Nyakundi v Kwena & 2 others (Environment and Land Appeal 13 of 2019) [2025] KEELC 5319 (KLR)
The bottom line
#A Kenyan landowner lost his land appeal after skipping his hearing, and the court confirmed the new registered owner's title and ordered eviction.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was res judicata
The plea of res judicata failed because the pleadings of the prior suits were not produced to enable comparison.
The record showed prior proceedings over the suit parcel (Land Dispute Tribunal Central Division No.34 of 2009, Rift Valley Land Dispute Appeal Committee Appeal 67 of 2009, Kericho Civil Appeal No.35 of 2010, and Civil Case 169 of 2007). However, the court could not compare the issues without the pleadings of the previous cases. On the test under Section 7 of the Civil Procedure Act, the Appellant did not place before the court the pleadings of Civil Case 169 of 2007 and Kericho Civil Appeal No.35 of 2010, so the plea of res judicata was not established.
Whether the Appellant was denied a hearing in Narok CM ELC No. 115 of 2018
The Appellant was given a reasonable opportunity to be heard but squandered it; the ex parte proceedings were proper.
The record showed the hearing of 14th May 2019 was adjourned at the instance of the Defendant and a fresh date of 16th July 2019 taken, with counsel appearing for the Appellant at 10.00 a.m. At 12.20 p.m. neither the Appellant nor counsel attended and the matter proceeded ex parte. The court held that the right to be heard is subject to a reasonable opportunity being afforded, and a party who fails to attend drives himself from the seat of justice. The appeal on this ground failed.
Ownership of the suit parcel CIS-Mara/Oleleshwa/2501 and validity of the eviction order
The title chain favouring the 3rd Respondent was proven and the trial court's eviction order was upheld.
A certificate of search dated 26th September 2007 showed Kwena Nyandwaro Nyameiyo was issued a title deed on 3rd July 2003, entered into a sale agreement with the 3rd Respondent on 28th September 2007 for the entire parcel, and a title deed issued to the 3rd Respondent on 14.1.2011. The Appellant's claim to ownership lacked supporting documentation. The trial judgment ordering him to vacate was accordingly sound and the appeal was dismissed.
Legal principles established
#- A party is entitled to a reasonable opportunity to be heard, and inaction or failure to attend court is not excused.
- In determining res judicata, the court must examine the previous decision, its pleadings and record, and the instant case; absent the pleadings of the prior suits the plea cannot be sustained.
Court orders
#- 1.The Appeal is dismissed with costs.
- 2.Stay orders granted on 10th February 2020 are lifted.
- 3.The Appellant to vacate the suit land within 90 days.
- On appeal from
- Chief Magistrate's Court, Narok
- Narok CM ELC NO.115 of 2018
- Jurisdiction invoked
- First appeal to the Environment and Land Court against the judgment of the Senior Principal Magistrate in Narok CM ELC No. 115 of 2018 (specific statutory basis not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyakundi v Kwena & 2 others (Environment and Land Appeal 13 of 2019) [2025] KEELC 5319 (KLR)", Case Analysis (2025). Narok ELCA (Environment and Land Appeal) - appeal from Narok CM ELC No. 115 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5319/eng@2025-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.