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ELCAllowedE.L.C. Appeal No. 1A of 2017· [2020] KEELC 649 (KLR)

Charles Muthiutuku Sekendu & another v James Njeru Joel [2020] KEELC 649 (KLR)

Environment and Land Court
22 October 2020
2,845 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court threw out a land eviction judgment because the trial court decided the case without holding a proper hearing or including the current landowner.

What this practically means

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Executive summary

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The Environment and Land Court at Embu (Y.M. Angima, J) allowed a first appeal against the judgment and decree of Hon. M.N. Gicheru (CM) dated 30th January 2017 in Embu CMCC No. 277C of 2012, in which the Respondent's suit for eviction of the 1st Appellant from parcel Gaturi/Githimu/6849 was allowed, with the 2nd Appellant directed to a refund of the purchase price. The Appellants raised five grounds, condensed by the court into three issues: whether the trial court considered evidence not tendered, whether the Respondent proved his case, and costs. The court found the record showed no hearing ever took place; the suit was only coming for mention on 16th January 2017 when parties stated their claims per documents on file. Neither party consented to dispense with an oral hearing nor did the trial court invoke Order 11 Rule 3(2)(c) of the Civil Procedure Rules, so all parties were denied the opportunity to tender and test evidence without due process. Further, the registered proprietor of parcel Gaturi/Githimu/6850, sold by the 2nd Appellant to David Muriithi Mbeti, was never joined though the decree affected his interest, violating his right to a fair hearing. The appeal was allowed, the trial judgment and all consequential orders set aside, and the matter remitted to the Chief Magistrate's court for hearing de novo on a priority basis, with the Respondent directed to join the current registered proprietor of parcel 6850. Because the trial was defective and would be redone, each party was ordered to bear its own costs of the appeal. The 1st Appellant's counterclaim, apparently declined by the trial court, will fall for determination at the retrial.

Key legal issues

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01

Whether the trial court erred in law in considering evidence which was not tendered at the trial

Holding

Yes. No hearing took place; the parties were denied the opportunity to tender evidence and cross-examine without due process, so the trial court wrongly took into account material not tendered as evidence.

Reasoning

The record shows the suit was only coming for mention on 16th January 2017, not for hearing. Neither party consented to dispense with an oral hearing nor did the trial court invoke Order 11 Rule 3(2)(c) to admit documents and witness statements without calling witnesses. The Land Registrar's report alone could not constitute the evidence; the parties were denied a fair hearing.

p. 3
02

Whether the Respondent proved his case to the required standard

Holding

No. With no proper evidence tendered, and the registered proprietor of parcel 6850 not joined despite his interest being affected, the Respondent could not be said to have proved his case.

Reasoning

There being no evidence tendered by parties and witnesses, the Land Registrar's report by itself was insufficient. Further, the 2nd Appellant had disclosed he sold parcel 6850 to David Muriithi Mbeti, yet that proprietor was not joined; any adverse decree against his property without being heard violated his right to a fair hearing.

p. 4
03

Who shall bear the costs of the appeal

Holding

Each party to bear own costs, because the defective trial may have to be redone and penalizing either side would be punitive.

Reasoning

Although costs follow the event under section 27 of the Civil Procedure Act, the court held that since the trial was defective and may be conducted afresh, it would be punitive to penalize any party in costs.

p. 4

Legal principles established

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  • A first appellate court must analyze, reconsider and re-evaluate the entire evidence on record while making due allowance for the fact that it neither saw nor heard the witnesses.
  • There are only two legitimate ways of dispensing with a customary oral hearing under the Civil Procedure Rules: consent of the parties, or a court direction under Order 11 Rule 3(2)(c).
  • A registered proprietor whose legal interest is affected by a judgment must be joined as a party before any adverse order is made against his property.
  • Costs follow the event under the proviso to section 27 of the Civil Procedure Act unless the court for good reason directs otherwise.

Court orders

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  1. 1.The 1st and 2nd Appellants' appeal be and is hereby allowed
  2. 2.The judgement and decree of the trial court dated 30th January 2017 be and is hereby set aside together with all consequential orders
  3. 3.The matter is hereby remitted to the Chief Magistrate's court for hearing de novo before any magistrate on priority basis
  4. 4.The Respondent shall take steps to join the current registered proprietor of Title No. Gaturi/Githimu/6850 as party to the suit before it is heard de novo
  5. 5.Each party shall bear his own costs of the appeal

Authorities

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Legislation

  • Civil Procedure Actsection 27 (proviso)
  • Civil Procedure RulesOrder 11 Rule 3 (2)(c)

Cases cited (4)

  • Selle & Another Vs Associated Motor Boat Co. Ltd & Others
    [1968] EA. 123
  • Peters Vs Sunday Post Ltd
    [1958] EA 424
  • Watt Vs Thomas
    [1947] A.C 424
  • Hussein Janmohammed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
On appeal from
Chief Magistrate's Court at Embu
Embu CMCC Case No. 277C of 2012
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court (appeal against judgment and decree of Hon. M.N. Gicheru, CM)

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, "Charles Muthiutuku Sekendu & another v James Njeru Joel [2020] KEELC 649 (KLR)", Case Analysis (2020). E.L.C. Appeal No. 1A of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/649/eng@2020-10-22

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