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ELCDismissedELCA Case No. 3 of 2018· [2019] KEELC 3370 (KLR)

Musa Lichungu v Mamusabu Arap Sitienei [2019] KEELC 3370 (KLR)

Environment and Land Court
8 May 2019
NMN.A. Matheka
905 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a bid to overturn an old ex-parte land judgment because the defendant was served twice and waited six years to act.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kakamega against the ruling of a Principal Magistrate in Kakamega CMCC No. 140 of 1990, delivered on 10th August 2001, dismissing the appellant's application to set aside an ex-parte judgment. The appellant raised four grounds of appeal, contending that the trial magistrate failed to exercise his discretion to set aside the ex-parte judgment, failed to properly investigate the question of service of summons, violated principles of natural justice, and failed to consider that the suit concerned land and should have been resolved on merits rather than technicalities. The appellant sought to have the lower court's decision varied, reviewed, quashed and/or set aside, with costs. Counsel for the appellant relied on James Kenyiita Nderitu & Another v Marios Philotas Ahikas & Another and Mbogo & Another v Shah. The court perused the trial file and the impugned ruling, noting that the trial court had found documented service on two occasions - on 9.5.1990 and by fresh service ordered on 29.5.1991, evidenced by an affidavit of service dated 28.8.1992 signed by the appellant - and that there was an inordinate delay of about six years in bringing the application. The court concurred with the trial court's ruling, holding that the appellant was properly served twice and failed or ignored to respond, and that any further service for formal proof was at the trial court's discretion. Applying Mwanasokoni v Kenya Bus Service, the court evaluated the record but declined to disturb findings of fact based on cogent evidence. The appeal was dismissed with costs to the respondent (the appellant to meet the costs of the appeal).

Key legal issues

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01

Service of summons and plaint

Holding

The appellant was duly served with summons and the plaint on two documented occasions, and signed the affidavit of service as recipient

Reasoning

The trial record showed service on 9.5.1990 with a signed affidavit of service, and fresh service ordered on 29.5.1991 evidenced by an affidavit of service dated 28.8.1992 which the appellant signed. The court found the appellant was served afresh and could not dispute documented service.

p. 2
02

Inordinate delay in applying to set aside ex-parte judgment

Holding

The delay of approximately six years between the 1996 judgment and the 2000 application was unreasonable and justified the trial court's dismissal

Reasoning

The trial court observed that judgment having been delivered in 1996, it was unreasonable for the applicant to wait six years before seeking to set aside. The appellate court concurred, finding the delay inordinate and the trial decision judiciously reached on cogent evidence.

p. 2
03

Standard of interference by first appellate court with findings of fact

Holding

The court would not interfere with the trial court's findings since they were based on cogent evidence and correctly applied principles

Reasoning

Relying on Mwanasokoni v Kenya Bus Service, the court evaluated the record but held that findings of fact are only interfered with where based on no evidence, on misapprehension of evidence, or on wrong principles. None of these was demonstrated here.

p. 2

Legal principles established

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  • A first appellate court must revisit and evaluate the evidence on record and reach its own decision
  • An appellate court will not ordinarily interfere with findings of fact of the trial court unless based on no evidence, on misapprehension of it, or on wrong principles
  • Where a defendant is served and refuses to enter appearance, the court may proceed ex-parte; service for formal proof thereafter is at the discretion of the trial court

Court orders

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  1. 1.The appeal is dismissed for lack of merit
  2. 2.The appellant is to meet the costs of the appeal

Authorities

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Cases cited (3)

  • James Kenyiita Nderitu & Another vs Marios Philotas Ahikas & Another
    (2016) eKLR
  • Mbogo & Another vs. Shah
    (1968) E.A. 93
  • Mwanasokoni v Kenya Bus Service
    (1982 - 88) 1 KAR 870
On appeal from
Chief Magistrate's Court, Kakamega
Kakamega CMCC No. 140 of 1990
Jurisdiction invoked
First appeal against ruling in Kakamega CMCC No. 140 of 1990 (statutory first appeal to the Environment and Land 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, "Musa Lichungu v Mamusabu Arap Sitienei [2019] KEELC 3370 (KLR)", Case Analysis (2019). ELCA Case No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3370/eng@2019-05-08

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