Muchelesi & 2 others v Zakali (Environment and Land Appeal 22 of 2018) [2023] KEELC 836 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the subordinate court over the land dispute
The trial magistrate had jurisdiction; the dispute involved ownership of registered land and was beyond the Land Disputes Tribunal's remit.
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 Ownership of registered land is excluded from Land Disputes Tribunals under section 3(1) of the repealed Act, per Jonathan Amunavi v Sabatia Division Land Disputes Tribunal.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.
Service of summons and setting aside of the ex-parte judgment
The Appellants were duly served; the judgment was regular and the trial magistrate rightly declined to set it aside.
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.
Interference with the trial magistrate's discretion
The appellate court declined to interfere, applying Mbogo v Shah.
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.
Stay of execution
The stay prayer could not succeed; there was nothing left to stay.
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.
Status of the 4th Appellant in the appeal
The 4th Appellant was not a party to the appeal and could not be made to bear its costs.
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.
Legal principles established
#- 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
#- 1.Grounds Nos 3, 4 and 6 of the Memorandum of Appeal dismissed
- 2.The appeal is dismissed with costs to be borne by the 1st, 2nd and 3rd Appellants
- 3.The 1st, 2nd and 3rd Appellants shall meet the Respondent's costs of this appeal
- 4.The ruling of the trial magistrate dated June 4, 2009 is upheld
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.