Mroso J:
This is an appeal against an order of the District Court (Mbuge DM) as a first appellate court that the case which originated in the trial primary court and which was before the district court on appeal be tried de novo. Let me give a brief background to the present appeal.
The appellants brought a suit against the respondent in the primary court at West Meru claiming that the respondent had encroached on an area measuring about three acres of their land. Both sides called witnesses and the trial Court visited the locus in quo and drew a sketch plan of it.
In a very brief judgment the trial primary court apparently decided the case mainly on the basis of its observations during the visit to the disputed land.
The respondent was aggrieved by that decision and appealed to the district court by filing five grounds of appeal. The district magistrate of the first appellate court did not discuss any of the grounds of appeal.
Instead it observed that the trial Court did not follow guidelines contained in the case of Nizar M H Ladak v Gulamali Fazal Jan Mohamed (1) regarding the visit to a locus in quo by a court. Without specifically saying so the first appellate court proceeded to nullify the proceedings and decision of the trial Court. It then ordered a trial de novo.
The appellants have filed three grounds of appeal and at the hearing the respective counsel for the parties asked and were granted leave to file written submissions. Mr Sabaya, learned advocate for F the appellants, did not meet the deadline for filing his submissions but he explained in writing his failure to beat the deadline and I have accepted his explanation for his late filing.
The first ground of appeal is that it was unnecessary for the first appellate court to order a trial de G novo because there was enough evidence on which the case could have been decided in favour of the appellants. The second ground of appeal is that having nullified the proceedings in the trial court, it was not necessary to a order a trial de novo. The first appellate court should have left it open for H the appellants to choose to institute fresh proceedings. Let me hasten to remark that it was only the proceedings (and the decision) which were apparently nullified and not the case which was filed in the primary court, that was why the case which was still in the primary court was to be tried de novo. If the whole of the case had been nullified there would be nothing to be tried de novo. A fresh case would have to be filed in court.
The third ground of appeal is the error by the trial court in not taking notes when it visited the locus in quo was not so fundamental as to justify the order of a trial de novo.
The first appellate court had the power to evaluate the recorded evidence and come to its own conclusion.
It is plain that the trial court did not discuss the relationly lengthy evidence it recorded but appeared to base its decision substantially on its observations at the locus in quo, which really means that it C relied mainly on its own `evidence' rather than on the evidence given on oath by the parties and their respective witness. It could therefore be said with justification that there was no proper judgment from the primary court. So, the crucial point really was not so much that the trial court D failed to observe the guidelines regarding a visit to a locus in quo as contained in the Nizar Ladak case (supra) which was cited by the district magistrate and the learned counsel in their respective written submissions but the glaring failure by the trial Court to discuss the evidence which was adduced by the parties and giving a decision based on that evidence. There is little doubt that there was enough evidence from both sides in the case on which a judgment and decision could have E been based. Indeed, the respondent in his grounds of appeal which he filed on the district court did not complain against the trial court in visiting the disputed land or for its failure to take notes of what was observed during the visit and asking the parties to comment, if they wished, on such notes. His F substantive complaint is that there was no judgment in law from the primary court.
What then should the first appellate court have done in such circumstances?
First, it would have to consider the ground of appeal alleging that the primary court judgment was no judgment at all. If it agreed with that ground of appeal it would nullify the supposed judgment and remit the case to the primary court with a direction that a judgment based on all the evidence which was before the trial court be written.
However, if the first appellant court found that there was a primary court judgment but that it was unsatisfactory then it would proceed to consider the other grounds of appeal. In doing so, as a first appellate court, it would be entitled to evaluate the entire evidence and come to its own conclusion. A dissatisfied party could then appeal to the High Court.
I would agree with the appellants that the non-observance by the trial court of the guide lines in the Nizar Ladak case (supra) did not justify nullification of the entire proceedings before the trial court and the order for a trial de novo. For that reason I quash and set aside the judgment of the district court and direct the appellate magistrate to consider first the ground of appeal whether the primary court judgment was or was not a judgment in law and then proceed as I have indicated in this judgment.
I would like to caution the district court as a first appellate court that an order for a trial de novo should only be made in the clearest of situations and where it is unavoidable. This is because a fresh trial entails the recalling of witnesses who may or may no longer be available, not to say that the parties are made to incur expenses and expend their time all over again.
If I have not considered all the grounds of the appeal and the learned submissions of counsel in detail it is not out of disrespect or that they are not worthy but because I feel that it is premature in view of the direction to the district court which I made above.
The parties to bear their own costs so far here and in the two courts below.