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ELCDismissedAppeal against Siakago MCELC Case No. E067 of 2022· [2026] KEELC 959 (KLR)

Nduma & another v Mwita & another (Environment and Land Appeal E030 of 2024) [2026] KEELC 959 (KLR)

Environment and Land Court
2 February 2026
KBK. BOR
1,706 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon Stephen K. Ngii, Principal Magistrate, delivered on 27/6/2024 in Siakago MCELC Case No. E067 of 2022, in which the Respondents, registered proprietors of Mbeere/Kirima/3875 measuring about 12.14 ha, obtained eviction orders against the Appellants on the ground of trespass. The Appellants, who had filed a defence but neither witness statements nor participation at the hearing, appealed on the main ground that the trial court denied them a fair hearing by declining an adjournment and proceeding undefended. The appeal was heard at Bungoma where written submissions were filed; the Appellants relied on authorities including Job Ohanda and Susan Munyi, while the Respondents relied on Salat v IEBC and Ngok v Moijo Ole Keiwa. K. Bor J held that the right to be heard under Article 50(1) must be balanced against the need for expeditious disposal of litigation. The Appellants had over a year to comply with pre-trial directions, failed to file witness statements as required by Order 7 rule 5, and their advocate did not file a notice of appointment for over six months. Their ground for adjournment - that their advocate was unwilling to proceed - was unsatisfactory, and the documents they filed related to a different parcel and had no probative value. Adjournment being a matter of judicial discretion, the appellate court would not interfere absent wrong exercise. The court found the magistrate's decision to proceed reasonable and justified, noting the Appellants were intent on delay while enjoying possession. The appeal was dismissed with costs to the Respondents, thereby affirming the eviction orders.

Key legal issues

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01

Whether the denial of an adjournment and proceeding with the suit undefended violated the Appellants' right to a fair hearing

Holding

No violation. The Appellants had over a year to comply with pre-trial directions, failed to file witness statements under Order 7 rule 5, and their ground for adjournment (advocate unwillingness) was unsatisfactory.

Reasoning

The court noted the Appellants filed a defence but never filed witness statements despite multiple indulgences by the trial court from July 2023 to April 2024. Their advocate failed to file a notice of appointment for over six months. The documents they did file had no probative value on the disputed parcel. Adjournment is a discretionary matter and the trial magistrate's decision to proceed was reasonable and justified given the Appellants' intent to delay.

p. 4
02

Whether the trial court erred in entering judgment for the Respondents on ownership and trespass

Holding

The trial court properly found ownership proved on a balance of probabilities by title deed, and the Appellants' occupation amounted to trespass.

Reasoning

The 1st Respondent testified and produced a title deed for Mbeere/Kirima/3875 purchased around April 2011. The Appellants produced no ownership documents, and the letters they filed related to a different parcel (Mbeere/Kirima/2981) and had no probative value. The Respondents' evidence that the Appellants entered after purchase remained uncontroverted.

p. 2

Legal principles established

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  • The right to be heard under Article 50(1) must be balanced with the need for expeditious disposal of cases
  • Consideration of an adjournment application is discretionary and an appellate court interferes only where the discretion was wrongly exercised

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondents
  2. 2.The judgment of the trial court directing the Appellants to vacate the suit land within 90 days of service, with eviction in default, is upheld

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 7 rule 5

Cases cited (5)

  • Job Ohanda v Stage Coach International Services Ltd & Another
    (2002) eKLR
  • Central Organization of Trade Unions v Benjamin K. Nzioka & Others
    Civil Appeal No. 166 of 1993
  • Susan Munyi v Keshar Shiani
    (2013) eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others
    (2013) eKLR
  • Dr. Joseph Arap Ngok v Justice Moijo Ole Keiwa & 5 others
    Civil Appeal No. 60 of 1997
On appeal from
Principal Magistrate's Court, Siakago
Siakago MCELC Case No. E067 of 2022
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Principal Magistrate's Court in an environment and land matter

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, "Nduma & another v Mwita & another (Environment and Land Appeal E030 of 2024) [2026] KEELC 959 (KLR)", Case Analysis (2026). Appeal against Siakago MCELC Case No. E067 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/959/eng@2026-02-02

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