https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5253

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELCLA/E033/2025 ABDIWAHAB ABDIKARIM VS ABDULKADIR ABUBAKAR MOHAMED AND KHADIJA KIPROP IDI JUDGMENT 1. This is an Appeal arising from the judgment of Hon. Maureen Nabibya Senior Principal Magistrate, Mombasa delivered on 17th March,2022. 2. The Appellant filed a Memorandum of Appeal dated 13th May 2025 appealing against the said judgment on the following grounds; 3. THAT the Learned Honourable Magistrate proceeded without jurisdiction over a land suit that was filed as a civil claim. 4. THAT the Learned Honourable Magistrate erred in law and in fact by failing to consider the Appellant’s defence on record. 5. THAT the Learned Honourable Magistrate erred in law and in fact by delivering judgment without hearing the appellant herein. 6. THAT the Learned Magistrate erred in law by failing to protect the appellant’s constitutional right to a fair trial as enshrined under Article 50. 7. The Appellant seeks orders allowing the appeal, quashing the whole judgment issued by the Senior Principal Magistrate Court. In the alternative, judgment against the Appellant be quashed and the file returned to the trial court for hearing of the Appellant upon proper service. BRIEF FACTS 1. The 1st Respondent filed a suit against the Appellant and 2nd Respondent vide a plaint dated 18th September 2018 seeking orders for Vacant Possession, a declaration that the Appellant has trespassed on the 1st Respondents properties known as MOMBASA/M.S/BLOCK V/550 and MOMBASA/M.S/BLOCK V /551, Orders for demolition of any structures in the suit property and costs of the suit. 1. The 1st Respondents case is that he is the registered owner of all that plot known as MOMBASA/M.S/BLOCK V/550 and MOMBASA/M.S/BLOCK V /551 situate at Likoni. The Appellant and 2nd Respondent trespassed and erected structures on the suit property therefore depriving him the use and enjoyment of his property. 2. The Appellant entered appearance and filed a defense and counter claim. They denied the ownership claim by the 1st Respondent and averred that any registration thereof is illegal. The Appellant and 2nd Respondent denied the allegation of trespass and averred that they occupy a public land. They raised a counterclaim wherein they sought for orders that the acquisition of the suit property by the 1st Respondent is illegal, further they sought nullification of the 1st Respondents title in respect of the suit parcel. Lastly, they sought for orders allocating the suit parcels in the name of the Appellant and the 2nd Respondent. 3. When the matter came up for hearing on 15th February 2022, the Appellant was not present. The 1st Respondent adopted his statement as evidence in chief. He also produced documents. He testified that the Appellant and 2nd Respondent had not filed anything to confirm ownership. That the Appellant and the 2nd Respondent have not been on the property since 2011, they began construction in 2018. He added that the matter was reported to the police station and the construction stopped but they continued to construct from 12th July 2019. Additionally, the land was not public as alleged. He prayed for his claim to be allowed. 4. The Trial Magistrate found the suit property belonged to the 1st Respondent was the owner of the suit property and allowed the claim save for the prayer for demolition by the purchaser as the 1st Respondent had not demonstrated to court who the vendor or the purchaser was. SUBMISSIONS APPELLANTS SUBMISSIONS 1. The Appellant filed submissions dated 27th March 2026 wherein he challenged the Jurisdiction of the trial court. According to the Appellant, the suit was allocated MCC/1923/2018, however the relief sought were in the form of a land dispute. He asserts that a court sitting as a civil court cannot have jurisdiction over land cases or employment matters, according to the provisions of Section 9 of the Magistrates Court Act read together with Section 26 of 26 of the Environment and Land Court Act. The Appellant contend that since the matter was filed at the civil registry, the court proceeded without jurisdiction in a matter that was filed in the wrong jurisdiction. In so submitting, the Appellant relied on the case of Sunkuli v Ombati & 2 others [2025] KEELC 8365(KLR) and Samuel Makau Macharia & Another v Kenya Commercial Bank Limited & 2 others [2012]eKLR. 2. Additionally, the Appellant submits that there exists a counterclaim that was filed in the trial court that remains undetermined. He argues that the principle of Natural Justice required that a party is accorded fair hearing. He relies on the case of Republic v Director of Public Prosecutions & 2 others; Evanson Muriuki (Interested Party); Ex Parte James M. Kahumbura [2019] eKLR. 3. The Appellant submits that the proceedings at the trial court violated his constitutional right to fair hearing as guaranteed by Article 25(c) and 50(1) of the Constitution. He argues that the right to fair hearing is absolute and cannot be limited. He relies on the case of Murtaza Hassan & Another v Ahmed Salad Kulmiye [2020] eKLR, where the court. 4. The Appellant maintains that the was condemned unheard despite demonstrating that he has an interest in the suit property and having filed a counterclaim which was never determined. He further relied on the case of Jeremiah Mghanga Msafari v Millicent Zighe Mwachala & 3 Others [2021] eKLR, in which the court reaffirmed that no person should be deprived of property without first being afforded an opportunity to be heard. 5. He urges the court to find that the trial court erred in conferring jurisdiction upon itself and that the Appellant was not accorded a right to fair hearing. 1st RESPONDENTS SUBMISSIONS 1. The 1st Respondent filed submissions dated 2nd April 2026. He opposes the appeal and submits that the jurisdiction was properly exercised by the trial court. The Appellant argues that jurisdiction is conferred by the Constitution and statute, and relies on the case of Owners of the Motor Vessel Lillian S v Caltex Oil (Kenya) Ltd [1989] KLR 1 and Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR. 2. The Appellant further submits that the Magistrates' Court derives jurisdiction to hear and determine environment and land disputes under Sections 26(3) and (4) of the Environment and Land Court Act and Section 9 of the Magistrates' Courts Act. According to the 1st Respondent, the Appellant’s argument regarding filing of the suit in the civil registry instead of the environment and land division, is more of an administrative issue and not a jurisdictional one. He relies on the case of Elasto Kinaro & Another v County Government of Nyamira & 2 Others [2017] KEHC 8554 (KLR) and submits that court divisions are administrative in nature and do not affect jurisdiction. 3. As regards the issue of fair hearing under Article 50 of the Constitution, the 1st Respondent submits that the Appellant failed to attend the hearing, consequently no evidence was adduced in support of the defense, the 1st Respondent’s evidence therefore stood uncontroverted and the defense remained mere averments. 4. The 1st Respondent submits that instead of seeking to arrest the judgment or setting the judgment aside the Appellant sought leave to appeal out of time only after execution proceedings had commenced. The Appellant submits that whereas mistakes of counsel should not ordinarily be visited upon a litigant, the principle is not absolute, the litigant has a duty to diligently follow up on his case. 5. The 1st Respondent therefore urges the Court to find that the appeal lacks merit and to dismiss it with costs. ANALYSIS AND DETERMINATION 1. Upon consideration of the materials presented in respect to the Appeal herein including the Memorandum of Appeal and Record of Appeal, the following issues for determination;1. Whether the Appeal is merited2.Who should bear the cost of the appeal. 2. Being a first appeal, the court relies on a number of principles as set out in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123:…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 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 ...” 3. In the Plaint which resulted to the judgment that has been disputed, the Respondent/Plaintiff sought for the following orders: Vacant Possession, a declaration that the Appellant has trespassed on the 1st Respondents properties known as MOMBASA/M.S/BLOCK V/550 and MOMBASA/M.S/BLOCK V /551, Orders for demolition of any structures in the suit property and costs of the suit. However, the same was filed in the civil registry. 4. The Appellant/1st Defendant and the 2nd Respondent entered appearance and filed a defense and a counterclaim. 5. Jurisdiction of the court flows from the constitution or statute and a court cannot confer jurisdiction upon itself. This was affirmed by the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR that, a court's jurisdiction flows from the Constitution or legislation and cannot be conferred by the parties. Likewise, in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd, the Court of Appeal held that jurisdiction is everything and, without it, a court must down its tools. 6. In the Magistrate court Act (Cap 10) it is provided thus; A magistrate's court shall— (a)in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (Cap. 8D) and subject to the pecuniary limits under section 7(1), hear and determine claims relating to— (i)environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (ii)compulsory acquisition of land; 1. land administration and management; 2. public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and 3. environment and land generally; 4. The Appellant’s contention is that the suit was registered as a civil suit and therefore the court lacked jurisdiction to hear the matter and make a determination. This court finds that this is n administrative classification which does not determine the courts jurisdiction. Jurisdiction is conferred by law and that depends on the nature of the dispute presented in court and its legal mandate. The magistrate’s court has been conferred with jurisdiction to handle Environment and Land disputes. The Appellant has failed to demonstrate how the trial court lacked the mandate to determine the dispute. The mere fact that a civil case number was assigned to the matter did not divest the trial court of jurisdiction. Consequently, ground (1) of the appeal fails. 1. At the hearing the Appellant’s advocate was not present and therefore the 1st Respondents claim remained uncontroverted. It is well established in the jurisprudence of the superior courts that where evidence is neither rebutted nor challenged through cross- examination or contrary evidence, the court is entitled to accept it. The court is guided by the case of Motex Knitwear Limited v Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No.834 of 2002, Lesiit, J. citing the case of Autar Singh Bahra and another v Raju Govindji, HCCC No.548 of 1998 appreciated that:-‘Although the Defendant has denied liability in an amended Defense and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the evidence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his defense and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.’" 2. The right to a fair hearing under Articles 25(c) and 50(1) of the Constitution, parties to a dispute are guaranteed the right to fair hearing. In essence, every litigant is granted a reasonable opportunity to present his case. However, where a party is afforded an opportunity to be heard and fails to attend court, the court cannot be compelled to halt proceedings, save for where sufficient cause is presented. The record before court does not demonstrate that the appellant was denied an opportunity to participate in the proceedings. The Appellant filed a defense and counterclaim but failed to attend the hearing to present evidence or challenge the 1st respondent’s case. He cannot now be heard to complain that the trial court violated his right to a fair hearing. The learned magistrate was entitled to proceed with the hearing and subsequently render judgment on the basis of the evidence on record. 3. The court therefore finds therefore find that the trial magistrate was right in holding that the Respondent had proved her case on a balance of probabilities. Consequently, grounds (2), (3) and (4) of the Appellant’s grounds of appeal fail in totality. 4. In the upshot, the appeal lacks merit and the same is hereby dismissed with costs to the 1st Respondent. It is so ordered. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-08-07 12:45:38