Moses Olando Andati v John Munyendo Muheba

said application, the defendant had sought review of the orders of 21st May 2025, reopening of the defence case and leave to file witness statements and documents. In the ruling the trial court held that the defendant opportunity to had been actively accorded sufficient participate in the proceedings but had chosen to sleep on his rights. Background 2. By a plaint dated 12th July 2022, the plaintiff, who is the respondent herein and the registered owner of parcel Nos. E/Wanga/3926, E/Wanga/1157 and E/Wanga/3408 (hereinafter referred to as “the suit properties”) stated that he had purchased and paid for the properties in full from the late Burono Wandati. He averred that sometime in 2013, the defendants wrongfully entered upon and unlawfully took possession of the suit properties, where they have remained in occupation to date. He further alleged that the defendants had cultivated, damaged, wasted, destroyed and degraded the properties, thereby depriving him of their use and enjoyment. Consequently, the plaintiff sought orders of 2

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permanent injunction and eviction of the defendants and their agents, general damages for trespass, costs and interest. 3. The defendants filed amended defence and counterclaim dated 3rd April 2023. He denied the plaintiff’s claim and, in particular, denied that the defendants moved onto the suit properties in 2013 alleging instead that he has been on the suit property since time immemorial. He contended that the land was their birthright. The 1st defendant further stated that the plaintiff had previously sued him and others in Mumias PMCC No. 64 of 2018 for malicious prosecution arising from Criminal Case No. 883 of 2011, which suit was dismissed with costs. 4. In his counterclaim, the 1st defendant averred that he is a son of the late Burono Wandati, who was the registered owner of L.R. No. E/Wanga/Libuni/1157, and that at no time during his lifetime did his father indicate to him or to any other person that he had sold any part of the land. He stated that he and his siblings were born on the land and had lived thereon to date. He further 3

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contended that they had been in quiet possession, use and enjoyment of the property for a period exceeding 40 years. He therefore prayed that the plaintiff’s title be declared extinguished by adverse possession and that the plaintiff be directed to transfer the suit properties to the defendants jointly. 5. In his reply to the defence and counterclaim dated 22 nd August 2023, the plaintiff reiterated that the defendants were not privy to the sale and transfer of the properties, as they were not the owners thereof. He further stated that the 1st defendant was an infant at the time of the sale and that his opinion or consent was therefore not required. The plaintiff maintained that the 1st defendant had never lived on the suit properties and only moved onto the land in 2011 after his father had sold the land on which they had previously lived, measuring approximately five acres. He stated that it was at that point that disputes over the suit properties arose. 6. The matter proceeded to hearing of the plaintiff’s case on 9th April 2024. The plaintiff called two witnesses and 4

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thereafter closed his case on 21st May 2024. The court then ordered that, “the defence being absent and having chosen not to comply with the order of the court, the defence case is also closed,” and directed the parties to file their submissions. 7. Subsequently, the defendant filed a Notice of Motion dated 25th July 2024 seeking orders that the court reviews and/or sets aside its orders made on 21 st May 2024, reopens the defence case for hearing, and grants him leave to file his documents and witness statements within seven days, with the same being deemed as duly filed and served. He also sought orders that the evidence of PW2 be expunged from the record for being a stranger in the case. 8. The application was supported by the affidavit sworn by the 1st defendant. The applicant stated that he was represented by his current advocates, the firm of R. Omar & Company Advocates, but failed to pay legal fees as well as disbursements and had no idea his statement was not on record. That he was shocked when he was denied opportunity to give his testimony. 5

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That he stands to suffer irreparable harm if orders sought are not granted and that the trial court exercised double standards by allowing PW2 to testify without having a witness statement while denying the defendant opportunity to give oral evidence when he was a party to the case. That the claim being for eviction, he may be rendered homeless. 9. The application was opposed by the plaintiff through a replying affidavit dated 12th September 2024. The plaintiff deponed that the defendants had been present throughout the hearing process and had been accorded an opportunity to participate in the proceedings but chose not to do so. He maintained that it would be unjust to have the process start afresh just because he had now decided to pay legal fees. He further stated that the matter had been adjourned four times at the instance of the defendants on what he termed flimsy excuses, and that they had failed to pay adjournment fees and costs awarded to the plaintiff on two separate occasions, namely, 16th November 2023 and 29th February 2024. He therefore contended that the 6

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application had been made in bad faith and ought to be dismissed with costs. 10. Upon considering the application, response and parties’ submissions, the trial court delivered its ruling on 24th April 2025. The court held that the defendants had been given sufficient opportunities to participate in the proceedings, including opportunities for which they had been ordered to pay adjournment fees and costs to the plaintiff, but had failed to comply with the orders, which had not been vacated. For those reasons, the court found the application without merit and dismissed it with costs to the plaintiff. 11.Aggrieved with the decision of the trial court, the appellant herein (the defendant before the lower court) appealed against the same vide his Memorandum of appeal dated 12th May 2025 citing the following four grounds of appeal; 1. The learned trial magistrate erred in fact and law by failing to fully analyze and evaluate the evidence presented required by the law. 7 by the appellant

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2. The learned trial magistrate erred in law by dismissing the appellant’s application. 3. The learned trial magistrate erred in fact and law by applying double standards against the parties. 4. The learned trial magistrate erred in fact and law by denying the appellant a right to be heard against possible eviction orders. 12. Consequently, the appellant sought the following orders; a) That the appeal be allowed. b) That the honourable court be pleased to set aside the orders of the court given on 24/4/2024 in Mumias MCELC no. E039 of 2022 and order that; i) The defence case be reopened and appellant be granted leave to file his statements and documents. ii) The evidence of PW2 be struck off the record for being a stranger to the proceedings. iii) That the respondent be ordered to pay costs for this appeal. 8

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13. The appeal was canvassed by way of written submissions. The appellant filed his submissions dated 18th September 2025, while the respondent’s submissions are dated 23rd September 2025. Appellant’s submissions 14. The appellant submitted that he was initially represented by counsel, but his advocate subsequently ceased acting. He contended that no pre-trial conference had been undertaken and that, although he was acting in person and attending court diligently, he was not adequately guided on the procedure. He further submitted that during the hearing of the plaintiff’s case, the court did not inform him of his right to cross-examine the plaintiff’s witnesses or accord him an opportunity to exercise that right. He therefore argued that he was not afforded a fair opportunity to fully participate in the trial. 15. He further submitted that, despite requesting time to secure legal representation, the court was not keen on actively involving him in the proceedings. He argued 9

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that the court had a duty not only to ensure a fair hearing but also to facilitate the attainment of substantive justice. He contended that the respondent would not suffer prejudice if the defence case were reopened and that any prejudice could, in any event, be compensated by an award of thrown-away costs. He therefore urged the court to allow the appeal and grant him an opportunity to ventilate his case. Respondent’s submissions 16. The respondent submitted that the appellant’s submissions disclosed no arguable legal or factual grounds warranting the intervention of this court and did not challenge the legal basis of the impugned ruling. The respondent relied on the case of David Morton Silverstein v Atsango Chesoni [2002] eKLR and argued that the appellant was merely complaining about procedural consequences arising from his own inaction and non-compliance, which could not form the basis of an arguable appeal. The respondent further submitted that the appellant had been granted several 10

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adjournments and sufficient time and directions but had consistently failed to comply with the court’s orders. 17. He relied on the principle that equity does not aid the indolent and cited Utalii Transport Company Ltd & Others v NIC Bank Ltd [2014] eKLR. He submitted that the appellant could not now complain of being denied an opportunity to be heard when he had failed to make meaningful efforts to participate in the trial despite being accorded several opportunities. 18. The respondent further submitted that the appeal was not founded on any legal misdirection or factual error on the part of the trial court, but rather on a general grievance concerning the court’s handling of the appellant’s self-representation. He contended that the record demonstrated that the appellant had failed to comply with the court’s rules and timelines despite being granted several opportunities to do so. The respondent argued that the appeal lacked a proper legal basis and was merely intended to delay the lawful determination of the eviction proceedings. He therefore submitted that the appeal was not grounded on any 11

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identifiable error of law, fact or procedure, was legally unsustainable and factually misleading, and ought to be dismissed with costs. He further urged the court to direct that the proceedings in the lower court proceed to their final determination. Analysis and determination 19. The court has carefully considered the appeal, the trial court record and the rival submissions. The only issue that arises for determination is whether the trial court properly exercised its discretion in declining to grant the orders sought in the appellant’s application dated 25th July 2024. 20.It is trite that an appellate court will not interfere with exercise of discretion by the trial court merely because it could have arrived at a different conclusion, had it heard the matter. 21. In the case of United India Insurance Co. Ltd v East African Underwriter (Kenya) Ltd [1985] KECA 39 (KLR), the Court was categorical that an appellate court will not interfere with a discretionary decision of 12

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the lower court merely on the basis that if it had sat at first instance, it would have made a different decision. The court further emphasized that the appellate court can only interfere with the exercise of discretion where, the lower court misapprehended misdirected facts; took itself into in law; consideration irrelevant matters; failed to take into consideration relevant matters or the decision is plainly wrong. 22. Also in the case of Mbogo & Another vs. Shah [1968] EA. 93 at page 96, the Court of Appeal stated that: “…a Court of Appeal 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 in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been injustice….’’ 23. Similarly, the Supreme Court of Kenya in the case of Apungu Arthur Kibira v Independent Electoral and 13

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Commission Boundaries & 3 Others [2019] eKLR stated: “We reiterate that in an appeal from a decision based on an exercise of discretionary power, an Appellant has to show that the decision was based on a whim, was prejudicial or was capricious. This was as determined in the New Zealand Supreme Court case of Kacem v Bashir [2010] NZSC 112; [2011]2 NLRI (Kacem) where it was held para 32]:“In this context a general appeal is to be distinguished from an appeal against the decision made in exercise of discretion. In that kind of case, the criteria for a successful appeal are stricter: (i) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong. 24. In the instant case, the appellant challenges the court’s exercise of discretion in declining to set aside orders closing its defence case without taking evidence from the defence. In this matter, the trial court 14

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considered the proceedings, the appellant’s conduct and the fact that the matter was mentioned four times so as to give the appellant time to file his witness statements and documents, but no compliance was done. The court further noted that even when the matter came up for hearing on three different dates, the defendant did not file his evidence. The court concluded that the appellant had been granted sufficient opportunity to file his witness statement and documents in vain. 25. From the appeal, the appellant did not challenge any part of the reasons cited by the trial court as to why it arrived at the conclusions made. The appellant did not deny having been given four mentions to file witness statements and documents. He also does not contest the fact that he was present when the matter came up for hearing on three different dates but he was still unwilling to file his evidence. In short, the appellant has not challenged the factors considered by the trial court in arriving at its findings, neither has he argued that they were irrelevant. 15

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26. The proceedings refute the appellant’s position that he was not accorded the right to be heard. Four mentions requiring compliance and three hearings were more than sufficient opportunities for the appellant to comply. The opportunity to comply was given. The appellant was not interested in using the availed opportunity and has no one to blame but himself. In the premises, I find and hold that the learned trial magistrate considered all relevant factors in arriving the impugned decision, and therefore, this court finds no basis or justification to interfere with the exercise of discretion by the trial court. 27. Ultimately, I find no merit in this appeal, which I hereby dismiss with costs to the respondent. 28. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN MICROSOFT COURT/VIRTUALLY TEAMS VIDEO THROUGH CONFERENCING PLATFORM THIS 23RD DAY OF SEPEMBER 2026 16

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A. NYUKURI JUDGE In the presence of; Mr. Owiti for the appellant Ms Omar for the respondent Court Assistant- Delphine 17

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