Laare Coffee Factory

JUDGMENT Introduction 1. This appeal was lodged by M/s Laare Coffee Factory through their Chairman, Lawrence M’Mauta. The appeal challenged the ex-parte Judgement of the Chief Magistrate Court at Maua, rendered on 6/4/2023 in Maua CMC Civil Case No 221 of 2021. Vide a ruling of this court dated 5/2/2026, Government the County of Meru [the 5th respondent in the appeal] was granted leave to bring a crossappeal, similarly challenging the said ex-parte Judgment. 2. The suit culminating in the impugned Judgment was initiated by the late John Kaberia M’Ikirima on 27/11/2017. He sought an order decreeing rectification of the land registers and survey maps relating to parcel numbers Ithima/Ntunene/11 and Ithima/Ntunene/1171 to “reinstate 0.66 acres to parcel number Ithima/Ntunene/11 as originally demarcated” during the statutory land adjudication exercise. At the time of disposing the suit, evidence before the disclosed that: (i) trial court parcel number Ithima/Ntunene/11 was demarcated and registered in the name of the late Ikirima Mutia on 10/3/1976; (ii) a title deed was issued to the late Ikirima Mutia on 10/9/1993; (iii) the land was registered in the name of John Kaberia M’Ikirima on 21/7/2014 pursuant to succession orders issued in Maua CMC Succession Cause No. 42 of 2010; (iv) the land register relating to the said parcel was closed on 10/9/2014 following a subdivision by John Kaberia M’Ikirima; and (v) the subdivision culminated in the creation of four parcels, Ithima/Ntunene/3932 – 3935. ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 2

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3. The evidence placed before the trial court further revealed the following: (i) parcel number Ithima/Ntunene/1171 was demarcated and subsequently registered in the name of Meru County Council on 10/3/1976; (ii) the land measured 1.9 hectares; and (iii) the County Council caused an entry to be made in the Easement Section of the land register, reserving the land for a coffee factory at Laare. 4. Further, the record before the trial court showed that, while disposing the appellant’s application dated 26/1/2022, the trial court ordered joinder of the County Government of Meru as the 5th defendant in Maua CMC Civil Case No 221 of 2017 but the 1st respondent [the plaintiff] did not subsequently amend its pleadings to plead any specific allegation or seek any specific relief against the County Government. 5. Against the above background, the trial court heard the case ex-parte and granted rectification orders relating to the closed register as sought in the amended plaint. It is not clear if the decree was enforced in relation to the closed register and how that would be possible. 6. Some of the key issues falling for determination in the appeal and in the cross-appeal are: (i) Whether the 1st respondent proved fraud by the appellant in the registration of land parcel number Ithima/Ntunene/1171, measuring 1.9 hectares in the name of Meru County Council; and (ii) Whether the reliefs sought in the 1st respondent’s pleadings were available as against the cross-appellant [the County Government of Meru] in the absence amended pleadings setting out particulars of alleged fraud by the cross-appellant ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 3

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in relation to the registration of land parcel number Ithima/Ntunene/1171 measuring 1.9 hectares. Before I analyse and dispose the key issues that fall for determination in the appeal, I will briefly outline the background to the appeal; the grounds of appeal; and the parties’ respective submissions in the appeal. 7. For convenience, the parcel numbers featuring in the appeal will be identified without capturing their common prefix relating to their common section and block details, namely, Ithima/Ntunene. For instance, land Ithima/Ntunene/11 will be identified parcel number simply as parcel number 11. Background 8. The 1st respondent initiated Maua CMC Civil Case No 221 of 2017 vide a plaint dated 24/10/2017, in which he sued the following: (i) Laare Coffee Factory [1st defendant]; (ii) District Land Adjudication and Settlement Officer – Igembe [2nd defendant]; (iii) District Land Registrar – Igembe [3rd defendant]; and (iv) Attorney General [4th defendant]. The plaint was amended on 25/5/2018. The amendments of 25/5/2018 merely changed the identification of one of the two affected parcels, Ithima/Ntunene/117 to read Ithima/Ntunene/1171. Although the court ordered joinder of the County Government of Meru as a 5th defendant in the matter, the 1st respondent did not take steps to amend the pleadings to make any allegation or plead any relief against the County Government. ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 4

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9. The case of the 1st respondent was that he was the administrator of the estate of the late M’Ikirima Mutia by virtue of a grant issued to him in Maua CMC Succession Cause No 42 of 2010. In the 1970s, the late Mutia gathered three (3) fragments of land totaling 70,363 square feet and the three fragments were subsequently consolidated as parcel number 11 measuring 1.62 acres after deducting 0.05 acres ceded for public utilities. 10. The 1st respondent averred that, vide Objection No 134, the Land Adjudication Officer hived off 0.66 acres from the late Mutia’s land and amalgamated the hived portion with parcel number 52 belonging to one M’Muithu Ithiri without making any compensation to the late Mutia. The 1st respondent contended that the said amalgamation was not completed because records revealed that parcel number 52 was given a new parcel number, to wit, number 1129, which did not include the 0.66 acre portion that had been hived from the late Mutia’s land through Objection No 134. 11. The 1st respondent stated that the late Mutia continued to occupy “his entire land as gathered”, adding that, unknown to the late Mutia, the appellant, with the assistance of some unscrupulous land officials and under the supervision of the 2nd respondent, dispossessed the 1st respondent the land. He added that the “registration process was successfully completed and the registers closed and the title deeds issued without” the late Mutia’s knowledge that his land had been taken. He contended that he discovered their land had been stolen after the death of the late Mutia, during the distribution of the late Mutia’s estate. ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 5

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12. The 1st respondent averred that the appellant and the 2nd – 4th respondents had colluded and connived to fraudulently steal their family land. He itemized various particulars of fraud by the four parties. 13. The appellant filed a statement of defence dated 1/8/2018 in which it denied involvement in fraud and averred that it was in occupation of parcel number 1171. The appellant added that the plea for an order of rectification of the land registers and maps did not accrue against it, adding that the suit was incompetent and did not disclose any reasonable cause of action against it. 14. Both the original record of the trial court and the filed record of appeal did not bear respondents. any defences by the 2nd – 4th As observed, the cross-appellant [the County Government of Meru/the 5th respondent in the Appeal] was joined to the suit as a defendant by the court on 10/5/2022 but the 1st respondent did not amend his pleadings to plead any claim against them. 15. When the suit came up for hearing on 6/10/2022, the hearing was adjourned at the request of the appellant on the ground that the appellant’s advocate seized of the matter was held up in other courts. The trial court adjourned the hearing to 26/1/2023 and condemned the appellant to pay to the 1st respondent Kshs 2,000 as costs. 16. When the matter came up for hearing on 26/11/2023, the appellant was represented by one Gitonga who informed the court that he was holding brief for a Mr Omari. No application for adjournment was made. The 1st respondent ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 6

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informed the court that the appellant had not paid him the costs awarded on 6/10/2023. The trial court proceeded to make the following verbatim order: “The 1st defendant is in breach of the order to pay costs. Matter to proceed after call over.” 17. When the matter was called out after the call over, a Mr Kiruai who held brief for Ms Materi for “the interested party” informed the court that Ms Materi was not ready for the hearing. He also informed the court that Mr Omari [Counsel for the appellant] was said to have intended to take his children to school and was not able to attend the hearing. The trial court made the following order: “My order stands”. 18. At the hearing, the 1st respondent testified as PW1. He adopted his written witness statement filed on 27/11/2017 in which he had outlined his case as summarized above. He stated that upon the death of the late Mutia, he filed a succession cause relating to his distribution of estate, he discovered surveyors, that the estate and during through the 0.66 acres were missing from the late Mutia’s land. He testified that he commenced investigations in the relevant Land Offices; called several surveyors to the ground and; made a finding that the deceased’s land was less by 0.66 acres and that the 0.66 acre was “held in the 1st defendant’s [the 1st respondent’s] land, parcel number Ithima/Ntunene/1171”. 19. The plaintiff also led evidence by his brother, Charles Mbiti Kirigua, who testified as PW2. ELCL APPEAL NO. E027 OF 2023 – JUDGMENT He did not have a prior Page 7

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written witness statement. He testified that in 2007, the 1st respondent “was chased away from his land” by the appellant, adding that the 1st respondent called him and they decided to go to the Lands Office. They checked and found that the land gathered by their late father was 1.62 acres out of which 0.05 acres was ceded for public use. Lastly, he stated that 0.66 acres was taken by undisclosed people. 20. Upon receiving evidence and submissions, the trial court reached a finding to the effect that, along the way in the course of the conduct of the matter, there was a consent to return the land to the 1st respondent and indeed on 6/10/2022 the 1st respondent confirmed that the land had been returned to him. The trial court allowed the 1st respondent’s suit as prayed in the amended plaint. Appeal 21. Aggrieved by the findings and decree of the trial court, the appellant brought this appeal advancing the following 6 verbatim grounds of appeal: 1) That the Learned Trial Magistrate erred in both law and fact in holding that the respondent’s case was not challenged yet the appellant’s statement of defence is properly on record and the appellant and their advocates were in court during the hearing but denied audience. 2) That the Learned Trial Magistrate erred in both law and fact in holding that the respondent’s ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 8

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case succeeds yet the record does not show whether the appellant closed its case. 3) That the Learned Trial Magistrate erred in law and fact in failing to give the appellant an opportunity of a fair hearing and proceeded with the suit ex-parte. 4) That the Learned Trial Magistrate erred in law and fact in visiting counsel’s mistake upon an innocent litigant. 5) That the Learned Trial Magistrate erred in law and fact in condemning the appellants unheard against the principles of natural justice and the Constitution of Kenya. 6) That the Learned Trial Magistrate erred in law and fact by addressing his mind to the objection no.134 which was not in issue in the respondent’s suit thus a miscarriage of justice. 22. Through their memorandum of appeal dated 18/4/2023, the appellant urged this court to allow the appeal and set aside the Judgment in Maua CMC E & L Case No 221 of 2017. The appellant also asked the court to award him costs of this appeal and costs of the suit in the subordinate court. 5th Respondent’s Cross-Appeal 23. Aggrieved by the findings and decree of the trial court, the 5th respondent filed a cross-appeal advancing the following verbatim grounds: 1) That the Learned Magistrate erred in law and fact by disregarding the doctrine of indefeasibility of ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 9

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title under granting the Land rectification Registration orders Act against and parcel ITHIMA/NTUNENE/1171 registered in the name of the 5th Respondent/Cross-Appellant despite the suit having been instituted against the Appellant who is not the registered proprietor, whereas rectification cannot issue against a party not sued or without a substantive claim directed at the registered owner. 2) The Learned Magistrate erred in law and fact by treating the 5th respondent/cross-appellant as a substantive defendant and faulting it for not filing a defence contrary to Order 1 Rule 10(4) of the Civil Procedure Rules, despite the plaint never having been amended or served upon it thereby condemning the 5th respondent/Crossappellant unheard in violation of Articles 25 (c) and 50 (1) of the Constitution guaranteeing the right to a fair hearing. 3) The Learned Magistrate erred in law and fact in holding that the 1st respondent had proved his case merely because the defendants did not cross-examine witnesses or tender evidence contrary to the settled principle that even in undefended suits, a claimant must discharge the burden of proof under Sections 107-109 of the Evidence Act. 4) The Learned Magistrate erred in law and fact by entering judgment in ELCL APPEAL NO. E027 OF 2023 – JUDGMENT favour of the 1st Page 10

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respondent notwithstanding that fraud, the foundation of the claim was neither specifically pleaded nor strictly proved to the heightened standard required in law and was not directed against the 5th respondent/cross-appellant as the registered proprietor of parcel Ithima/Ntunene/1171, rendering the suit fatally defective and incapable of sustaining the judgment delivered. 5) The Learned Magistrate erred in law and fact by granting a permanent injunction in favour of the 1st respondent despite the absence of proof of ownership of land parcel Ithima/Ntunene/11 and the fact that trespass was neither pleaded nor established by evidence, leaving no factual or legal foundation to justify such relief. 6) The Learned Magistrate erred in law and fact by admitting and relying on the testimony of a witness who had neither filed nor served a witness statement nor been listed as a witness contrary to Order 3 Rule (2) and Order 7 Rule 5 of the Civil Procedure Rules thereby unlawfully admitting evidence that gravely prejudiced the defendants and fatally flawed the proceedings. 7) The Learned Magistrate erred in law and fact by failing to evaluate the material inconsistencies in the 1st testimonies Respondent’s regarding and the his discovery witness’s of the alleged fraud (2007) versus 2010) and occupation ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 11

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of the suit land, contradictions which undermined credibility and rendered the claim incapable of meeting the requisite standard of proof. 8) The Learned Magistrate erred in law and fact by disregarding the overriding consideration of Public Interest, in that the suit land registered in the name of the 5th respondent/cross-appellant is held in trust for the residents of Meru County, yet ordered were granted that alienated public utility land in favour of a private claim of doubtful validity contrary to the principle that public good must prevail over individual interest. 9) The Learned Magistrate erred in law and fact by entertaining a claim filed in the personal capacity of the 1st respondent and failing to hold that in the absence of grant of letters of administration as required under Section 82 of the Law of Succession Act, he lacked locus standi to sue on behalf of his father’s estate, rendering the suit incompetent ab initio and incapable of sustaining the reliefs granted. 10) The Learned Magistrate erred in law and fact by relying on an earlier consent that had been set aside on 10/5/2022 for want of authority to find that land had been returned to the 1 st Respondent thereby grounding the judgment on a nullity and rendering the decision legally unsustainable. ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 12

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11) The Learned Magistrate’s decision was bad in law and in equity, having contravened the rules of natural justice, the overriding objective under Sections 1A and 1B of the Civil Procedure Act, and the right to a fair hearing guaranteed under Article 50 (1) of the Constitution of Kenya, 2010, and was therefore fundamentally erroneous. Appellant’s Submissions 24. The appeal was canvassed through written submissions dated 19/5/2025, filed by M/s Kaberia Arimba & Company Advocates. Counsel for the appellant identified the following as the three issues that fell for determination in the appeal: (i) Whether the trial court erred in issuing directions for the matter before it to proceed in the absence of the appellant and the other parties; (ii) Whether the appeal was meritorious; and (iii) What order should be issued with regard to costs. 25. Citing Article 50 (1) of the Constitution on the right to be heard, counsel faulted the trial court for proceeding with trial in the absence of both the appellant and their advocate. Counsel contended that the ex-parte hearing violated the appellant’s right to be heard. Counsel urged the court to find the appeal meritorious, allow it and award the appellant costs. Cross-Appellant’s Submissions 26. The 5th respondent was the cross-appellant. They filed written submissions dated 23/9/2025 through M/s Makena Mbogo & Co. Advocates. The submissions focused on: (i) ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 13

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the 1st respondent’s failure to sue the cross-appellant who was the registered proprietor of parcel number 1171; (ii) the 1st respondent’s failure to amend the pleadings after the trial court issued the joinder order; (iii) the trial court’s reliance on the fact that the evidence of the 1st respondent was unchallenged; (iv) proof of the case to the required standard; (v) admission of evidence by a witness who had not filed a witness statement. ; (vi) the locus standi of the 1st respondent; (vii) the trial court’s reliance on the consent that had been set aside on 10/5/2022; (ix) the trial court’s failure to make a pronouncement on the issue of limitation of action; and (x) the principle of natural justice. 27. On failure to sue the County Government of Meru and failure to amend the pleading to plead a claim against the County Government after the trial court issued a joinder order, counsel for the cross-appellant submitted that the orders of rectification which the 1st respondent sought could only issue against the registered proprietor of parcel number 1171. Citing the Court of Appeal pronouncement in Pashito Holdings Ltd & another v Ndungu & 2 others [1997] eKLR, counsel submitted that a party could only be bound to tender a defence in a scenario where proper pleadings had been made and a relief sought against it. 28. Counsel contended that by granting orders against a beneficial occupier instead of the registered proprietor, the trial court contravened provisions of Section 24, 25 and 26 of the Land Registration Act, 2012 which vested absolute ownership and indefeasibility of title in the registered proprietor. Counsel argued that the trial court’s order of ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 14

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rectification contravened the express provisions of Section 80 (2), thereby rendering the decree unlawful. 29. Counsel relied on the Court of Appeal pronouncement in Arthi Highway Developers Ltd v West End Butchery Ltd & Others (2015) eKLR which underscored the sanctity of title, adding that no rectification could issue in the absence of fraud or mistake attributable to the registered proprietor. 30. On failure to amend pleadings after joinder, counsel submitted that the trial court erred by treating the 5th respondent as a substantive defendant despite the plaintiff's failure to amend and serve the plaint following its joinder on 10/5/2022. Counsel argued that the omission denied the 5th respondent an opportunity to defend the suit, thereby violating its right to a fair hearing under Articles 25(c) and 50(1) of the Constitution. 31. Counsel contended that the Learned Trial Magistrate misconstrued the provisions of Sections 107, 108 and 109 of the Evidence Act by effectively shifting the burden of proof to the appellant. 32. On whether the 1st respondent proved their case to the required standard, counsel contended that the Learned Trial Magistrate erred in law and fact by entering judgment in favour of the 1st respondent notwithstanding that the alleged fraud was not proved to the required standard. Counsel relied on the Court of Appeal decision in Kuria Kiarie & 2 Others v Sammy Magera (2018) eKLR. 33. Counsel argued that the 1st respondent filed a list of documents dated 24/10/2017 but never formally produced ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 15

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them in evidence. It was their argument that the trial court failed to abide by the principles in Kenneth Nyaga Mwige v Austin Kiguta & 2 Others [2015] eKLR. 34. Counsel submitted that the evidence tendered was inadequate to establish fraud and the particulars of fraud as pleaded. 35. Counsel submitted that the trial court erred in granting a permanent injunction despite the 1st respondent having failed to prove ownership of parcel number Ithima/Ntunene/1171 by the appellant. Counsel argued that no claim of trespass or other unlawful conduct had been pleaded against the 5th respondent or the other respondents, adding that the issue of trespass was improperly introduced through PW2's oral testimony without a supporting witness statement. 36. On whether the trial court erred by admitting evidence of a witness who had not filed a witness statement, counsel contended that allowing testimony from an unlisted witness without a witness statement violated procedural safeguards of the Constitution and the Civil Procedure Rules and prejudiced the 5th respondent’s right to notice of the evidence to be used against them. Counsel Relied on the pronouncement and in Independent Electoral Boundaries Commission v Stephen Mutinda Mule & 3 Others. 37. Counsel contended that the suit property was public land belonging to the 5th respondent and, adding that under Articles 10, 62 and 174 of the Constitution, the land was ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 16

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held in trust for the people and any alienation of part of it to a private individual would undermine the constitutional duty to protect public land and the overriding public interest. 38. On whether the 1st respondent lacked the capacity (locus) to sue, counsel submitted that the 1st respondent failed to satisfy the requirements of Section 82 of the Law of Succession Act and therefore lacked the locus standi to institute the suit on behalf of his late father’s estate. Counsel added that the 1st respondent’s claim was statute-barred. 39. Counsel contended that the impugned judgment violated the principles of natural justice and equity, and was rendered in breach of the constitutional guarantee of a fair hearing under Article 50(1) of the Constitution. Counsel Relied on the pronouncement in Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR. 40. Counsel urged the court to allow the appeal and set aside the judgment and the orders of the trial court. 1st Respondent’s Submissions 41. The 1st respondent filed two sets of written submissions dated 15/7/2025 and 10/4/2026 in answer to the appeal and the cross-appeal. Counsel for the 1st respondent submitted that the key issues in both the appeal and the cross-appeal were: (i) Whether the appeal should be allowed; and (ii) What order should be made with regard to the appeal. 42. Counsel submitted that the matter was scheduled for hearing on 6/10/2022 when the appellant applied for an adjournment. ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 17

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The application was allowed on condition that the appellant would pay costs of Kshs. 2,000 to the 1st respondent. Counsel further submitted that the matter was thereafter fixed for hearing on 26/1/2023 when counsel holding brief for the appellant’s advocate was informed that the said costs were to be paid before the hearing could proceed after the call-over. Counsel contended that when the matter was subsequently called out for hearing, there was no appearance on behalf of the appellant. 43. Counsel submitted that the appellant failed to explain why the ordered costs of Kshs 2,000 were not paid despite the hearing date having been taken by consent and the appellant being aware of the court's directions issued on 6/10/2022. Counsel argued that no sufficient grounds were advanced to justify an adjournment and maintained that the trial court properly exercised its discretion after taking into account the reasons for the request, the parties' conduct, and any resulting prejudice. 44. Counsel argued that the application for adjournment was merely a delaying tactic and that taking a child to school did not constitute sufficient grounds. Counsel contended that the appellant was afforded a fair opportunity to present its case but failed to do so, and therefore urged the court to uphold the trial court's decision. 45. On the 5th respondent’s cross-appeal, counsel for the 1st respondent submitted that the 5th respondent was duly joined to the suit as a 5th defendant “through an amended plaint” and was afforded an opportunity to be heard in the trial court but failed to present a defence. Counsel argued ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 18

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that the trial court properly considered and evaluated the evidence on record before entering judgement in favour of the 1st respondent. Counsel urged the court to dismiss both the appeal and the cross-appeal and uphold the decision of the trial court. Submissions by the 2nd, 3rd and 4th Respondents. 46. The 2nd, 3rd and 4th respondents filed written submissions dated 23/7/2025 through the Office of the Honourable Attorney General. Counsel submitted that the hearing date of 26/1/ 2023 was taken by consent and the appellant was directed to pay KShs 2,000 as adjournment costs to the 1st respondent. Counsel argued that when the hearing commenced, there was no appearance for the appellant. 47. Counsel contended that it was clear that not only did the appellant fail to comply with the court’s orders to pay costs but they also failed to attend court on the material date despite fixing the date by consent. 48. Counsel submitted that the reasons advanced in support of the plea for an adjournment were insufficient, adding that the trial court properly exercised its discretion in proceeding with the hearing in the appellant's absence. Counsel urged the court to dismiss the appeal with costs. Analysis and Determination 49. I have read and considered the original record of the trial court; the record filed in this appeal; the grounds set out in the memorandum of appeal and in the memorandum of cross-appeal; and the parties’ respective submissions. I have also considered the relevant ELCL APPEAL NO. E027 OF 2023 – JUDGMENT legal frameworks and Page 19

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jurisprudence. The following are the key issues that fall for determination in the appeal and in the cross-appeal: (i) Whether the trial court violated the appellant’s and the crossappellant’s right to be heard by declining to grant an adjournment on the trial day; (ii) Whether the 1st respondent proved his case to the required standard; (iii) Whether the order of rectification of land registers and survey maps was available as against the appellant; (iv) Whether the order of rectification was available as against the County Government of Meru in the absence of amended pleadings setting out the 1st respondent’s case against the County Government; and (v) What order should be made with regard to costs. I will analyse and dispose the issues in the above order. Before I do that, I will outline the principle that guides this court when exercising appellate jurisdiction. 50. The task of a first appellate court was summarized by the Court of Appeal in the case of Susan Munyi v Keshar Shiani (2013) eKLR as follows: “As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, weigh, interrogate and evaluate, scrutinize all assess, of the evidence and arrive at our own independent conclusions.” 51. The principle was similarly outlined in Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows: ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 20

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“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess extracts the on and record and re-analyze then the determine whether the conclusions reached by the learned trial judge are to stand or not and give reason either way.” 52. The first issue is whether the subordinate court breached the rules of natural justice in conducting the trial leading to the impugned judgement without the appellant’s participation. There is no gainsaying that the Constitution of Kenya 2010, the Civil Procedure Act, the Civil Procedure Rules, and indeed, Kenya’s Civil Legal System in its entirety, place key emphasis on one’s right to be heard before any adverse order or decree is pronounced against him. Article 50 (1) of the Constitution safeguards this right in the following terms: “50(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or if appropriate, another independent and impartial tribunal or body.” 53. The court of appeal emphasized the centrality of the right to be heard in the case of Mbaki & Others v Macharia & Another [2005] 2 E.A 206 at page 210 in the following words: “The right to be heard is a valued right, it would ` offend all notions of justice if the right of a party ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 21

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were to be prejudiced or affected without the party being afforded an opportunity to be heard.” 54. The case giving rise to this appeal was scheduled for trial hearing on 6/10/2022. On that day, the 1st respondent attended court in person. The appellant’s counsel [Mr Omari] was absent despite having been notified about the hearing. The appellant’s counsel sent one Nyamokeri to hold his brief. He informed the court that Mr Omari was not able to attend the hearing because he was “tied up in Succession 596 of 2015, E31 of 2022, HCCA 5 of 2020 or 026 of 2022 and HCCA 16 of 2021”. Consequently, the court adjourned the hearing to 26/1/2023 and condemned the appellant to pay the 1st respondent’s costs, assessed at Kshs 2,000. The appellant did not bother to pay the above costs. 55. Come 26/1/2023, again the 1st respondent attended court in person. Once more, the appellant’s counsel [Mr Omari] did not attend court. When the matter was called out during the preceding call-over, one Gitonga held Mr Omari’s brief but said nothing beyond introducing himself as Mr Omari’s representative. He did not make any application for adjournment at that point. Consequently, the court indicated that hearing would proceed after the call-over. case was called out after When the the call-over, there was no attendance on part of the appellant. Neither the appellant’s advocate nor the appellant’s witness were present. 56. At that point, one Kiruai who attended the session on behalf of Miss Materi for the 5th respondent [the cross-appellant that was described as “interested party”] informed the court that Ms Materi was not ready for the hearing. She did not ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 22

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give any reason why Ms Materi was not ready for the hearing. Kiruai stated thus:Ms Materi is not ready. Mr Omari had said he was to take his children to school and could not attend”. 57. It is clear from the above verbatim excerpt that both the appellant and the cross-appellant did not bother to tender proper explanation that would inform a decision to adjourn the hearing. Kiruai did not tender any explanation for Ms Materi’s inability to attend and proceed with the hearing. Kiruai did not hold Mr Omari’s brief. What he/she said about Omari was not a statement from a representative of the appellant. Secondly, the statement was strange and unconvincing because earlier in the day one Gitonga had held Mr Omari’s brief and never informed the court that Mr Omari had taken his children to school. 58. The decision of a trial court to grant an adjournment is a discretionary one. The discretion is, however, exercised on the basis of a clear criterial. In Wachira v Republic (Criminal Appeal No 46 of 2018) (2023) KECA 16(KLR) (26 January 2023) (Judgment) the Court of Appeal outlined the criterial as follows: “In Savannah Development Company Ltd V Merchantile Company Ltd, CA NO 120 of 1992, this Court stated that there may be reasons for seeking adjournment of a case set down for hearing on a particular day and that where there are valid reasons to justify granting of an adjournment, the Court always has unfettered ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 23

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discretion to grant the adjournment. The Court further stated that elements to be taken into consideration in an application for adjournment include the adequacy of the reasons given for the application for adjournment; how far, if at all, the other party is likely to be prejudiced by the adjournment; and whether the other party can be suitably compensated by award of costs. 59. Given the above circumstances, it is clear that both the appellant and the cross-appellant did not tender to the trial court proper reasons that would have justified an adjournment of the hearing by the trial court. Consequently, the allegation that the appellant’s and the cross-appellant’s right to be heard was violated is without basis. It is therefore the finding of this court that the two appellants have failed to demonstrate that they were denied the right to be heard on 26/1/2023 when the hearing of the suit in the trial court proceeded. 60. Did the 1st respondent prove his case to the required standard? First, the 1st respondent alleged in his written submissions before this court that subsequent to the joinder of the cross-appellant, he amended the plaint to plead his claim against the cross-appellant. The joinder order was made vide the trial court’s ruling dated 10/5/2022. The suit in the trial court was filed on 27/11/2017 vide a plaint dated 24/10/2017. An amended plaint dated 30/5/2018 was subsequently filed on form of a further respondent. 30/5/2018. No other pleadings in amended plaint was filed by the 1st Trial proceeded on the basis of the amended plaint dated 30/5/2018. It is therefore clear that the 1st ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 24

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respondent opted to ignore the joinder order issued by the trial court and proceeded to procure a trial and a judgment on the basis of the amended plaint dated 30/5/2018 in which he did not plead any allegation or any claim against the cross-appellant [the County Government of Meru]. 61. It therefore follows that the 1st respondent having elected not to amend the plaint to plead fraud against the crossappellant, he had no tenable claim against the crossappellant. Put differently, in the absence of specific pleadings alleging and particularizing the alleged fraud on part of the cross-appellant, the 1st respondent had no tenable claim in the suit to prove against the cross-appellant. 62. Secondly, by dint of Sections 107 – 109 of the Evidence Act, and notwithstanding the fact that the appellant and the cross-appellant did not tender evidence during trial, the 1st respondent was obligated to tender evidence to prove the pleaded claim. The three Sections provide as follows:- “107. Burden of proof. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. Incidence of burden. ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 25

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The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. Proof of particular fact. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 63. The prevailing jurisprudence on the threshold of pleadings and proof of fraud is well settled. In Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] KECA 223 (KLR), the Court of Appeal outlined the law as follows: “It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts”. 64. In Ndolo v Ndolo [2008] the Court of Appeal outlined the threshold for proving fraud as follows:“When fraud is alleged by the plaintiffs, the onus is on the plaintiffs to discharge the burden of ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 26

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proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required”. 65. Did the 1st respondent satisfy the above statutory and jurisprudential respondent threshold went to for the proving trial court fraud? to The 1st challenge two registrations that were culminations of the statutory land adjudication exercise. The two registrations were effected in 1976 during the life time of the late Ikirima Mutia. They related to parcel numbers 11 and 1171. The 1st respondent alleged that a 0.66 acre portion of parcel number 11 was fraudulently hived off and registered as part of parcel number 1171. 66. Given the above contextual background, the 1st respondent was obligated to prove the following: (i) that in the final adjudication register, the late Mutia was the demarcated and adjudicated owner of parcel number 11 comprising of, inter alia, the contested 0.66 acre portion; and (ii) after the closure of the adjudication register, without any objection or appeal, the sued defendants fraudulently colluded to falsify documents and hive off the contested 0.66 acre portion out of parcel number 11. Did the 1st respondent tender evidence to prove the above? I do not think he tendered the necessary evidence. 67. The evidence which the 1st respondent placed before the trial court show that during land adjudication, the land which the late Mutia claimed to own was the subject matter of ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 27

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Objection No. 134 [See paragraph 2 of PW1’s witness statement]. Through the Objection, the late Mutia lost 0.66 acres. The late Mutia did not pursue the appeal mechanism provided under the law. Consequently, the adjudication exercise was concluded and land parcels in the Adjudication Section were registered in 1976. The evidence tendered by the 1st respondent showed that on 10/3/1976, the late Mutia was registered as proprietor of parcel number 11 measuring 0.32 hectares [approximately 0.79 acres]. The late Mutia did not object to the above acreage at the point of registration. On 10/9/1993, the late Mutia processed and was issued with a title deed relating to parcel number 11, measuring 0.32 hectares [approximately 0.79 acres]. He did not raise any objection relating to the acreage at the point of processing his title in 1993. Up to the time of his demise, the late Mutia did not challenge the acreage and did not make any allegation of fraud against the registered proprietor of parcel number 1171. 68. That is not all. In 2010, the family of the late Mutia initiated succession proceedings relating to his estate vide Maua CMC Succession Cause No 42 of 2010. On 9/5/ 2014, the succession court issued a certificate of confirmation of grant, distributing parcel number 11 measuring 0.32 hectares amongst the four (4) beneficiaries of the estate in equal shares. The 1st respondent was the administrator of the estate. He fully implemented the succession order by subdividing parcel number 11, culminating in a closure of the parcel register on 10/9/2014. More than three (3) years after closure of the parcel register, the 1st respondent initiated Maua CMC Civil Case No 221 of 2017 alleging fraud in the ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 28

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1976 registration of parcel number 11 and parcel number 1171 and inviting the trial court to rectify the closed parcel register and the obsolete survey maps. 69. It is clear from the above analysis that loss of the 0.66 acres by the late Mutia was through an objection within the framework of the land adjudication laws. The late Mutia accepted the decision made in the objection and lived with it. It is also clear that there was no element of fraud proved in relation to the registration of parcels number 11 and 1171. Thirdly, even if the 1st respondent had demonstrated an element of fraud, the claim was clearly statute-barred under the Limitation of Actions Act because the impugned registration happened in 1976 and the late Mutia processed his title comprising of 0.323 hectares in 1993. The 2017 claim that was anchored on fraud was stale and the trial court had no jurisdiction to entertain it. 70. It does also emerge from the impugned Judgment that the finding of the trial court was informed by an alleged consent through which the appellant allegedly returned land to the 1st respondent. I have looked at the record. consent existed in the court record. No such In any event, parcel number 1171 belonged to the County Government of Meru. The appellant [Laare Coffee Factory] had no proprietary interest in it to give it the locus to “return” the land to the 1st respondent. 71. For the above reasons, the court makes a finding that the 1st respondent did not prove fraud in the 1976 registration of parcel number 11 measuring 0.32 hectares and parcel ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 29

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number 1171 measuring 1.9 hectares. The two registrations were culminations of the statutory land adjudication exercise. 72. Was the order for rectification of the land registers and the survey maps relating to parcels number 11 and 1171 available as against the appellant? Parcel number 11 was registered in the name of the late Mutia on 10/3/1976. On 21/7/2014 parcel number 11 was registered in the name of John Kaberia M’Ikirima. The parcel ceased to exist on 10/9/2014 following a subdivision into parcels number 3932 – 3935. 73. Parcel number 1171 was registered in the name of Meru County Council on 10/3/1976. Evidence tendered during trial showed that the parcel was still registered in the name of the now defunct Meru County Council. The defunct local authority caused an entry to be made in the Easements Section, indicating that it was reserving the land for a coffee factory at Laare. Laare Coffee Factory was not and is not the registered proprietor of the said land. It was merely a contemplated user of the land. 74. By dint of Section 33 of the Sixth Schedule to the Constitution, the County Government of Meru is the current successor institution to the defunct local authority. Secondly, all land owned by a County Government is public land. 75. It does emerge from the above framework that, to the extent that the 1st respondent sought a rectification order relating to parcel number 1171, the order would only issue against the registered proprietor of the land and the relevant statutory officers of the Department of Lands. It would not ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 30

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issue against Laare Coffee Factory. That is the finding of the court on the third issue. 76. Was the order of rectification of the land register and the survey maps available as against the County Government of Meru? The court has already observed that the 1st respondent made a fatal error by failing to amend his pleadings to plead fraud and seek reliefs against the County Government. In the absence of specific pleadings and proof, the order of rectification was not available as against the County Government of Meru. 77. On costs, the general principle is that costs follow the event. Taking into account the fact that the errors leading to this appeal were largely committed by the trial court, the view which the court takes is that parties should bear their respective costs of the appeal and the suit in the lower court. Disposal Orders 78. Having re-evaluated the pleadings and the evidence that were placed before the trial court, this court comes to the conclusion that the 1st respondent [John Kaberia M’Ikirima, now substituted by Jackson Kirimi Kaberia] did not prove his claim to the required standard. Consequently, both the appeal by Laare Coffee Factory and the cross-appeal by the County Government of Meru succeed in the following terms:(a) The Judgment of the trial court in Maua CMC Civil Case No 221 of 2017 is set aside wholly and is replaced with an order dismissing the plaintiff’s suit for lack of merit, with an order ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 31

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that parties shall bear their respective costs of the suit. (b) Parties shall, similarly, bear their respective costs of this appeal. DATED, SIGNED AND DELIVERED AT MERU THIS 16TH DAY OF SEPTEMBER, 2026. B M EBOSO [MR] ELC JUDGE ELCL APPEAL NO. E027 OF 2023 – JUDGMENT Page 32

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