William Karani & 47 others v Wamalwa Kijana & 2 others

Court of Appeal, at Nakuru March 19, 1987

Nyarangi, Platt & Gachuhi JJA

Civil Appeals Nos 43 and 153 of 1986 (Consolidated)

(Appeals from the High Court at Eldoret, Patel J)

Review – review and appeal – whether review and appeal are mutually exclusive remedies – effect of filing an appeal where review proceedings have been commenced – failure of appellant to make an election between the two procedures – whether proceedings proper – Civil Procedure Act (cap 21) section 80 – Civil Procedure Rules order XLIV.

Civil Practice and Procedure - consent judgment – setting aside consent judgment – several plaintiffs instructing advocate on behalf of others – consent order made in the absence of most plaintiffs – whether instructing plaintiffs had ostensible authority to enter into consent – whether consent order valid.

The appellants, who were dissatisfied with a consent judgment entered by the High Court in this land dispute, applied to the same court for a review of the judgment. The application was refused.

The appellants appealed against the consent judgment and also against the refusal by the High Court to grant the application for review. These appeals were consolidated.

It was contended that the appellants had not given their consent to the settlement as it had been made in the presence of only nine out of the forty-eight appellants and that the judgment was unconscionable.

Held:

1. The few appellants who had given their advocate the instructions to enter into the consent judgment had ostensible authority on behalf of the others and the advocate therefore had the authority to enter into the consent judgment for all the appellants.

2. The consent order was valid and there was nothing which could justify the setting aside of the consent judgment.

3. Per Nyarangi JA: It would be recommended to judges to adopt the practice of requiring the parties and their advocates to append their respective signatures to consent orders as this practice might reduce subsequent argument about the Consent Order.

4.The Civil Procedure Act (cap 21) section 80 and the Civil Procedure Rules order XLIV do not permit for both the procedures of appeal and review to be adopted at the same time. Once an appeal is taken, review is ousted and the matter that is to be reviewed must merge in the appeal.

5. The appellant’s advocate had failed to make an election between the two procedures of review and appeal. Both appeals were therefore to be struck out for want of election.

Appeals struck out

Cases

1. Rannal Shah v Westlands Trading Stores Properties Ltd and another [1965] EA 642

2. Abdulla Jaffer Dewji v Ali Raza Mohamedali Sheriff Dewji [1958] EA 558

3. Waugh v HB Clifford & Sons Ltd [1982] 1 All ER 1095

4. Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XX, order XL rule 1

2. Civil Procedure Act (cap 21) sections 67(2),80

Advocates

Mr Onalo for the Appellants.

Mr Mulwa and Miss Murungi for the Respondents.

Meshack Mathenge v Gichuru

Court of Appeal, at Nakuru November 28, 1986

Nyarangi, Platt and Gachuhi JJA

Civil Appeal No 82 of 1986

(Appeal from a Ruling of the High Court at Nakuru, Omolo Ag J)

Judgments - of elders - duly filed in the Magistrate’s Courts Act –setting aside decision of panel of elders filed in court under Magistrates’ Courts Act (cap 10) – whether court may modify such decision on its own motion– – whether proper for party to challenge decision of elders by adducing fresh evidence.

Judicial discretion – discretion of court to modify record - record of the decision of a panel of elders under – Magistrates’ Courts Act (cap 10) section 9D – how such discretion exercised – whether proper for court to modify record on its own motion in the absence of reasonable grounds.

Evidence – fresh and additional evidence on second appeal – circumstances in which court will not allow fresh evidence to be adduced.

A land ownership dispute was referred by a magistrate’s court to a panel of elders under the Magistrates’ Courts Act (cap 10) section 9A. The elders found that the land belonged to the respondent and this decision was filed in court. Though a notice of the filing of the decision was given to the parties, no application was made by the appellant to set aside, modify or correct the record or to remit it for the elders’ reconsideration.

The respondent’s advocate requested the Court to enter judgment under section 9E of the Act. The appellant’s advocate had nothing to say to that application and judgment was entered for the respondent in accordance with the decision of the panel of elders.

The appellant’s appeal to the High Court was dismissed and on his second appeal, he raised a matter which had not been raised before the panel of elders or the High Court, namely that he had put up a stone house on the land and the trial magistrate should on that basis have remitted the case for the reconsideration of the elders. The appellant also sought leave to adduce fresh evidence.

Held:

1. The discretion of a magistrate to modify or correct a record under section 9D of the Magistrates’ Courts Act (cap 10) must be exercised judicially; there must exist a proper basis before the magistrate can modify or correct the record.

2. It would be a misdirection for a court, even on its own motion, to act under subsections (1) and (2) of that section in the absence of reasonable ground for doing so.

3. In this case, the trial magistrate can be deemed to have perused the record before entering judgment in terms of the elders’ decision and because there was no reference to a stone house in the record, the magistrate could not properly consider and find that there was a such a house and then proceed to suggest compensation.

4. There was no reason offered by the appellant for the apparent failure of his advocate to urge the trial magistrate to modify or correct or remit the record of the panel of elders before judgment was entered. The magistrate was therefore entitled to the view that all was well because no objection had been raised with regard to the record.

5. To adduce fresh evidence before this Court would be allowed in exceptional circumstances where to refuse it would affront common sense or a sense of justice. There were no such special circumstances in this case and there was no procedure allowed by section 9A, B, C, D & E of the Act under which new evidence could be adduced.

6. It had not been shown that the High Court judge had misapprehended the evidence and consequently made an incorrect conclusion.

Appeal dismissed.

Cases

1. Overseas Finance Corporation v Administration General of Tanganyika (1942) 9 EACA 1

2. Dick v Koinange [1973] EA 165

3. Mulholland v Mitchell [1971] AC 666

Statutes

1. Magistrates’ Courts Act (cap 10) sections 9A (1), (2); 9C; 9D; 9D(4); 9E(1)(a); 9E(2)

2. Magistrates’ Jurisdiction (Amendment) Act 1981

Advocates

Mr Mirugi Kariuki for the Appellant.

Mr Maraga for the Respondent.