Mwevala v Mutinda (Environment and Land Appeal E009 of 2023) [2025] KEELC 7948 (KLR)

6. That the learned magistrate asked herself (sic) the wrong question. 3. The appellant asked that the ruling made on 24/8/2023 be set aside with costs to himself. 4. The appeal was canvassed by way of written submissions. The appellant’s submissions are dated 25/11/2024. The appellant submitted, inter alia, that it was wrong for the trial court to dismiss the suit summarily. The decision was said to be draconian. According to the appellant, the suit that was struck out was difierent from the one that had earlier been dismissed. 5. It was the appellant’s position that as the alleged trespass was continuous, it attracted a fresh cause of action. The prayers sought in the earlier suit that was dismissed (the suit being CC No. 154/2001, Kitui) were set out in the submissions to emphasize the point that the suit that was struck out was a difierent one. 6. The lower court was further faulted for not considering the grounds on which the application to reinstate the struck-out matter was based. It was reiterated that the appellant should have been given an opportunity to be heard. 7. The respondent’s submissions are dated 10/7/2015. The respondent submitted that grounds 1 to 3 as formulated in the memorandum of appeal relate to orders that were made by the lower court on 28/10/2021. The orders essentially struck out the appellant’s suit. The appellant had thirty (30) days to appeal but he didn’t file an appeal. The respondent’s submission is that in this appeal, it is improper for the appellant to raise grounds relating to striking out of his suit while he failed to seize the thirtyday period made available to him to appeal against the striking out of his matter. 8. The respondent pointed out that instead of appellant appealing against the striking out of his case, he went to the same trial court much later with an application to reinstate the matter. That is the application which is, or should be, the subject of this appeal. The respondent submitted that that application was largely based on the ground that the appellant was old, a lay person, had a hearing problem, and didn’t understand the court process. 9. The respondent submitted that grounds 1 to 3 were an abuse of the court process and should therefore be struck out. He further submitted that though the appellant may be said to be a lay person, he had filed the suit as well as a list of documents. He further served the documents and was given a hearing date. Besides, that was not the first time the appellant had filed pleadings in court. He had an earlier case that was dismissed. All this was pointed out to show that the appellant was not a stranger to court proceedings. 10. Further, the respondent averred that when the application to strike out the appellant’s suit was filed, the appellant donated a power of attorney to one Daniel Somba Kisoso. All this was said to be indicative of the fact that appellant was in fact not a stranger to and was indeed conversant with the court processes. 11. And contrary to the submissions by the appellant that the lower court mis-applied the law, the lower court was said to have properly directed its mind on the law including the continuous nature of trespass. 12. This court was urged to dismiss the appeal with costs. 13. I have considered the appeal as filed, rival submissions, and the lower court record generally. This is not an appeal against the striking out of the appellant’s suit. It is an appeal against refusal by the lower court to reinstate the suit. Quite clearly, grounds 1 to 3 of the appellant’s appeal are focused on the reasons for striking out his matter. If the appellant wanted to appeal against striking out of his matter, he should have done so within the thirty-day period usually provided for by law. He cannot be entertained or allowed to do so via this appeal which was filed more than one year after the suit was struck out. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7948/eng@2025-10-16 2

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14. I agree with the respondent that if the appellant wanted to appeal against striking out of his suit, he needed first to apply to court to file such an appeal out of time. What the court would need to see in this appeal are grounds showing why the lower court should not have dismissed the application meant to reinstate the suit. That application was largely premised on the grounds that the appellant was aged, a lay person, had hearing problems, and didn’t understand court processes. It was not focused on the issue of res judicata or on the application to strike out the suit. 15. As I pointed out earlier, I have looked at the record of appeal as well as the lower court record. The appellant was doing a second round in court via his suit that was struck out. He had an earlier suit that had been dismissed. The lower court record shows him as a litigant who reasonably understood well the court processes. He filed his pleadings, made available the necessary documents, ensured that service was efiected, and attended court as necessary. He at one point even appointed another person to take his place via a power of attorney. How then can one say that he didn’t know court process? 16. It is also noteworthy that in the applicant’s earlier suit that was dismissed by the court, the appellant had sought, among other things, recovery of a portion of land said to have been annexed from his land parcel No. Mbitini/Ikutha/252 and sold to the respondent in this appeal. That earlier suit was said to have been dismissed and his recovery of the alleged annexed portion did not therefore succeed. 17. In the latter suit that was struck out, the appellant is shown praying for a declaration that he is the rightful owner of parcel No. Mbitini/Ikutha/252. That suggests to this court that he is seeking to be declared the owner of the entire parcel of land including the portion he was seeking to recover in the earlier suit. This seems to me to be a back-handed way of trying to re-urge before the court the same prayer of recovery of that portion through the declaratory prayer sought in the latter suit. The prayers as urged in the two suits may not be stated in the same words. But the purpose to be served if the prayers are granted is similar. It appears clear to me that the appellant wanted to achieve in the suit that was struck out what he didn’t get in the earlier suit. The lower court saw through the appellant’s deceptive stratagem and struck-out his entire suit. 18. Even if the appellant is allowed to proceed with the suit, which in my considered view would be wrong, it seems to me clear that any competent court of law would not treat the respondent as a trespasser of the same portion of land that the appellant had tried and failed to recover in the earlier suit. 19. The upshot, in light of the foregoing is that the appeal before me is unmeritorious. The lower court appreciated the matter before it well and saw through the appellant’s disguised attempt to have a second bite at the cherry. 20. I therefore dismiss the appeal before me with cost to the respondent. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT KITUI THIS 16TH DAY OF OCTOBER, 2025. In the presence of; Court Assistant – Musyoki Tamata for Appellant Kalili for Respondent Appellant – absent Respondent - absent A. KANIARU https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7948/eng@2025-10-16 3

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JUDGE- ENVIRONMENT & LAND COURT, KITUI https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7948/eng@2025-10-16 4

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