Tengecha v Kerich (as legal administrator of the Estate of Paul Kerich Bor (Deceased) (Environment and Land Appeal 32 of 2019) [2023] KEELC 103 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside an ex parte land judgment, ruling the defendant was never told of the hearing and deserved a fresh trial.
What this practically means
#Executive summary
#Key legal issues
#Service of hearing notice and awareness of the hearing date
The court found there was no independent evidence of service in the record, but presumed service on the advocate based on the appellant's own admission; it nonetheless accepted that the advocate inadvertently failed to inform the appellant of the hearing date, and that the appellant's absence was not deliberate
The respondent's replying affidavit lacked any exhibit or affidavit of service. The appellant admitted he was served through his advocate, an admission adverse to his own case which the court presumed true. However, nothing showed the advocate notified the appellant. The court therefore accepted that the ex parte hearing resulted from the advocate's inadvertence, not deliberate absence, an omission the lower court's ruling failed to address.
Breach of natural justice in the ex parte proceedings and the setting-aside application
The trial magistrate breached natural justice by deciding the setting-aside application on the substance of untested ex parte evidence, and by prejudging the merits without hearing the appellant
The ruling failed to find there was no evidence of deliberate absence and instead made prejudicial observations on PW2's evidence. The magistrate's conclusion that the appellant had not controverted PW2's evidence was erroneous since the appellant had not been heard, and such controverting evidence could not be canvassed in a setting-aside application. His finding that the application was meant to delay justice was unsupported by evidence.
Sensitivity of land disputes between family members
While land and family disputes warrant sensitivity and possible conciliation under Article 45, differential treatment is not automatic; abuse of court magnanimity by feigning procedural lapses must be guarded against
Article 45 designates the family as the natural and fundamental unit of society deserving state protection including the judicial system. Courts may recommend conciliation in family-related matters. However, not every procedural breach should be overlooked merely because the adversary is a family member, as some litigants feign procedural lapses to harass adversaries. In this case, the appellant's compliance with the Civil Procedure Rules and family relationship were factors the magistrate should have weighed.
Legal principles established
#- An appeal filed out of the statutory period without an application for extension of time cannot be entertained
- Natural justice requires that all parties be given a chance to present their version before a decision is made; a court cannot pronounce on the merits of evidence not heard at an inter partes hearing
Court orders
#- 1.Struck out the portion of the appeal against the main judgment dated 27/9/2018 for want of extension of time
- 2.Allowed the appeal against the ruling and order dated 11/12/2018 and substituted it with an order allowing the application dated 24/10/2018 in terms of prayer no. 3
- 3.Vacated and set aside the proceedings of 29/5/2018 and the judgment of the lower court dated 27/9/2018
- 4.Remitted Molo CMCC No. 217 of 2014 to the lower court for hearing de novo before any magistrate other than Hon Samuel Wahome, C.M.
- 5.Each party to bear their own costs of the appeal
- 6.Deputy Registrar to transmit the physical lower court file to Molo for implementation
- On appeal from
- Chief Magistrate's Court, Molo
- Molo CMCC No. 217 of 2014
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court in land disputes ( memorandum of appeal dated 20/12/2018)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tengecha v Kerich (as legal administrator of the Estate of Paul Kerich Bor (Deceased) (Environment and Land Appeal 32 of 2019) [2023] KEELC 103 (KLR)", Case Analysis (2023). Molo CMCC No. 217 of 2014 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/103/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.