Murumia (Sued as the Legal Representative of the Estate of Murumia Murathi (Deceased)) v Manyara (Environment and Land Appeal E090 of 2024) [2025] KEELC 7040 (KLR)

4. The appellant has filed the memorandum of appeal dated 18th December 2024; and wherein same has highlighted the following grounds: i. That the Honourable magistrate erred in law and fact by failing to understand and embrace the issues raised in the application dated 9th September 2024 and the evidence adduced in support of the said application. ii. That the learned Honourable magistrate erred in law and fact when she failed to note that a notice of preliminary objection had been filed and which issue was never addressed in the judgment, yet a notice of preliminary objection takes precedence over any other matters. iii. That the learned trial court erred in law and fact when she failed to understand that when a notice of preliminary objection has been filed and brought to the attention of the Honourable court no any matter touching on the issues at court in relation to the said file can proceed yet the same proceeded contrary to the laid down legal procedures and is bad in law. iv. That the Honourable court erred in law and fact when it denied the appellant an opportunity to stage his case, first by failing to conduct a pre-trial conference as per Order 11 of the Civil Procedure Rules; and rules to a fair hearing as enshrined in the constitution, thus denying her a right to a fair hearing. v. That learned Honourable magistrate erred in law and fact by relying on the testimony of the respondents' witnesses and failed to consider the appellant evidence as presented in the application dated 9th day of September 2024, despite the appellant have filed a draft statement of defence to the respondents' claim in the said application. vi. That the learned magistrate erred in law and in fact in not appreciating defence of the appellant who was locked from the seat of justice and misdirected himself as to the law and facts applicable in reaching his decision. vii. That the learned magistrate was out rightly biased by ignoring and or failing to conduct the matter as enshrined under the statutes and the constitution. 5. The subject appeal came up for directions on 21st July 2025, whereupon the advocate[s] for the parties confirmed that the record of appeal had been duly filed and served. In addition, it was confirmed that the record of appeal is complete and thus the appeal is ripe for directions. To this end, the court proceeded to and issued directions pertaining to the hearing and disposal of the appeal. In particular, the court directed that the appeal shall be disposed of by way of written submissions to be filed and exchanged. Moreover, the court circumscribed the timelines for filing and exchange of the written submissions. 6. The appellant filed written submissions dated 28th August 2025; and wherein same has highlighted three [3] key issues for consideration by the court. Firstly, learned counsel for the appellant has submitted that the learned trial magistrate erred in failing to find and hold that the appellant's right to fair hearing had been breached, infringed upon and or violated. 7. In addition, it was contended that the learned magistrate did not discern that no case conference was ever taken in the manner prescribed by the provisions of Order 11 of the Civil Procedure Rules. To https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7040/eng@2025-10-16 2

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the extent that no case conference was taken, Learned Counsel has contended that the hearing of the matter in the lower court was pre-mature. In this regard, it was posited that the Magistrate ought to have set aside the impugned Judgment. 8. Furthermore, learned counsel for the appellants has submitted that the appellant herein had previously filed a notice of preliminary objection challenging the competence of the suit in the subordinate court. However, it was contended that the said preliminary objection was never heard and or determined. 9. Arising from the foregoing, it has been submitted that had the learned magistrate properly considered the issues at the foot of the application, same would no doubt have found that the appellant established a basis to warrant the setting aside of the ex-parte [impugned] judgment. 10. Secondly, learned counsel for the appellant has submitted that the appellant presented a draft statement of defence which exhibited bona-fide triable issues and hence it behooved the trial court to afiord the applicant an opportunity to be heard. Moreover, it was submitted that the learned trial magistrate misapprehended the extent and scope of her discretion while dealing with an application for setting aside an ex-parte Judgment. 11. Thirdly, learned counsel for the appellant has submitted that by dismissing the application dated 9th September 2024; and declining to set aside the Ex-parte judgment, the learned magistrate denied and deprived the appellant of the opportunity to be heard. Simply put, learned counsel for the appellant has contended that the impugned ruling has denied same the right to benefit from the rules of natural justice. 12. Flowing from the foregoing, learned counsel for the appellant has invited the court to find and hold that the subject appeal is meritorious. To this end, the court has been implored to set aside the impugned ruling and to allow the application dated 9th September 2024. 13. The respondent filed written submissions dated 16th September 2025; and wherein same has raised four [4] key issues. Firstly, learned counsel for the respondent has submitted that even though the appellant had filed the notice of preliminary objection, same failed to prosecute the notice of preliminary objection. Moreover, it has been submitted that the appellant failed to comply with the directions of the court which were issued on 10th December 2020; pertaining to and concerning service of the notice of preliminary objection. 14. In addition, it has been submitted that the appellant was also granted various opportunities by the trial court to file a statement of defence and the requisite documentation, but same failed to adhere to and or comply with the directions of the court. In this regard, it has been posited that the appellant resorted to a conduct which was intended to delay; defeat and or obstruct the hearing of the suit before the subordinate court. 15. Furthermore, it has been submitted that where a party has been afiorded suficient opportunity to partake of and participate in the proceedings of the court, but chooses not to seize the opportunity, such a party cannot be heard to contend that same has been condemned unheard. 16. To buttress the foregoing submissions, learned counsel for the respondent has cited and invoked the decision in the case of Tana Teachers Cooperative and Credit Society Ltd vs Andriano Muchiri (2018) eKLR, where the Court of Appeal took into account the conduct of a party who had sought to defeat the due process of the court by failing to adhere to the directions of the court. 17. Regarding the second issue, learned counsel for the respondent has submitted that the trial court granted both parties a duration within which to file and exchange the trial bundles/documents. To this end, learned counsel has referenced the proceedings of the court made on 8th September 2022. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7040/eng@2025-10-16 3

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Nevertheless, it has been posited that the appellant failed to file the trial bundle of documents; or the Statement of Defence. 18. Turning to the third issue, learned counsel for the respondent has submitted that the learned trial magistrate correctly exercised her discretion in failing to set aside the Ex-parte judgment taking into account the totality of the circumstances surrounding the matter. In any event, it has been submitted that in so far as the appellant had not filed a statement of defence, the setting aside of the judgment would have served no useful/meaningful purpose. 19. Finally, it has been submitted that the conduct of the appellant before the trial court was such that the appellant did not deserve exercise of judicial discretion in his favour. In this regard, it has been submitted that the appellant did not meet the threshold for setting aside of an Ex-parte judgment. 20. Premised on the foregoing, learned counsel for the respondent has contended that the subject appeal is bereft of merits; and thus same ought to be dismissed. Moreover, learned counsel for the respondent has sought costs of the appeal. 21. Having reviewed the record of appeal; and upon taking into account the written submissions filed by and on behalf of the parties, I come to the conclusion that the determination of the subject appeal turns on one salutary issue, namely; whether the appellant has established and or proven a basis to warrant interference with the discretion of the learned magistrate at the foot of the ruling rendered on 17th December 2024. 22. Before venturing to address the salutary issue highlighted in the preceding paragraph, it is instructive to take cognizance of the fact that the ruling of the learned trial magistrate rendered on 17th December 2024; was based on the exercise of judicial discretion. To the extent that the appeal challenges exercise of judicial discretion, it was incumbent upon the appellant to demonstrate that the learned magistrate either took into account extraneous factors; failed to take into account relevant factors, misapprehended the relevant principles attendant to setting aside of Ex-parte judgment or better still proceeded on a wrong premise and thus arrived at an erroneous conclusion. 23. The parameters to be deployed by the first appellate court while dealing with an appeal seeking to impeach [impugn] the exercise of judicial discretion were highlighted/expounded in the case of Mbogo vs Shah (1968) E.A where the Court of Appeal for Eastern Africa stated thus; “ An appellate court will interfere if the exercise of the discretion is clearly wrong because the Judge has misdirected himself or acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. It is trite law that an appellate court should not interfere with the exercise of the discretion of a Judge unless it is satisfied that the Judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result there has been injustice.” 24. Having taken cognizance of the guiding principle[s] that underline the circumstances under which the first appellate court may interfere with the discretion of the court of first instance, I am now well positioned to interrogate the ruling of the trial court and to discern whether the discretion was properly/ judiciously exercised or otherwise. 25. To start with, it is important to highlight that the appellant herein was duly served with the summons to enter appearance and plaint. It is also common ground that the appellant duly entered appearance and thereafter filed a notice of preliminary objection. However, despite filing the notice of preliminary https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7040/eng@2025-10-16 4

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objection, the appellant failed to serve same on the adverse party, namely; the respondent. This much is captured at the foot of paragraph 3 of the ruling of the trial court. 26. Additionally, it is apparent that despite being afiorded various opportunities and indulgencies to file and serve the requisite pre-trial documents, the appellant herein failed to seize the opportunity. For good measure, the appellant failed to file any list and bundle of documents even after being afiorded the opportunity on 3rd August 2022. [See paragraph 4 of the impugned ruling]. 27. Other than the foregoing, it is also important to underscore that the appellant was variously served with the hearing notices pertaining to the scheduled hearings. Indeed, the appellant was privy to and knowledgeable to the hearing date of 20th April, 2023. However, the appellant failed to attend court and participate in the proceedings. 28. The sum total of what I have highlighted and which are well enumerated in the body of the impugned ruling demonstrates that the appellant was out to frustrate; delay; obstruct; and or defeat the hearing and determination of the suit in the subordinate court. The conduct of the appellant was deliberate and intentional. Such conduct cannot accrue favourable exercise of judicial discretion. 29. The learned magistrate indeed appreciated the factual circumstances surrounding the matter in the subordinate court; took into account the antecedent conduct of the appellant; appraised herself of the legal principle that the discretion of the court is not intended to help a party who has demonstrated a habit of defeating the due process of the court; and thereafter arrived at the inevitable conclusion. 30. On my own, I have reviewed the ruling of the learned trial magistrate and I beg to state that the ruling under reference accords with the established principles of the law underpinning exercise of discretion in the court. I am in total agreement with the conclusion of the learned magistrate. [See the principles that were highlighted by the court of appeal in the case of Philip Keiptoo Chemwolo vs Augustine Kubende & another (1986) eKLR]. 31. Before concluding on this matter, it is important to underscore that it behooves all litigants, the appellant not excepted, to conduct themselves with due diligence and to assist the court in achieving the overriding objectives. [See Section 1B of the Civil Procedure Act]. [See also the holding of the Court of Appeal in the case of Said Sweillem Gheithan Saanum vs The Commissioner of lands [sued through the Hon. A.G] (2015) eKLR] 32. Where a party conducts him/herself in a manner that derails the court process, such a party cannot subsequently revert to court and cry wolf. In this matter, the appellant spread his own bed and same must now be allowed to lie on same. 33. Additionally, a party cannot disregard various directions of the court and after the court bites, same returns to court and contend that he/she has been condemned unheard. I hasten to state that the right to be heard does not mean that a party must be compelled to be heard. On the contrary, the right to be heard denotes that a party must be granted reasonable notice; opportunity; and facilities to be heard. As to whether the party seizes the opportunity to be heard is upto the party concerned. 34. Finally, disregard of directions and orders of court have legal consequences. This was the position espoused by the Court of Appeal in the case of Tana Teachers Cooperative and Credit Society Ltd vs Andriano Muchiri (2018) eKLR. 35. In a nutshell, I come to the conclusion that the appellant has neither established nor demonstrated improper or injudicious exercise of discretion by the learned magistrate. On the contrary, the impugned ruling demonstrates proper appreciation of the applicable principles; and exercise of discretion by the magistrate in declining to set aside the Ex-parte judgment. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7040/eng@2025-10-16 5

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Final Disposition. 36. For the reasons which have been highlighted in the body of the Judgment, it is apparent that the subject appeal is devoid and bereft of merits. Moreover, the conduct of the appellant, which is duly enumerated in the body of the ruling does not warrant exercise of equitable discretion in his favour. 37. In the upshot, and for the reason[s] alluded to; the final orders of the court are as hereunder; 38. i. The Appeal be and is hereby dismissed. ii. The Ruling of the learned magistrate [Hon. R. Ongira – SRM] be and hereby afirmed. iii. Costs of the Appeal be and are hereby awarded to the Respondent. It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 16TH DAY OF OCTOBER 2025. OGUTTU MBOYA, FCIArb; CPM [MTI-EA]. JUDGE In the presence of: Hussein – Court Assistant Mr. Miriti for the Appellant Miss Bett holding brief for Mr. Kiogora Arithi for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7040/eng@2025-10-16 6

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