Adhiambo v Ochiel (Environment and Land Appeal E009 of 2025) [2025] KEELC 8065 (KLR)

5. 1. That the Learned Trial Magistrate erred in law and fact by failing to exercise her discretion judiciously by summarily dismissing the applicant's application. 2. That the Learned Trial Magistrate erred in law and fact by wholly misapplying her judicial discretion in the circumstances obtaining in this case. 3. The Learned Trial Magistrate erred in law and fact by dismissing the applicant's application anchored on Article 10(1)(b), 10(2)(b) and 159(2)(d)(e) of the Constitution of Kenya, 2010 and Section 3A of the Civil Procedure Act. 4. The Learned Trial Magistrate erred in law and fact in dismissing the application without according the appellant fair hearing. 5. That the Learned Trial Magistrate abdicated her statutory duty in failing to address the substantial issues raised regarding the applicant's application thus causing a miscarriage of justice and arriving at a wrong verdict. 6. That the learned Trial Magistrate erred in dismissing the applicant's application for setting aside Judgment and decree for noncompliance with directions of the court and nonappearance of parties when indeed there was substantial compliance 7. That the Learned Trial Magistrate failed to appreciate the guiding principle regarding land matters that all land matters shall be at all times heard on merit and parties accorded equal opportunities before the court. 8. That the Learned Trial Magistrate failed to appreciate under Order 10 Rules 4,9,6 and 10 of the Civil Procedure Rules, Interlocutory judgment cannot issue in land matters unless the claim is accompanied by a prayer for pecuniary damages. On the basis of the above grounds, it is proposed to ask this court for orders that: 1. The appeal be allowed and the orders of the subordinate court be set aside on such terms and conditions just and fit. 2. The ruling and orders of Hon. Lester Simiyu, P.M. in ELC CASE NO. E010 OF 2021 at Siaya Principal Magistrate's Court, delivered on the 14th day of April, 2023 be set aside. 3. The costs of the appeal be granted to the appellant. Submissions 6. The appeal was heard by way of written submissions. The appellants submissions are dated 21/04/2025. 7. It is urged that on the said 14/04/2023 the application was coming up for mention to confirm compliance and fix a ruling date. That the appellant had complied. That the court then ought to have proceeded and issued a ruling date as opposed to taking a very drastic measure of dismissing the application in the manner it did. 8. It is submitted that the trial court actions above were not justifiable in a democratic society in the wake of the Constitution of Kenya, 2010 and most importantly a safeguard to property rights under Article 40 thereof. The actions are termed arbitrary and reliance is placed on the case of Martha Wangari Karua. 9. It is submitted that under Article 159 of the Constitution of Kenya and Sections 1A and 1B of the Civil Procedure Rules, 2010, the court has inherent powers and by way of approach, the court is enjoined https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8065/eng@2025-11-20 2

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at all costs to do justice to parties who appear before it as opposed to ousting parties from the seat of justice. That dismissal of a suit without hearing it on merit is such a draconian act comparable only to the proverbial "Sword of the Damocles". That justice is to all the parties not only to the Plaintifi. 10. Reliance is placed on the Supreme Court of Kenya case in Raila Odinga & others v IEBC & 3 others Petition No. 5 of 2013 and the Court of Appeal in Nickolas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR wherein it was stated that non-compliance with procedure and form should not be allowed to trump the primary object of dispensing substantive justice to the parties. 11. It is asserted that the right to be heard is now a constitutional principle in Kenya which applies in equal measure to all proceedings, investigations and hearings whether judicial or administrative. 12. That in all circumstances, there was no way the matter ought to have been listed for formal proof with all the material before court demonstrating that service was never efiected and further the defendant was sick. 13. It is emphasized that the trial Court, in exercising its discretion, should have opted for the lower rather than the higher risk of injustice that it has now occasioned the appellant. The court was referred to the case of Branco Arabe Espanol vs. Bank of Uganda [1999] 2 EA 322, 14. The case of Karanja Kamani v Isaac Mwangi Kimani (2018) eKLR, is cited where the court held that: "Under Order 10 Rules 4,6,9 and 10 of the Civil Procedure Rules Interlocutory judgment cannot issue in land matters unless the claim is accompanied by a prayer for pecuniary damages." 15. It is urged the claim before this court was not one seeking pecuniary damages and neither was it one for detained goods. It was a case seeking declaration of ownership of land a mandatory injunction. That where no appearance is filed to such a suit, or an appearance is filed and no defence is filed within the specified period, the avenue of the plaintifi is to apply for a date for hearing. Respondents Submissions 16. The respondents submissions are dated 21/5/2025. The respondent plaintifi case is that he filed for request for judgment in the matter on 23/03/2022, and the trial court issued a mention notice for 28/04/2021 and directed the same to be served upon the appellant (defendant) which mention notice was indeed served upon the appellant at his home on 24/4/2021 and an afidavit of service filed in court on 28/4/2021. 17. It is submitted that the Afidavits of services dated 30/8/2021, 15/11/2021, and 25/02/2022, amongst others were filed in the trial court as evidence of service of court dates for 7/7/2021,1/9/2021, 24/11/2021, 24/12/2021 and 2/3/ 2022 still by the same court process server who had knowledge of the appellant's residence having been serving him with documents in the course of the suit's proceedings. The appellant never honoured any of the court dates. 18. It is asserted the appellant had enough time to file his defence within 14 days as required under Order 7 rule 1 of the Civil Procedure Rules. Moreover the evidence of the hospital documents on record relied on by the appellant he had Six (6) months between entering appearance in the matter and starting treatment at the hospital. It is not disclosed what he was doing during this time. 19. Counsel adds that it is trite law that rules of procedure and timelines fixed by the courts must be honored for certainty purpose and proper case management. Reliance is placed in Nicholas Kiptoo Arap Korir Salat Vs Independent Electoral and Boundaries Commission and 6 Others (2013) eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8065/eng@2025-11-20 3

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20. It is posited that Court orders are sacrosanct and must be obeyed at all times without excuse. Courts cannot be summoned to come into the aid of the indolent and that equity frowns the indolent. See Hadkinson v Hadkison (1952) 2All ER 567. 21. It is urged the appellant was to blame for what befell him for failing to act timely or file defence . He was the author of his own problems It is urged a party who seeks to set aside an ex-parte judgment or ruling must convincingly persuade the court that s/he did not contribute to the ex-parte judgment being entered against him/her. An indolent litigant will not benefit from court’s discretionally powers to set aside an ex-parte judgment or ruling. 22. It is submitted that in disputing the subsequent service of court dates, the appellant failed to bring to the attention of the court vide his then application whether he was going to file a notice to crossexamine and/or cross-examine the court process server on legality of his filed afidavits of services to afirm his claim. Thus, rendering the filed afidavits of services by the court process server George Oluoch Rathing un-challenged in whatever ground. 23. It is stated that the lower court judgment delivered on 27/4/2022 had already been executed as to its terms and the terms of the drawn Decree issued on 18/07/2022 by having the appellant’s name cancelled in the parcel file’s register of land L.R No. Siaya/Ojuando „A#/1023 which was initially wrongly registered in the name of the appellant herein and inserting the respondent’s name on 15/09/2022. 24. The appeal is termed malicious, vexatious, a gross abuse of the court process and judicial time and for dismissal. Analysis and Determination 25. 26. Upon considering the foregoing and the grounds of appeal I have compressed the main issues for determination as follows 1. Whether the Trial Magistrate erred in law and fact by failing to exercise her discretion judiciously by summarily dismissing the applicant's application. 2. Whether the Learned Trial Magistrate abdicated her statutory duty in failing to address the substantial issues raised regarding the applicant's application thus causing a miscarriage of justice and arriving at a wrong verdict. 3. That the Learned Trial Magistrate failed to appreciate under Order 10 Rules 4,9,6 and 10 of the Civil Procedure Rules, Interlocutory judgment cannot issue in land matters unless the claim is accompanied by a prayer for pecuniary damages. 4. What orders as to costs. As this is a first appeal, it is the Court’s duty to analyze and re-assess the evidence on record and reach its own independent decision in the matter as provided by Section 78 of the Civil Procedure Act. See the case of Selle v Associated Motor Boat Co. [1968] EA 123 where the Court held that; “ An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefiy put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8065/eng@2025-11-20 4

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due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan(1955), 22 E. A. C. A. 270). Whether the Trial Magistrate erred in law and fact by failing to exercise her discretion judiciously by summarily dismissing the applicant's application. 27. It is noteworthy that what is sought to be set aside are the orders of the trial court made on 12/4/2023 that efiectively summarily dismissed the defendants appellants application dated 7/3/2023. The circumstances under which the application was dismissed have been highlighted by both parties. 28. The proceedings of 12/4/2023 are available at page 86 of the Record of Appeal. The record reveals that the subject of the proceedings is the application dated 7/3/2023. Both parties were absent. The trial court observed that the directions issued on 7/3/2023 had not been complied with and that the applicant was also absent. The trial court ordered as follows;‘ I order that application dated 7/3/2023 is dismissed for non compliance with directions and court (sic) and non appearance of applicant’ 29. It is contended by the appellant that the orders were fiawed for the reason that the trial court next step was to reserve the application for ruling instead of dismissing the same. 30. From the proceedings it is clear that the dismissal was on two fronts firstly noncompliance of the courts directions issued on 10/3/2023 and non-appearance. 31. As regards noncompliance, the record of proceedings of 10/3/2023 (see page 85 of the ROA) show that the trial court perused the said application that had been filed under Certificate of Urgency and ordered as follows;1. Application certified as urgent 2. Applicant to serve application and written submission within 7 days of today and by 17/3/2023 3. Respondent to file and serve response and submission within 14 days and by 31/3/2023 4. Supplementary submission and further afidavit be filed and served within 7 days by 7/4/2023 5. These directions be extracted and served by applicant in 7 days of today 6. Return of service be filed by each party 7. Mention to issue ruling date on 12/4/2023. 32. Having set out the above directions the question that I must consider is whether the directions were complied with. It is contended the application was served together with the written submissions and that the plaintifi had equally complied by filing his replying afidavit. 33. At page 52 of the record of appeal is the extract of the order dated 9/3/2023 and issued on 29/3/2023. The same bears a received stamp by the firm of JDOK Advocates dated 29/3/2023. At page 53 is a Replying Afidavit sworn by Philip Owino Ochiel (the plaintifi) and bears the court stamp of 5/4/2023. At page 49-50 is the Defendants Written Submissions filed on 29/3/2023 bearing a Received https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8065/eng@2025-11-20 5

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stamp by JDOK Advocates of the same date. I must note that I did not come across the submissions of the respondent plaintifi. 34. From the above documentation it is clear that the applicant plaintifi in the application had fully complied with the orders of the trial court by 29/3/2023 and which was ahead of time. It is also clear that the respondent had responded to the application having been served. In view of this therefore the trial court erred in dismissing the application on the basis of noncompliance with the courts directions. 35. There having been compliance I respectfully agree with the appellants position that the trial court was expected to fix a date for ruling in accordance to the directions issued. 36. The other limb was the dismissal based on nonattendance. The record bears that indeed both counsels did not attend court. What does the law provide as to consequences of nonattendance. The trial court did not cite any specific provisions. 37. Order 12 is on Hearing and Consequence of non attendance. Under Order 12 Rule 1, the court has discretion where a suit has been fixed for hearing and called out on the day and neither party attends, the suit may be dismissed. While what was before court was an application the provisions of Order 12 serve as a guide. It is clear that parties failed to attend court. But what I must consider is the purpose for which the application had been fixed before court. 38. It is noteworthy that the application had been scheduled for Mention and not for its hearing. Dismissing the application for nonattendance of the applicant was also not the trajectory to take since the application had not been set down for hearing for the court to make a substantive order such as dismissal. Its dismissal could also not be supported by the provisions of Order 12 Rule 1 which envisages a matter set down for hearing and not Mention. 39. As already seen the power donated to the court to dismiss a matter for nonattendance is discretionary. I’m aware that as the Court determines this Appeal, it takes into account that it will only interfere with the discretion of the trial Court where it is shown that the said discretion was exercised contrary to the law or that the trial Magistrate misapprehended the applicable law and failed to take into account a relevant factor or took into account an irrelevant factor or that on the facts and law as known, the decision is plainly wrong. See the case of Mbogo vs Shah (1968) EA at Page 93 where the Court held that:“ I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior Court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted on because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 40. Based on my discussion aforegoing and guided by the above case law then there is every reason for this court to interfere with the discretion of the trial court. The trial courts decision to dismiss the application summarily was clearly wrong. The court also failed to consider that the applicant had complied with the directions issued and the respondent though partially but by filing the substantive pleading. The application ought to have been set down for ruling for a decision to be rendered on its merits on the application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8065/eng@2025-11-20 6

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41. Having made the above finding what should be the next step for the court to do. The duty of an appellate court is stipulated under Section 78 of the Civil Procedure Act which reads; “ Subject to such conditions and limitations as may be prescribed, an appellate court shall have power; 1. (a) (2) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require the evidence to be taken; (e) to order a new trial. Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.” 42. Applying the above, it is my considered view that the application should be remitted to the trial court for consideration on its merits and a ruling rendered. I will therefore not delve into the other issues I had earlier identified. 43. The upshot of the foregoing is that the appeal succeeds on grounds of appeal numbers 1- 6. There shall be no orders as to costs. It is so ordered. DATED, SIGNED AND DELIVERED AT SIAYA THIS 20TH DAY OF NOVEMBER 2025 JUDGE HON. A. E. DENA JUDGE 20/11/2025 Judgment delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: Mr. Oduol for the applicant James Awor Odhiambo Defendant Court assistant: Ishmael Orwa https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8065/eng@2025-11-20 7

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