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ELCDismissedELC Appeal No. 2 of 2018· [2020] KEELC 3446 (KLR)

James Kimani Kihara & 6 others v Joseph Thuku Kimani [2020] KEELC 3446 (KLR)

Environment and Land Court
24 February 2020
MKMohammed Kullow
1,303 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Narok from the judgment of Hon. A.K. Ithuku, Senior Magistrate, delivered on 26 January 2016 in a land dispute over Cis Mara/Oleleshwa/275. The seven appellants, defendants before the magistrate, raised ten grounds attacking the judgment that ordered eviction: that the magistrate ignored the District Land Registrar's reports on the position of Plot No. 275 after sub-division, that the plaintiff lacked locus standi because the land was registered in the name of John T. Ole Maalaso, that they were bona fide purchasers with valid titles, that some had been in possession for over twenty years and claimed adverse possession, and that judgment was entered without notice to them after their advocates ceased acting, breaching their right to a fair hearing under Article 50(1) of the Constitution. The appeal was disposed of by written submissions. Kullow J found that the plaintiff had testified and tendered his title, which was cross-examined on but never challenged, making the locus standi objection an afterthought. On the hearing, the record showed the appellants were represented until 18 September 2014, were served with the hearing date of 13 May 2015, accepted service without protest, and simply chose not to attend, whereupon the defence case was closed. The court held that cases belong to parties, not advocates, and litigants must follow up their own cases. The appeal was found to lack merit and was dismissed with costs to the respondent, thereby affirming the magistrate's judgment.

Key legal issues

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01

Locus standi of the plaintiff/respondent

Holding

The respondent proved he was the registered owner by tendering a title which the appellants never challenged; the locus standi objection was an afterthought.

Reasoning

The plaintiff testified that he was the registered owner of Cis Mara/Oleleshwa/272 and 275 and produced a copy of his title. He was cross-examined by the appellants' advocate. The appellants did not controvert the title, so the contention that the land belonged to John T. Ole Maalaso and that the plaintiff lacked capacity to sue failed.

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02

Right to a fair hearing / hearing in absence of defendants

Holding

The appellants were represented, served with hearing dates, accepted service without protest, and chose not to attend; no breach of their right to a fair hearing arose.

Reasoning

The record showed the appellants' advocates acted until formally released on 18/9/14 with directions that the appellants be served. On 13/5/15, at the defence hearing, the magistrate confirmed service before closing the defence case. The affidavit of service showed the appellants accepted service without protest. A party has a duty to follow up its own case; blame lies with the party, not counsel.

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03

Adverse possession and bona fide purchaser claims

Holding

Rejected; these were raised only in submissions on appeal and did not displace the respondent's proven title.

Reasoning

The appellants contended they had been in possession since 1992 and had bought the parcels in good faith, but the respondent's registered title stood uncontroverted and the appeal was disposed of by written submissions; the court found no merit in grounds attacking the magistrate's treatment of the land registrar's reports.

p. 2

Legal principles established

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  • Litis is for the parties, not their advocates; litigants bear a duty to follow up on their cases and cannot blame counsel for their own non-attendance
  • Unchallenged proof of title by production of a title document establishes the plaintiff's locus standi

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
On appeal from
Magistrate's Court at Narok
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the Magistrate's Court (Environment and Land Court Act)

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, "James Kimani Kihara & 6 others v Joseph Thuku Kimani [2020] KEELC 3446 (KLR)", Case Analysis (2020). ELC Appeal No. 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3446/eng@2020-02-24

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