PETER OKIABERA OMWENGA V. SAMWEL NYABIBA NYAKER

JUDGMENT OF THE COURT

[1] This appeal arises from a decision made by the Environment and Land Court in Eldoret in its appellate jurisdiction over a matter decided upon by a Resident Magistrate in the Magistrates’ Courts at Eldoret. Therefore being a second appeal Section 72 of the Civil Procedure Act restricts the appeal to matters of law as follows:

“72 (1) Except where otherwise expressly provided in this Act or by any other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely -

(a) The decision being contrary to law or to some usage having the force of law;

(b) The decision having failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.…