https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3599

Mukawale v Executive, County Government of Vihiga & another (Environment and Land Appeal E027 of 2025) [2026] KEELC 3599 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELC 3599 (KLR) Republic of Kenya In the Environment and Land Court at Vihiga Environment and Land Appeal E027 of 2025 E Asati, J June 11, 2026 Between Edward Muhavi Mukawale Appellant and Executive, County Government Of Vihiga 1st Respondent Gango Enterprises Company Limited 2nd Respondent (Being an appeal against the judgment and decree in Hamisi MCLE Case No. 33 of 2018 delivered on 14th February 2019 by Hon. M. I. Nabibya, SRM) Judgment Introduction 1.The Record of Appeal filed herein dated 23rd February 2024 shows that Edward Muhari Mukawale, The Appellant Herein, Was The Plaintiff In Hamisi Mc E & L Case No. 33 OF 2018 (herein called the suit). The record shows that the Appellant had, vide the plaint dated 11th January 2016, filed the suit against the Executive County Government of Vihiga, in the Environment and Land Court at Kakamega as Kakamega ELC Case No. 3 of 2016, which was later transferred to the Magistrate’s Court at Hamisi for hearing and disposal. 2.The record shows that the subject matter of the suit was parcels of land known as Kakamega/Serem/291, 343, and 347 (the suit lands), which the appellant claimed belonged to him. The appellant further claimed the Respondent had encroached upon the suit lands and caused him loss and damage. The appellant therefore sought compensation for the loss suffered. 3.The record shows that the 1st Respondent denied the appellant’s claim vide the Statement of Defence dated 13th May 2016.The 2nd Respondent, who was later added to the suit, also filed a Statement of Defence dated 26/7/2018. 4.The record shows that the suit was heard before the trial court, which, vide the judgment delivered on 14/2/2019, found that the Appellant failed to prove his claim. The court dismissed the suit with costs to the Defendants. The appeal 5.Aggrieved by the judgment, the Appellant preferred the present appeal vide the Memorandum of Appeal dated 8th March 2019 on the grounds that:1.The Learned Lower Court erred in law and fact by making a finding that the Appellant had failed to prosecute an application to enjoin the 2nd Respondent as a Defendant in the lower court suit.2.The Learned Lower Court erred in law and fact by holding that the exhibits adduced by the Appellant were inadmissible when no party had objected to their production as evidence.3.The Learned Lower Court erred in law and fact by awarding the Respondents' costs when none of them appeared in court to prosecute their respective positions.4.The Learned Lower Court erred in law and fact by failing to consider the evidence on record so as to dispose of the Appellant’s claim on the merits. 6.The Appellant sought that the lower court judgment be set aside and quashed, the appeal be allowed in toto by upholding the claim of the Appellant in the lower court. Submissions 7.The appeal was heard by way of written submissions. On behalf of the Appellant, written submissions dated 20th November 2024 were filed by K. N. Wesutsa & Co. Advocates, while written submissions dated 9th March 2026 were filed on behalf of the Respondents. Analysis and determination 8.This being a first appeal, this court is obligated to re-analyse the evidence placed before the trial court and draw its own conclusions. In Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123, it was held that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. It statedAn appeal to this court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.” 9.The first ground of appeal faults the trial court for making a finding that the Appellant had failed to prosecute an application to join the 2nd Respondent as a Defendant in the suit. 10.The record of appeal shows that the Plaintiff/Appellant had, in the pendency of the suit, filed an application dated 20th May 2016 vide which he sought joinder of Gango Enterprise Company Limited as a defendant in the proceedings and an order that costs of the application be provided for. 11.A reading of the judgment appealed against reveals that the trial court did find about the application and observed that: -Apart from the defence dated 13/5/2016 and an attempt to bring in the 2nd Defendant through an application dated 20/5/2016 which was never prosecuted as at the time of closure of the prosecution’s case, the same therefore being deemed abandoned shows that the orders being sought therein for “enjoining” Gango Enterprises Co. Ltd as 2nd Respondent remained an intention of the application. I can therefore only consider the original defence though witnesses were not presented.” 12.It was submitted on behalf of the appellant on this ground that at the beginning there were only 2 parties, that later the Appellant vide the application dated 20th May 2016 sought orders to join the 2nd Respondent herein as the 2nd Defendant in the suit. That the 2nd Respondent proceeded to file its statement of Defence dated 26/7/2018. 13.That the trial court’s assessment of the court record was inaccurate as the plaintiff was allowed to add the 2nd Respondent as a defendant while the file was still active at the Kakamega Environment and Land Court by orders issued on 22nd November 2017. 14.On behalf of the Respondents, it was submitted that there was no order granting leave to the Appellant to amend pleadings to join another defendant or Third Party to the suit. 15.That the Appellant proceeded to introduce another party in the appeal, yet the matter before the trial court only had two (2) parties. 16.The record speaks for itself. It shows that initially there were only two parties in the suit, that is: the plaintiff/appellant herein and 1st Respondent. It shows that concerning the application for joinder, there is an order made on 22/11/2017 as follows:By consent the application dated 20/5/2016 is granted as prayed. Costs in the cause. 3rd party to be served.” 17.From the foregoing, it is clear that the application to add the 2nd Respondent as a Defendant in the suit was allowed on 22/11/2017 before Hon. Justice Matheka when the suit was still at the Environment and Land Court at Kakamega and before transfer thereof to the Magistrate’s Court at Hamisi as submitted on behalf of the appellant. 18.The finding by the trial court that the application dated 20/5/2026 was abandoned and that there was no order for joinder of the 2nd Defendant in the suit was therefore erroneous.Ground 1 of the appeal succeeds. 19.Ground 2 of the appeal faults the trial court for holding that the exhibits adduced by the Appellant were inadmissible when no party had objected to their production in evidence. 20.A reading of the proceedings and judgment in the record of appeal show that the Appellant produced copies of title deeds for the suit lands, a demand letter, a report from Kenya Forest Services, a report by a surveyor, and the Crop Damage and Compensation report as exhibits.No exhibits were produced on behalf of the Defendants/Respondents. 21.The trial court, in the judgment, found and held that: -The above notwithstanding, I have already noted that the documents produced were never filed in court as ordered and in compliance with the provisions of Order 11 and its consequences goes to the root of the case. I will therefore not rely on the documents as they are inadmissible…” 22.It was submitted on behalf of the appellant that the 3 reports were adduced without any objection. That the trial court was under a legal duty to assess their probative value alongside all other documents on record. The Appellant relied on the case of Malindi High Court Civil Appeal Cause No. 15 of 2017, which held that courts ought not to descend into the arena of litigation. 23.On behalf of the Respondent it was submitted that the original document filed by the Appellant did not include the 3 expert reports. That the reports were to be filed within 21 days before the first day scheduled for hearing of the matter, but that was not done. That it was when the court granted leave for further compliance that the reports were filed. 24.Counsel relied on the case of Mativo vs Kenya Commercial Bank Limited (Cause E001 of 2021) where it was held that any document filed outside set timelines and without leave of the court cannot lawfully be part of the court’s record.That the trial court did not err by holding that the exhibits adduced were not admissible. 25.The record of appeal shows that the initial list of documents filed by the Appellant contained only 2 documents, namely certificates of search for L. R. NO. KAKAMENGA/SEREM/291, 343, and 347, and a demand letter dated 30th November 2015. 26.However, among the documents produced as exhibits were the surveyor’s report dated 8th October 2018, exhibit P1, Kenya Forest Service report dated 9th August 2018, exhibit 4, and the Crop damage and Compensation report, exhibit P 5. 27.The record also shows that on 5/7/2018, the trial court had made an order that the parties were to ensure compliance within 21 days from the date.There is no evidence that the respondents protested the production of the documents. 28.In Des Raj Sharma vs Reginam (1953) 19 EACA 310 it was held that the term exhibit is confined to articles which have been formally proved and admitted in evidence. Black’s Law Dictionary, 11th edition, Bryan A. Garner, page 719 defines the term exhibit as “a document, record or other tangible object formally introduced as evidence in court.”The documents were formally produced by the makers thereof and admitted by the court as exhibits. The makers, who were expert witnesses, presented themselves before court for cross-examination by the Respondents and questioning/interrogation, if any, by the court to test the credibility of their evidence and particularly the contents of the documents. 29.The court, having admitted the documents as exhibits, had an obligation to interrogate the same in arriving at the judgment. 30.I find that the trial court erred in holding that the documents were inadmissible and in failing to consider them in arriving at its decision.Ground 2 of the appeal succeeds. 31.The 3rd Ground of appeal faulted the trial court for awarding the Respondents costs of the suit when none of them appeared in court to prosecute their respective positions. 32.The record shows that the Appellant’s suit was dismissed with costs to the Defendants. The record also shows that the hearing of the suit had proceeded in the absence of the Defendants, although they were served and failed to attend court. 33.It was submitted on behalf of the appellant that neither the Respondents nor their Counsel attended court to defend the suit despite filing responses to the claim. That the Respondents were therefore not entitled to any costs. 34.On behalf of the Respondents, it was submitted that it is trite law that costs are awarded to the successful party. That since the Respondents were the successful parties, the trial court did not err in fact and in law in awarding the Respondents the costs. 35.The record shows that both Respondents had filed defences to the Appellant’s claim. They also attended court on some occasions but not on the dates the matter came up for hearing. Hence, they were entitled to costs once the suit was dismissed. Costs are meant to compensate a party for the trouble taken in prosecuting, defending and/or responding to the claim. 36.After having dismissed the suit, the trial court did not err in awarding costs to the Respondents because under section 27 of the Civil Procedure Act, costs follow the event. However, the substantive question before this court in this appeal is whether or not the trial court was right in dismissing the suit. The finding on that question will determine who is entitled to the costs of the suit. 37.The last ground of appeal faults the trial court for failing to consider the evidence on record so as to dispose of the Appellant’s claim on merit. 38.It has been submitted on behalf of the Appellant that had the trial court considered the Appellant’s case on merit, it would have found in his favour on a balance of probabilities. That the Appellant produced a surveyor’s report which showed that the Respondents excavated a total area measuring approximately 0.052 Ha from the Appellant’s 3 portions of land, a report from the Kenya Forest Service that the Respondents destroyed 200 trees belonging to the Appellant whose value was Kshs. 886,160 and a Crop Damage and Compensation report indicating that the damage caused by the Respondents to the Appellant’s tea bushes was Kshs. 37,125.That it is only fair and just that the Appellant be compensated for the loss. 39.On behalf of the Respondents, it was submitted that the appeal calls the court to exercise its powers under Section 3A of the Civil Procedure Act to reopen the case so that all the evidence available to the parties can be put before the court for consideration. That since the Appellant’s case was heard to its logical conclusion, the attempt to have the case re-opened to fill the gaps should not be allowed. 40.That the appeal defeats the pre-trial process and the court’s principal objective of facilitating expeditious and efficient disposal of cases. That the Appellant intended to introduce an inconsistent cause of action.Counsel urged the court to dismiss the appeal with costs. 41.From the pleadings filed by the Defendant, namely the respective Statements of Defence, it was not denied that the road project was undertaken. The 1st Respondent only averred that once it gave the contract in respect of the project to the 2nd Respondent as an independent contractor, the 2nd Respondent had the full mandate to execute the contract within the confines of law. It therefore denied liability. 42.The 2nd Respondent, on its part in denying liability, averred that if any property was destroyed in the process of undertaking the project, then the appellant was to blame for encroaching onto a road reserve. No evidence was, however, tendered to support this averment. 43.Through the surveyor’s report, the Appellant proved that encroachment onto his lands happened, and the Reports by the Forest Services and the Crop Damage and Compensation report proved that damage was occasioned to the appellant’s property in the process of the encroachment and the quantum of the damage. 44.I find that the evidence on record was sufficient for the trial court to allow the Appellant’s claim. The trial court therefore erred in dismissing the appellant’s claim with costs. 45.I find that the appeal has merit and hereby allow it. The upshot is that: -i.The judgment of the trial court dated 14th February 2019 is set aside and replaced with a judgment allowing the Appellant’s claim as laid out in the plaint.ii.Costs of the suit and of the appeal are awarded to the Appellant.Orders accordingly JUDGMENT DATED AND SIGNED AT KISUMU AND DELIVERED ON THIS 11TH DAY OF JUNE 2026, VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM.E. ASATI,JUDGE.In the presence of:Atika…Court assistantKundu for the appellantNo appearance for the Respondents.