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ELCDismissedAppeal from Thika Chief Magistrate's Court Civil Case No. 1388 of 2005· [2019] KEELC 2409 (KLR)

Erastus Njoroge Gichuhi v Esther Wanjiru Gichuhi [2019] KEELC 2409 (KLR)

High Court of Kenya
11 July 2019
JKJ.G. Kemei
2,881 words in judgment
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The bottom line

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Kenya's High Court dismissed a son's land appeal, confirming that courts won't reverse executed orders once a party admits occupation and delays action.

What this practically means

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Executive summary

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This is a first appeal from the judgment and orders of Hon. Resident Magistrate L. N. Wachira in Thika CMCC No. 1388 of 2005, delivered on 9 October 2007, heard by J.G. Kemei J at Murang'a. The dispute arose from a family succession matter over parcel LOC.3/GICHAGIINI/323 (17.5 acres), in which the Respondent (second wife of the deceased) was awarded 13 acres and the Appellant (son of the first house) 4.5 acres, a determination affirmed by the High Court (Rawal J) in Succession Cause No. 997 of 1996 and enforced through subdivision into parcels 1099 and 1098. The Respondent sued and obtained restraining orders on 18 July 2006 confining the Appellant to his parcel; subsequent applications for time to relocate and to set aside the orders were dismissed, the Appellant was evicted on 30 January 2007, and structures were demolished. On appeal, reduced to two issues, the court held that the trial court breached no procedural rule because the application determined the mainstay of the suit whose prayers were identical, leaving nothing for trial; that the Appellant, present in person and making submissions without seeking an adjournment, was not condemned unheard; that reference to the concluded succession appeal violated no rule of natural justice; and that with the orders executed and the Appellant's own admission of occupation, the appeal had become academic. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the trial court breached the Civil Procedure Rules by determining the application as if it were a final determination of the suit

Holding

No breach. The prayers in the suit were the same as those in the application; by determining the application the mainstay of the suit was determined and nothing remained for trial.

Reasoning

The court noted the main suit was never set down for hearing, but the interlocutory application sought the same restraining orders as the plaint, in furtherance of the succession judgment. Since the Appellant by his own motion admitted occupying the Respondent's land and sought only time to relocate, the outcome of a full trial would not differ. The allegation of a judgment and decree without hearing was unsupported by the record.

p. 3
02

Whether the trial court violated natural justice by hearing the application in the absence of the Appellant's counsel

Holding

No violation. The Appellant was present in person, made submissions, and did not seek an adjournment.

Reasoning

The record showed the Appellant was present when the application dated 21/03/2005 was heard, made his own submissions, and never applied for an adjournment. His advocate had earlier caused an adjournment and never appeared again until new counsel came on record. He participated in all three applications through counsel or in person, so he was not condemned unheard.

p. 3
03

Whether the magistrate's reference to Succession Cause No. 997 of 1996 breached natural justice

Holding

The issue was answered in the negative; non-disclosure of prior concluded litigation on the same subject matter is not a rule of natural justice.

Reasoning

The Appellant objected to the trial court's reference to the High Court succession appeal in which his less-acreage complaint had already been litigated and dismissed. The court held that the prior proceedings were directly relevant and that the rules of natural justice do not require a court to suppress the fact of previously concluded matters concerning the same subject matter.

p. 3
04

Whether sufficient reason existed to set aside the executed orders of 18/07/2006

Holding

None; the orders had been executed, time had passed, and the Appellant admitted his occupation of the Respondent's land, rendering the appeal academic.

Reasoning

The court took into account that the orders of 18/07/2006 had been executed on 30/01/2007 when the Appellant was evicted, and that he had admitted through his application of 24/07/2006 that he was on the Respondent's land and sought one year to relocate. That application was dismissed. Allowing the appeal would not further the interests of justice.

p. 3

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the trial court's conclusions should stand, giving reasons either way.
  • A party present in person who participates in a hearing without seeking an adjournment cannot complain of being condemned unheard where he was afforded an opportunity to submit.
  • The rules of natural justice do not require the court to withhold from a party before it the existence of previously concluded litigation on the same subject matter.

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure Rules
  • Cap 160 (Law of Succession Act)section 50

Cases cited (2)

  • Selle v Associated Motor Boat Co.
    [1968] E A 123
  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
On appeal from
Thika Chief Magistrate's Court
Civil Case No. 1388 of 2005
Jurisdiction invoked
First appeal from the magistrates' court under the Civil Procedure Act (appeal against orders of the subordinate court)

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, "Erastus Njoroge Gichuhi v Esther Wanjiru Gichuhi [2019] KEELC 2409 (KLR)", Case Analysis (2019). Appeal from Thika Chief Magistrate's Court Civil Case No. 1388 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2409/eng@2019-07-11

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