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Court of AppealDismissedCivil Appeal No. 7 of 2016

Paul Lagat & 8 Others v Dauglas Ngunchiri Wainchungo

Court of Appeal of Kenya
17 January 2019
1,952 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The respondent sued the 1st to 7th appellants in the High Court at Kitale for a declaration that parcel LR 838/22 belonged to him, having purchased it from Hasham Lalji Properties Limited, and for their eviction. The 8th to 10th appellants were later enjoined as defendants; they claimed to have purchased the same property from the same vendor and filed a defence and counterclaim. At the defence hearing on 17th September 2014, the 8th to 10th appellants' advocate sought an adjournment because his client and a material witness, Diamond Lalji, were unavailable. The trial judge rejected the application, citing the age of the case and the defendants' contribution to delay; the appellants closed their case without evidence. Judgment was entered for the respondent on 10th December 2014, the counterclaim was dismissed, and the appellants were ordered evicted. On appeal, the Court of Appeal held that although the appeal was nominally against the judgment, the orders sought actually targeted the adjournment ruling, and no notice of appeal had been filed against that ruling, rendering that challenge defective as out of time and without leave. On the merits, the court found the trial judge could not be faulted: the appellants had over three months to prepare, gave no good reason for their witnesses' unavailability, and squandered their opportunity to be heard; justice required regard to the respondent's interest in concluding ten-year-old litigation. The respondent's unchallenged evidence, supported by the Deed of Assignment, sufficed. The appeal was dismissed with 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 appeal, to the extent it impeaches the ruling of 17th September 2014 rejecting an adjournment, was properly before the court given the absence of a notice of appeal against that ruling
  2. 2.Whether the trial judge erred in rejecting the application for adjournment and thereby denying the appellants a fair hearing
  3. 3.Whether the respondent proved his claim in the absence of evidence from the appellants

Key legal issues

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01

Denial of the right to be heard through refusal of an adjournment

Holding

The trial judge did not err in refusing the adjournment; the appellants had over three months to prepare and gave no good reason for the unavailability of their witnesses, and the court was entitled to weigh the respondent's interest in concluding ten-year-old litigation.

Reasoning

The court reviewed the history of delay, including a prior ex-parte hearing set aside by consent. It held that justice cuts both ways: the right to be heard was afforded but squandered, and Article 159 does not excuse indolence and negligence. The dismissal of the appellants' later application to set aside the judgment was not under appeal.

p. 3
02

Defectiveness of the appeal as against the adjournment ruling

Holding

Although the appeal was nominally against the judgment of 10th December 2014, the orders sought targeted the ruling of 17th September 2014; absent a notice of appeal against that ruling, the challenge was defective, being out of time and without leave.

Reasoning

The court identified a mismatch between the judgment appealed from and the relief actually sought. Because no notice of appeal was lodged against the interlocutory ruling, the attempt to impeach it failed on procedural grounds, though the court proceeded to consider the merits.

p. 2
03

Sufficiency of the respondent's evidence

Holding

The respondent's unchallenged evidence, including the Deed of Assignment from Hasham Lalji Properties Limited, sufficiently proved his claim, justifying the declaration of ownership, eviction order and dismissal of the counterclaim.

Reasoning

With the appellants having closed their case without calling any witness, the respondent's testimony and documentary evidence stood uncontroverted. The trial judge was therefore right to enter judgment for the respondent and to dismiss the counterclaim for lack of evidence.

p. 3

Legal principles established

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  • A litigant's right to a hearing may be forfeited where, having been given adequate time to prepare, no good reason is shown for unavailability of witnesses; the right to be heard does not excuse indolence.
  • An appeal seeking to impeach an interlocutory ruling without a notice of appeal against that ruling is defective as filed out of time and without leave.
  • Where a defendant adduces no evidence, the plaintiff's unchallenged evidence, supported by documentary proof, suffices to sustain judgment.

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kitale
Civil Case No. 92 of 2004
Jurisdiction invoked
First appellate jurisdiction over the High Court (Constitution of Kenya, 2010, Article 164; appeal as of right against the judgment and decree)

Relief refused

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Setting aside the judgment of 10th December 2014 and remitting the suit to the High Court for rehearing

The trial judge properly rejected the adjournment; the appellants squandered the opportunity to be heard and the respondent's unchallenged evidence supported the judgment

p. 3

Costs

Appeal dismissed with costs to the respondent.

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.

It is true that the appellants were entitled to a hearing. That opportunity was given to them but they squandered it.
p. 3Right to be heard forfeited by indolence
To the extent that no notice of appeal was filed against this ruling, the appeal seeking to impeach the order made in the ruling is defective as having been filed out of time and without leave.
p. 2Defective appeal against interlocutory ruling
In the circumstances, we find no merit in this appeal. It is dismissed with costs.
p. 3Final orders - dismissal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Lagat & 8 Others v Dauglas Ngunchiri Wainchungo", Case Analysis (2019). Civil Appeal No. 7 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1033/eng@2019-01-17

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