John Mwangi Gachuhi, James Onyiego Nyarangi, Harold Grant Platt
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.
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.
1. Overseas Finance Corporation v Administration General of Tanganyika (1942) 9 EACA 1
2. Dick v Koinange  EA 165
3. Mulholland v Mitchell  AC 666
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
Mr Mirugi Kariuki for the Appellant.
Mr Maraga for the Respondent.