Jonah Kabugo v Martin Mbaya & others [2018] KEELC 167 (KLR)

The 2nd respondent, acting in person and apparently without legal aid, filed a written statement of what he believed were the correct facts. Applying Sebei District Administration v Gasyali and Mumo Matemu on the function of pleadings, the court held it matters not that the document does not conform to the usual format of a defence; the magistrate erred in finding there was no appearance or defence.

Evidence inconsistent with pleadings is not allowed; the plaint attributed the subdivision to the 1st and 2nd defendants, so whoever they employed was a necessary party. The appellant could have availed himself of Order 1 Rule 7 but did not. However, the decision as to who to enjoin may lie with counsel rather than the litigant, so the magistrate was wrong to doubt the appellant's truthfulness on that basis.

No documents showed any transfer by the appellant to the 1st or 2nd respondent; the sale agreement between the 1st and 2nd respondents did not involve the appellant and falsely asserted the 1st respondent was absolute owner. Non-owners dealt with the land in total disregard of the registered owner, so the dealings were fraudulent and could not confer clean title on the 3rd respondent.

The appellant's truthfulness was evidenced by his admission of painful facts, including authorizing the subdivision. The defendants produced no documents showing the appellant transferred the land, and the 2nd respondent did not demonstrate a regular subdivision involving the appellant or conduct due diligence on the root of title.

The court considered Job Muriithi Waweru v Patrick Mbatia, which held the magistrate lacked jurisdiction, and two later decisions (In the Estate of Mutugi Mbutii and Aggrey Khajira Indeche v Jonah Andanje Muchilimani) holding that section 159 gave magistrates' courts jurisdiction where they had pecuniary jurisdiction. Persuaded by the more recent decisions, the court found the magistrate had jurisdiction to cancel the title.