David Nthiga v Thenderu Mbare [2020] KEELC 2066 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out a land judgment because the trial court wrongly treated absent party's filed documents as evidence, and ordered the whole case retried.
What this practically means
#Executive summary
#Key legal issues
#Effect of a consent transfer of a suit to the Environment and Land Court by a magistrates' court
The trial court had no jurisdiction to transfer the suit; only superior courts may transfer suits under Section 18 of the Civil Procedure Act. The consent order of 27 February 2016 was a nullity, so parties were right to proceed as if it did not exist.
Section 18 of the Civil Procedure Act confers transfer jurisdiction only on superior courts. Consent of parties cannot clothe a court with jurisdiction it does not possess (Mary Osundwa v Nzoia Sugar; Motor Vessel 'Lilian S'; Macfoy v United Africa Co.). A decision made without jurisdiction is null and void. The advocates thereafter took hearing dates as though the order did not exist.
Mode of proceeding when a defendant fails to attend trial
The trial court erred in admitting the Respondent's witness statements and documents as evidence in his absence; it was obligated to conduct an ex parte hearing under Order 12 Rule 2 and consider only the Appellant's evidence.
Order 12 Rule 2(a) requires the court to proceed ex parte on proof of due service when only the plaintiff attends. A pre-trial order admitting witness statements without calling witnesses is legitimate, but it cannot be made at trial to compensate for the absence of a litigant. Neither Order 11 nor Order 12 could make up for the Respondent's absence.
Whether the trial judgment was supportable on the evidence
The judgment was unsupportable: the Respondent never attended court to prosecute his defence or counterclaim, and the Appellant's unchallenged evidence went unrebutted.
First appellate findings of fact can be upset where unsupported by the evidence (Selle v Associated Motor Boat Co.). A party who never attended court could not have proved his defence and counterclaim, and evidence unchallenged at trial could not support dismissal of the plaintiff's case absent rebuttal evidence (Safarilink Aviation v Trident Aviation).
Whether a retrial should be ordered
The proceedings were irregularly conducted in contravention of Order 12 and occasioned a miscarriage of justice; a new trial before any competent court was in the interests of justice.
Applying Chandaria v Njeri, National Bank of Kenya v Thomas Owen Ondieki and Ahmedi Sumar v R, a retrial is ordered where proceedings were irregular or defective resulting in a mistrial, depending on the facts and the interests of justice. The Appellant sought only a new trial, having abandoned the prayer for final judgment.
Legal principles established
#- Parties cannot by consent confer jurisdiction on a court where none exists under law.
- Pleadings, witness statements and documents filed cannot be adopted as evidence where a party and their advocate fail to attend trial; the court must proceed ex parte under Order 12 Rule 2.
- A retrial may be ordered where proceedings were irregular or defective, resulting in a mistrial.
Court orders
#- 1.The judgment and decree of the Hon. M.N. Gicheru (CM) dated 8th October 2018 together with all consequential orders be and is hereby set aside
- 2.The suit shall be heard de novo before any competent court
- 3.Each party shall bear his own costs of both the appeal and the suit before the trial court
- On appeal from
- Chief Magistrate's Court at Embu
- Embu CMCC No. 226 of 2013 (also referred to as CMCC No. 226 of 1990)
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act (Cap. 21) - first appellate jurisdiction over the Chief Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Munene & 2 others v Kibuchi & 3 others (Environment and Land Case E016 of 2024) [2025] KEELC 4436 (KLR)[2025] KEELC 4436 (KLR)12 Jun 2025
- Munene & 2 others v Kibuchi & 3 others (Environment and Land Case E016 of 2024) [2025] KEELC 4436 (KLR)[2025] KEELC 4436 (KLR)12 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "David Nthiga v Thenderu Mbare [2020] KEELC 2066 (KLR)", Case Analysis (2020). E.L.C. Appeal No. 30 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2066/eng@2020-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.