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ELCAllowedConsolidated Appeal against decisions in CMCC ELC No. 113 of 2018 (formerly Kisumu H.C.C.C ELC No. 260 of 2014)· [2021] KEELC 3855 (KLR)

Eucabeth F O Odera v Jeremiah O Rajwayi [2021] KEELC 3855 (KLR)

Environment and Land Court
17 March 2021
AOAntony Ombwayo
1,858 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled defendants shouldn't lose their case over a late-filed defence unless real prejudice is shown.

What this practically means

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Executive summary

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This is a consolidated first appeal against two decisions of Hon. W. K. Onkunya, Senior Resident Magistrate at Kisumu, in CMCC ELC No. 113 of 2018, arising from a trespass suit filed on 4th September 2014 concerning land parcel Kisumu/Konya/5499, in which the respondent alleged the appellant was constructing a perimeter wall on his property. The lower court struck out the appellant's defence, filed on 2nd August 2018 - roughly four years after appearance and without leave - and ultimately entered judgment against her on 7th August 2019. Allowing the appeal, Antony Ombwayo J held that although the defence was irregularly filed, striking it out was draconian: it shut the defendant out of the hearing entirely, and the respondent demonstrated no injurious prejudice incapable of compensation in damages. Applying Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act, the court held that rules of procedure are subservient to substantive justice, and the defence on record should have been validated by payment of filing fees. On the second appeal ground, the court rejected the contention that the Land Registrar, not the court, should determine the dispute under section 18(2) of the Land Registration Act, holding that where boundaries are fixed and title deeds issued, a claim of trespass is justiciable by the courts. The appeal was allowed, the striking-out ruling, the resultant judgment and decree were set aside, and the matter was remitted for hearing before a magistrate other than Hon. W. K. Onkunya. No costs order appears in the judgment.

Key legal issues

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01

Whether striking out a defence filed four years out of time without leave was a proper exercise of discretion

Holding

It was erroneous; the defence was on record and striking it out denied the defendant a hearing where no injurious prejudice was shown

Reasoning

The court balanced the delay caused by the late filing against the defendant's right to be heard. Article 159(2)(d) and Sections 1A and 1B of the Civil Procedure Act prioritise substantive justice over procedural technicalities. The respondent showed no injurious prejudice incapable of compensation by damages, so validation of the irregular defence by payment of filing fees was the appropriate course rather than the draconian remedy of striking out.

p. 2
02

Whether the lower court lacked jurisdiction under section 18(2) of the Land Registration Act as the dispute was allegedly a boundary dispute

Holding

The court had jurisdiction; the dispute was one of trespass, not boundary determination

Reasoning

Section 18(2) bars court proceedings on boundary disputes unless boundaries have first been determined under that section. Here there was no evidence the boundaries were undetermined; the dispute concerned whether the appellant trespassed on the respondent's land. Where boundaries are fixed and title deeds issued, the surveyor establishes beacons, and the court may entertain a trespass claim.

p. 3

Legal principles established

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  • On a first appeal the court reconsideres and evaluates the evidence afresh, making allowance for not having seen or heard the witnesses
  • Striking out a defence on record that was filed out of time, absent demonstrated injurious prejudice, is draconian and offends Article 159(2)(d)
  • Where boundaries of registered land are fixed and title deeds issued, a claim of trespass is justiciable by the court and is not a boundary dispute reserved for the Land Registrar under section 18(2) of the Land Registration Act

Court orders

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  1. 1.The ruling of the lower court made on 23rd/29th January 2019 striking out the defence is set aside
  2. 2.All resultant proceedings and the judgment of 7th August 2019 and the decree dated 7th August 2019 and issued on 14th August 2019 are set aside
  3. 3.The matter is remitted back to the Resident Magistrates Court Kisumu to be heard by a Magistrate other than Honourable W.K. Onkunya

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 7 rule 1
  • Land Registration ActSection 18(2)
  • Appellate Jurisdiction Act, Cap 9 Laws of KenyaSections 3A and 3B (quoted within case extract)

Cases cited (3)

  • Selle & Another vs. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Githere V. Kimungu
    [1976 – 1985] E.A. 101
  • Abdirahman Abdi also known as Abdirahman Muhumed Abdi V. Safi Petroleum Products Ltd. & 6 others
    Civil Application No. Nai. 173 of 2010
On appeal from
Senior Resident Magistrate's Court at Kisumu
CMCC ELC No. 113 of 2018 (formerly Kisumu H.C.C.C ELC No. 260 of 2014)
Jurisdiction invoked
First appeal from the Resident Magistrate's Court (the judgment does not cite the specific appellate statutory provision)

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, "Eucabeth F O Odera v Jeremiah O Rajwayi [2021] KEELC 3855 (KLR)", Case Analysis (2021). Consolidated Appeal against decisions in CMCC ELC No. 113 of 2018 (formerly Kisumu H.C.C.C ELC No. 260 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3855/eng@2021-03-17

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