so conducted are vitiated
  • A court conducting a site visit must exercise care not to constitute itself a witness in the case

Court orders

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  1. 1.Set aside the entire proceedings of and judgment delivered by the Environment and Land Court at Nakuru (Munyao Sila J.) on 19th June 2019 in Nakuru ELC Case No 405 of 2017
  2. 2.Remit Nakuru ELC Case No 405 of 2017 back to the Environment and Land Court at Nakuru for a new trial to be held on a priority basis by a Judge other than Munyao Sila J., pursuant to Rule 33(c) of the Court of Appeal Rules, 2022
  3. 3.The suit to be mentioned before the Duty Judge of the ELC at Nakuru within 30 days of delivery of the judgment for directions regarding hearing and disposal
  4. 4.Each party to bear their own costs of the appeal and of the proceedings in the Environment and Land Court
  5. 5.The Deputy Registrar of the Court directed to immediately transmit the judgment to the Presiding Judge of the ELC at Nakuru

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Nakuru
Nakuru ELC Case No 405 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 33(c) of the Court of Appeal Rules, 2022 invoked for remittal)

Relief refused

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Determination of the remaining merits-based grounds of appeal (jurisdiction of NET, orders not prayed for, evaluation of evidence)

The finding that the irregular site visit vitiated the trial was dispositive; it would be unfair to address merits of decisions arising from vitiated proceedings

p. 11

Costs

Each party shall bear their own costs of the appeal and of the proceedings of the Environment and Land Court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I. We hereby set aside the entire proceedings of and judgment delivered by the Environment and Land Court at Nakuru (Munyao Sila J.) on 19th June 2019 in Nakuru ELC Case No 405 of 2017.
p. 11Final orders - setting aside of trial proceedings and judgment
Pursuant to the provisions of Rule 33(c) of the Court of Appeal Rules of 2022, we hereby remit Nakuru ELC Case No 405 of 2017 back to the Environment and Land Court at Nakuru for a new trial to be held on a priority basis by a Judge other than Munyao Sila J.
p. 11Final orders - remittal for retrial before a different Judge
Considering the circumstances giving rise to our decision, we order that each party shall bear their own costs of the appeal and of the proceedings of the Environment and Land Court.
p. 11Final orders - costs
for the visit of the locus in quo to be meaningful, it is instructive for the trial Judge or Magistrate to: one, ensure that all parties, their witnesses, and advocates (if any) are present. Two, allow the parties and their witnesses to adduce evidence on oath at the locus in quo; three, allow cross-examination by either party, or his counsel, four, record all the proceedings at the locus in quo; and five record any observation, view, opinion or conclusion of the court including drawing a sketch plan if necessary which must be made known to the parties and advocates, if any.
p. 10Guidelines for conduct of site visits adopted by the Court
The net efiect therefore is that not only was the subject site visit irregular and prejudicial in material respect as we have already found in the foregoing, but it also vitiated the subsequent proceedings conducted by the ELC, and the resulting judgment cannot therefore also be spared.
p. 11Effect of an irregular site visit on the trial

Issues in the judgment

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minor

The judgment records that on 13th February 2018 the trial Judge set a hearing date of 9th May 2017, an evident typographical error for 2018 (marked '(sic)' in the judgment itself)

minor

Ground 4 of the Memorandum of Appeal refers to 'Petitioners' although the suit was commenced by plaint, suggesting the memorandum was drafted from a petition-based precedent

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sojanm Springfields Limited v Githinji & 4 others (Civil Appeal 73 of 2019) [2024] KECA 953 (KLR)", Case Analysis (2024). Nakuru ELC Case No 405 of 2017 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/953/eng@2024-07-26

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