Mattu v Ngoma

1. An order of permanent injunction do issue restraining the Defendant/Respondents, their agents, servants or anyone acting or claiming through them from entering, trespassing, subdividing, registering and or in any other manner interfering with the Plaintis parcel of land being Plot No. Makueni/Unoa/3769 being a subdivision of what was formerly Makueni/ Unoa/236 and further subdivided to form Makueni/Unoa/6348-6360. 2. An order for cancellation of all titles, subdivisions and all entries made in land parcel No. Makueni/Unoa/6348-6360 which are subdivisions of Makueni/Unoa/3769 being a division of what was formerly Makueni/Unoa/236. 3. Costs of this suit. 3. The Appellant is a brother to the 2nd Defendant. The two had led a joint defence through the rm of Joe N. Mwanthi & Co. Advocates. On 16th June, 2023 the rm of Joe N. Mwanthi & Co. Advocates led an application to cease acting for the Appellant. This application was allowed on 31st August, 2023. The case was then set for hearing on 11th October, 2023. On 11th October, 2023, the hearing proceeded in the absence of the Appellant who had been duly served through the adavit of service wrongly described him as 2nd Defendant in paragraph 2 and 3 but paragraph 1 describes him correctly. The hearing notice and order to cease acting clearly shows him as the one to be served. The Respondent’s case was closed and defence hearing was set for 29th November, 2023. The case was heard and concluded on 29th November, 2023. A date for submissions was given. 4. A judgment was delivered on 11th April, 2024 whereby the Respondent’s suit was dismissed with costs on ground that the Appellant had no title to pass to the Respondent. On 16th May, 2024, the Respondent led an application seeking to review the judgment of 11th April, 2024. This application was heard and a ruling was delivered on 20th June, 2024. It is this ruling which triggered this appeal. Submissions by parties 5. The court directed parties to le written submissions. The Appellant led his submissions dated 16th April, 2025. The Respondent led his submissions dated 22nd April, 2025. Appellant’s submissions 6. The Appellant submitted that the trial magistrate erred in law and in fact by condemning him unheard. He submitted that he was not served with a hearing notice for the application for review which resulted in the court ordering specic performance of the agreements entered by him with the Respondent. The Appellant submits that as the rm of Joe N. Mwanthi & Co. Advocates ceased to act for him, the joint defence which had been led was abandoned and that he was entitled to be served with the application for review. 7. The Appellant relied on the case of Kenya Human Rights Commission v Attorney General; Law Society of Kenya (Interested Party) (Constitutional Petition 87 of 2017) (2024) KEHC 2998 (KLR) (Constitutional and Human Rights) (15 March, 2024) (Ruling) which quoted a case from the Supreme Court of India in Sangrem Singh v Election Tribunal, Kotech AIR 1955 SC 664; 1955 AIR 425, 1955 SCR (2) where it was stated thus: “ There must be ever present in the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that aect their lives https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18695/eng@2025-07-31 2

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and property should not continue in their absence and that they should not be precluded from participating in them”. 8. The Appellant also relied on the case of James Kanyita Nderitu v Maries Philotas Ghika & Another (2016) eKLR where the court of Appeal stated as follows: “ The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system”. 9. The Appellant also submitted that the trial magistrate has no jurisdiction to entertain the application as the suit property was valued at Kshs.30,000,000/= when the magistrates monetary jurisdiction was Kshs.20,000,000/=. He relied on the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others (2012) eKLR where it was held as follows: “ A court’s jurisdiction ows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law….. the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings……. Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the Constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can parliament confer jurisdiction upon a court of law beyond the scope dened by the Constitution. Where the Constitution confers power upon parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law”. 10. Lastly, the Appellant submitted that there was no evidence that there were transfers to persons who had purchased property before grant of letters of administration were issued. He submitted that the green cards which were exhibited in the application for review showed that the transfers were made after the 2nd Defendant had obtained a conrmed grant and there was no evidence that agreements resulting in the transfers were made before grant of letters of administration. Respondent’s Submissions 11. The Respondent submitted that the assertions by the Appellant that he was not served are not true. He submitted that in the lower court ruling, he discredited the Appellant’s argument that he was all along unaware of the proceedings. He submitted that the counsel who was acting for the Appellant before he withdrew, served notices upon the Appellant. He submitted that the Appellant was aware of the proceedings before the lower court including the application for review but he chose not to participate. The Appellant only came up after the ruling which allowed the review. 12. The Respondent submitted that the Appellant had slept on his rights. He relied on the case of Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi (2014) eKLR where the court quoted from Snell’s Equity by John Mc’Ghee QC 31st Edition at page 99 where it was stated as follows: “ The court of equity has always refused its aid to stale demands where a party has slept upon his rights……nothing can call this court to activity but conscience, good faith and reasonable diligence; where this want the court is passive, and does nothing”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18695/eng@2025-07-31 3

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13. On the issue of jurisdiction, the Respondent submitted that the issue of jurisdiction was never raised before the lower court and that by raising it at appellate stage, the Appellant is abusing the process of the court. He submitted that the Appellant’s choice not to participate in the proceedings made him submit to the jurisdiction of the court. 14. The Respondent submitted that the Appellant was bound by his pleadings and cannot raise the issue of jurisdiction which was not raised in the lower court. He relied on the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd (2018) eKLR where Justice Mrima quoted the case of Muchiri v Boresha Maisha Self Help Group (Civil Appeal) 38 of 2022) (2024) KEHC 2488 (KLR) (11th March, 2024) (Judgment) where it was stated as follows: “ 11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-armed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 others (2014) EKLR which cited with approval the deision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) v Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance place of pleadings:“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way which is at variance with the averments of the pleadings goes to no issue and must be disregarded…… In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new station”. 15. The Respondent submitted that he had demonstrated to the trial court that there was discovery of new evidence which came to his knowledge after conclusion of the case and the evidence was of material importance. The new evidence included the fact that the 2nd Defendant was selectively transferring properties to persons who had purchased land before grant of letters of administration were issued. He submitted that he had discharged the burden on him by Order 45 Rule 3(2) of the Civil Procedure Rules. Analysis and Determination 16. I have carefully considered the grounds of appeal in the memorandum of appeal as well as the submissions by the parties. The issues which emerge for determination are rstly whether the Appellant was condemned unheard. Secondly, whether the Respondent had proved that he was entitled to a review of grounds of discovery of new evidence. Thirdly, which order should be made on costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18695/eng@2025-07-31 4

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17. The duty of a rst appellate court was stated in the case of Abok James Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR as follows: “ This being a rst appeal, we are reminded of our primary role as a rst appellant court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia that:“On a rst appeal from the High Court, the Court of Appeal should 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 due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence”. 18. I notice from the submissions of both the Appellant and the Respondent that they have submitted on jurisdiction. There was no issue of jurisdiction raised in the grounds in the memorandum of appeal. There was no amounted memorandum of appeal led. I will therefore ignore the issue of jurisdiction. 19. On the issue of being condemned unheard, I have gone through the record of appeal and the pleadings and proceedings in the lower court le. It is clear that the Appellant granted authority to the 2nd Defendant to swear adavits on his behalf and to attend court to testify and adduce documentary evidence on his behalf. This authority was led in court on 4th September, 2020. This authority was led in accordance with the provisions of Order 1 Rule 13 (1) and (2) of the Civil Procedure Rules which states as follows: “ (1) Where there are more plaintis than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding. (2) The authority shall be in writing signed by the party giving it and shall be led in the case”. 20. The Appellant has never revoked this authority. This authority was given to the 2nd Defendant personally by the Appellant. Though the advocate who was acting for both the Appellant and the 2nd Defendant ceased to act for the Appellant and proceeded to act for the 2nd Defendant, this did not in itself revoke the authority which he had given to the 2nd Defendant to plead and sign adavits on his behalf. This being the case, the Appellant cannot be heard to say that he was condemned unheard. As long as the authority to plead and sign remained valid and unrevoked it is taken that whether was done by the 2nd Defendant was done on behalf of the Appellant as well. 21. On the issue as to whether the Respondent had met the threshold for grant of a review on account of discovery of new evidence, it is clear that there was no material placed by the Respondent to prove his allegations that there were people who had purchased land before grant of letters of administration in respect of the Estate of Jaspher Nangi Mattu. The green cards which were before the trial court clearly showed that the transfer and registration in the name of the 2nd Defendant was done after the 2nd Defendant obtained a conrmed grant. There was no evidence adduced to show that any of the alleged neighbours of the Respondent had purchased their parcels before issuance of grant of letters of https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18695/eng@2025-07-31 5

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administration and that transfer in their favour was eected after grant was issued. The Respondent did not discharge the burden which was on him as per Order 45 Rule 3(2) of the Civil Procedure Rules. 22. The Respondent having failed to prove discovery of any new evidence, which he could not have been in a position to obtain at the time of the judgment which was under review, the trial magistrate had no option of reviewing the judgment on the ground that he was enforcing equity by bringing the Appellant to the same level of those who were in similar situation like he was. These persons were unnamed and there is no basis upon which the trial magistrate would have reviewed the judgment on this ground. Disposition 23. From the above analysis I nd that the Appellant has succeeded on the second ground in his memorandum of appeal. I proceed to set aside the ruling of the trial magistrate delivered on 20th June, 2024 and in place thereof, I make an order dismissing the Respondent’s notice of motion dated 16th May, 2024 with no order as to costs as the Appellant was the one behind the predicament the Respondent nds himself in ………………………………….** HON. E. O. OBAGA JUDGE JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST JULY, 2025. In The Presence Of: Ms. Nzuki for Appellant Ms. Mutua for Respondent Court assistant – Steve Musyoki Page | 3 ELC APPEAL NO. E008 OF 2024 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18695/eng@2025-07-31 6

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