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ELCDismissedNot stated on record (Appeal filed June 15, 2009; transferred to this Court on September 10, 2018)· [2023] KEELC 836 (KLR)

Muchelesi & 2 others v Zakali (Environment and Land Appeal 22 of 2018) [2023] KEELC 836 (KLR)

Environment and Land Court of Kenya at Busia
14 February 2023
4,114 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Busia dismissed a family's appeal against eviction, ruling they were properly served with summons and waited 14 years for nothing.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Busia against a ruling of Hon F. Kyambia RM delivered on June 4, 2009, dismissing two applications by the defendants to set aside an ex-parte judgment ordering their eviction from land parcel No East Bukusu/South Nalondo/1915. The ex-parte judgment had been entered after the trial magistrate found the defendants duly served and the Respondent had since evicted them. The appeal was prosecuted by the 1st to 3rd Appellants only; the 4th Appellant's name did not appear on the memorandum of appeal. The court, per Boaz N. Olao J, re-evaluated the evidence as a first appellate court, applying Selle v Associates Motor Boat Co and Peter v Sunday Post. It held that the subordinate court had jurisdiction because the dispute concerned ownership of registered land, beyond the Land Disputes Tribunal's statutory remit. On service, the court found the process server's detailed affidavit proved service on all Appellants, the 4th having signed for the summons, and that the blanket denial of service was made in bad faith; a party seeking discretion must come with clean hands. Applying Mbogo v Shah and CMC Holdings v Nzioki, the court declined to interfere with the trial magistrate's discretion, noting the judgment was regular and no reasons for default or triable defence were shown. The stay of execution prayer failed as there was nothing left to stay, execution having already taken place. The appeal was dismissed with costs to the Respondent, borne by the 1st to 3rd Appellants only, the 4th Appellant being held not to be a party to the appeal.

Key legal issues

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01

Jurisdiction of the subordinate court over the land dispute

Holding

The trial magistrate had jurisdiction; the dispute involved ownership of registered land and was beyond the Land Disputes Tribunal's remit.

Reasoning

The court found nothing to suggest a parcel of 1.64 hectares was beyond the subordinate court's pecuniary jurisdiction. Ownership of registered land is excluded from Land Disputes Tribunals under section 3(1) of the repealed Act, per Jonathan Amunavi v Sabatia Division Land Disputes Tribunal. Grounds 3, 4 and 6 therefore failed.

p. 4
02

Service of summons and setting aside of the ex-parte judgment

Holding

The Appellants were duly served; the judgment was regular and the trial magistrate rightly declined to set it aside.

Reasoning

The process server's affidavit was detailed: the Respondent led him to the 1st-3rd Appellants' home and he effected service, while the 4th Appellant signed for the summons. Their blanket denial of service was made in bad faith. A party seeking discretionary relief must come with clean hands and full disclosure, and no reasons were given for failing to enter appearance.

p. 7
03

Interference with the trial magistrate's discretion

Holding

The appellate court declined to interfere, applying Mbogo v Shah.

Reasoning

The court applied the settled principle that an appellate court will not interfere with a trial court's exercise of discretion unless it misdirected itself or was clearly wrong resulting in miscarriage of justice. Finding the trial magistrate appreciated the correct legal tests on service and triable issues, the court held he could not be faulted.

p. 8
04

Stay of execution

Holding

The stay prayer could not succeed; there was nothing left to stay.

Reasoning

Under Order 42 Rule 6(1) and (2) the Appellants had to show sufficient cause, substantial loss, no unreasonable delay and offer security; their applications made no reference to these requirements. Further, the Respondent deponed that he had already evicted the Appellants in compliance with the order of July 3, 2008, so nothing remained to be stayed.

p. 8
05

Status of the 4th Appellant in the appeal

Holding

The 4th Appellant was not a party to the appeal and could not be made to bear its costs.

Reasoning

Her name was missing from the memorandum of appeal and the record was disjointed, leaving it unclear whether she was appealing. Although the court considered her application out of caution, it found she was not a party to the appeal and could not be visited with its costs.

p. 8

Legal principles established

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  • A first appellate court must re-evaluate and subject the evidence before the trial court to a fresh and exhaustive scrutiny while remembering it neither saw nor heard the parties.
  • An appellate court will not interfere with a trial court's exercise of discretion unless it misdirected itself or was clearly wrong, resulting in miscarriage of justice (Mbogo v Shah).
  • A defendant duly served with summons who seeks setting aside of a regular default judgment must show reasons for default and a defence raising triable issues; a judgment entered without service is set aside as of right.
  • Disputes concerning ownership of registered land fall outside the jurisdiction of Land Disputes Tribunals.

Court orders

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  1. 1.Grounds Nos 3, 4 and 6 of the Memorandum of Appeal dismissed
  2. 2.The appeal is dismissed with costs to be borne by the 1st, 2nd and 3rd Appellants
  3. 3.The 1st, 2nd and 3rd Appellants shall meet the Respondent's costs of this appeal
  4. 4.The ruling of the trial magistrate dated June 4, 2009 is upheld

Authorities

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Legislation

  • Land Disputes Tribunal Act (repealed)Section 4
  • Land Disputes Tribunal Act (repealed)Section 3(1)
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder IXA rules 10 and 11
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (12)

  • Selle & another v Associates Motor Boat Company Ltd
    1968 E.A 123
  • Peter v Sunday Post Ltd
    1958 EA 424
  • Jonathan Amunavi v Sabatia Division Land Disputes Tribunal & another
    CA Civil Appeal No 256 of 2002 (Kisumu)
  • James Kanyitta Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
  • Shah v Mbogo
    1967 E.A 116
  • Mbogo v Shah
    1968 E.A 93
  • CMC Holdings v Nzioki
    2004 1 KLR 173
  • Patel v East Africa Cargo Handling Services Ltd
    1974 EA 75
  • Mbogo & Another v Shah
  • Patel v E.A. Cargo Handling Services Ltd
    (1975) EA 75
  • Chemwolo & Another v Kubende
    [1986] KLR 492
  • Onyango Oloo v Attorney General
    [1986-1989] EA 456
On appeal from
Chief Magistrate's Court, Bungoma (subordinate court)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's ruling (record transferred to the Environment and Land Court by Riechi J on September 10, 2018)

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, "Muchelesi & 2 others v Zakali (Environment and Land Appeal 22 of 2018) [2023] KEELC 836 (KLR)", Case Analysis (2023). Not stated on record (Appeal filed June 15, 2009; transferred to this Court on September 10, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/836/eng@2023-02-14

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