https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3646

Jefwa & another v Kamie & another (Land Case Appeal 15 of 2023) [2026] KEELC 3646 (KLR) (19 May 2026) (Judgment) Neutral citation: [2026] KEELC 3646 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Land Case Appeal 15 of 2023 FM Njoroge, J May 19, 2026 Between Julius Baya Jefwa 1st Appellant Samuel Kazungu Baya 2nd Appellant and Karisa Kazungu Kamie 1st Respondent Registrar Of Titles 2nd Respondent Judgment 1.The appellants herein being aggrieved by the decision of the R. Amwayi Principal Magistrate delivered at Kaloleni on 11th October 2023 have lodged the present appeal. In the Memorandum of Appeal dated 27th October 2023, the following grounds have been set out:That the learned Magistrate erred in law and in fact in:a.dismissing the appellants Notice of Motion dated 17th June 2023;b.that she misdirected herself when exercising her judicial discretion and arrived at a wrong decision;c.that she failed to properly evaluate the evidence and reasons given by the appellants in their application to set aside the ex parte judgment and as a result arrived at a wrong decision;d.failing to take into account and or consider the defence filed by the appellants while exercising her judicial discretion. 2.The appellants pray for the following reliefs:a.This appeal be allowed;b.The ruling and order made on 11th October 2023 by the R. Amwayi, Principal Magistrate Principal Magistrate in PMC ELC Case No E002 of 2020 be set aside and be substituted with a ruling and order allowing the appellant’s Notice of Motion dated 17th June 2023 in its entirety with costs,c.The appellants be awarded costs of this appeal. 3.The background to the present appeal is that the appellants were sued alongside the Registrar of Titles in the Kaloleni Magistrates Court Case vide plaint in Kaloleni PMC ELC Case No E002 of 2020 dated 2nd October 2020 and filed on 22nd October 2020. They entered appearance through Ms. Gunga and Company advocates on 24th November 2020 which Memorandum of Appearance was served on the plaintiff’s counsel and acknowledged on 25th November 2020 with the latter’s official stamp. They filed a defence on 24th November 2020 through their advocate on the record. They also filed a list of witnesses and witness statements as well as a list of documents. 4.On 4th April 2023 the matter was called out in the morning when the plaintiff was represented by one Mr. Oyas and Mr. Mangaro represented the defendants and the court directed that the matter be heard at 11:30 a.m. At 10:30 a.m., the matter came up when Mr. Khavuchi holding brief for Mr. Obonyo for the plaintiff appeared. 5.The matter came up later at 11:10 a.m. when Mr. Oyas holding brief for Mr. Obonyo appeared and it proceeded for hearing and the plaintiff gave evidence very briefly by merely adopting his witness statement dated 22nd October 2020 as his evidence-in-chief and his documents as his exhibits as listed in the list of documents. He prayed that the prayers in the plaint be granted, and his case was marked as closed. Mr. Oyas also prayed that the defence case be marked as closed and the trial Magistrate gave a mention for 10th May 2023 for submissions. On 10th May 2023, the matter came up before the trial Magistrate in the presence of Mr. Oyas for the plaintiff and without any appearance for the defendant when Mr. Oyas confirmed that he had filed submissions and judgment was set for 14th June 2023. 6.Judgment in the matter was delivered on 14th June 2023 granting the plaintiff's claim and ordering revocation of the appellant's title. 7.On 17th July 2023, the defendants filed the Notice of Motion of even date. They sought the following prayers in that motion:a.That the firm of Gunga Mwinga & Company advocates be declared to have ceased to be the advocates acting for the defendants and the firm of JK Mwarandu & Company do come on record for the defendants;b.That there be a stay of execution of the judgment and decree of a court passed on 14th June 2023 pending the hearing and determination of the application;c.That the judgment and decree of the court passed on 14th June 2023 and all consequential orders be set aside;d.That the order made on 4th April 2023 closing the plaintiff’s case and also closing the first and second defendants’ case be set aside and the Plaintiff be recalled for purposes of cross-examination by the advocate for the first and second defendants and thereafter the first and second defendants be allowed to testify in defence of the plaintiff (sic) case and call their witnesses;e.That the costs of the application be caused in the cause. 8.The grounds upon which the application was brought were as follows: that Mr. Gunga Mwinga, the sole proprietor in the firm that had represented the appellants had died in the month of December 2020 and the firm was not in operation; that the circumstances compelled the hiring of another advocate to conduct the matter and on 4th April 2023 the appellants attended court with all their witnesses only to be informed by the personnel at the court registry that the trial court had left for Mombasa with the court files and that the case would be heard at Mombasa. The appellants did not see their advocate at the court precincts. On the 16th June 2023 the appellants returned to the court registry to inquire about the case and they were informed the plaintiff’s case was heard ex parte on 4th April 2023 and that judgment had already been delivered on 14th June 2023. The appellants stated that they had been condemned unheard and that it would afford a just determination of the case if they were also allowed to testify in their defence and to also call their witnesses to testify under the new advocate. The application was supported by the sworn affidavit of the first appellant. 9.The application dated 17th July 2023 was opposed by the 1st respondent vide a replying affidavit dated 28th July 2023. In that affidavit, the deponent stated as follows: no authority had been annexed to the affidavit in support of the application to show that the second defendant had authorized the first defendant to swear the affidavit on his behalf; that after their advocate died, a mention was fixed for 18th February 2022 to confirm whether the appellant had appointed another firm to work for them. At the same time, the Law Society of Kenya Mombasa Chapter confirmed that Godfrey Mutubia of Sherman Nyongesa & Mutubia Advocates had been appointed to take over the matter; that Mr. Mutubia appeared in court on 8th March 2022 and stated that the applicants took away their files and that thus he had no instructions on the matter and the court ordered personal service upon the appellants. On the 31st March 2023, the Appellants were served with a mention notice for 6th April 2022; that on 10th May 2022, the appellants were in court when the hearing date of 27th July 2022 was set, and on 27th July 2022, there appellants were present in court and they stated that they had appointed a Mr. Mwangunya represent them; that the appellants were served with a hearing notice for 22nd February 2023 and an affidavit of service was filed on 20th February 2023, but they never attended Court on 22nd February 2023; that the appellants were served with a hearing notice dated 28th February 2023 for hearing on 4th April 2023 and that on that date, the court was satisfied with the service, and hearing proceeded in the absence of the appellants; that the appellants have not justified their non-appearance at the hearing of the case. 10.Ruling on the application was delivered on 11th October 2023 dismissing the appellant’s application. In her ruling the Magistrate identified the following issues for determination:a.Whether leave should be granted for the firm of J.K. Mwarandu and Company advocates to come on record for the appellants;b.Whether there has been raised sufficient ground to set aside the impugned judgment and if so whether there should be a stay of execution of the impugned judgment;c.Who should bear the costs? 11.Regarding the first issue, the Magistrate allowed the firm of J.K. Mwarandu and Company Advocates to come on record pursuant to Order 9 Rule 9A of the Civil Procedure Rules since there was no opposition to such coming on record. 12.Regarding the second issue, the Magistrate observed that the appellants’ case is that they attended Court on 4th April 2023 with their witnesses by they did not see their advocate who was to handle their case at the court precincts and they were informed by the court personnel at the registry that the trial court had left for Mombasa and the case would be heard from Mombasa; that on 16th June 2023, they sought to find out from the court registry what had transpired and they were informed that the matter had been heard and judgment issued. The Magistrate stated that a careful perusal of the materials on record showed that the appellants were properly served with a hearing notice for the hearing scheduled for 4th April 2023 but they were not in attendance. She observed that it is clear from the record of the court that the appellant had notice of the proceedings in court and the hearing notices but failed to avail themselves or appoint another advocate to represent them. She held that there was no sufficient cause as to why they failed to appear in court or appoint another advocate to represent them. She declined the prayer for stay of execution of judgment and dismissed their application save for the prayer allowing the advocate to come on record thus prompting the present appeal. Analysis and determination. 13.The only issue that arises in this appeal is whether the Magistrate erred in law and in fact in failing to grant the appellants’ application for setting aside judgment. The affidavit in support of the application stated that the appellants instructed Mr. Mwangunya to take over the conduct of the matter and that on 4th April 2023, the appellants attended Court with all their witnesses but they were informed by the personnel at the court registry that the trial court had left for Mombasa with the court files and that the case would be heard at Mombasa. They also state that they did not see their advocate Mr. Mwangunya at the court precincts on that day of hearing; that they went away and later on attempted to find out what had transpired regarding their case and they were informed that the case was heard on the very day it had been scheduled for hearing, that is, 4th April 2023, and that judgment had already been delivered on 14th June 2023. The appellants maintained in their supporting affidavit that they had also learnt by way of perusal of the proceedings that on 4th April 2023, one Mr. Mangaro, advocate, attended Court briefly but never attended the proceedings later in the day. 14.This court has noted that the advocate initially engaged by the appellants to handle their case met his demise barely 2 months after he had been so appointed. Service of process continued being affected on his firm but through another firm in Mombasa, Sherman Nyongesa & Mutubia Advocates. 15.Whereas the first respondent’s advocates were able to contact and serve process upon Sherman Nyongesa and Company Advocates, from the narrative given by the appellants, they had upon the demise of their advocate engaged the services of an advocate called Mwangunya. When the 1st respondent states that the appellants took away their file which had been in the custody of the deceased advocate, he does not clarify who surrendered the file, and whether it was so surrendered directly to the appellants or to Mr. Mwangunya advocate. Although the letter dated 25th January 2021 from the LSK directed that Mr. Godfrey Mutubia, advocate be contacted regarding the matters previously held by the appellant deceased advocate, there is no indication that they said Mr Mutubia and the appellants ever met before 4th April 2023 which was the date of the hearing of the matter. 16.However, on 27th April 2022, the first appellant had informed court that the appellants had engaged Mr. Mwangunya to handle the case on their behalf, a statement he repeated on the next hearing date that is 27th July 2022 and, on each occasion, he was allowed time to prepare for the hearing. 17.It is not known how a Mr. Mangaro came into the matter on 4th April 2023 because even according to the record, he does not indicate that he is holding brief for Mr. Mwangunya or for any other person. It cannot be known why he was placed onto the record because the appellant’s counsel was Mr. Mwangunya. Also, the person said to be Mr. Mangaro appeared only in the morning on 4th April 2023 presumably at the court’s call over at 9:00, and did not appear again for the matter. In the meantime, the appellants were looking for their advocate by the name Mr. Mwangunya. They were also informed that the court would hear the matter at Mombasa. In all the events of the day, one curious thing is that though the matter was scheduled for hearing at 11:30 a.m. the same was called out first at 10:30 a.m. and later on at 11:10 a.m., at least 20 minutes before the time it was scheduled for hearing. The hearing was extremely brief and involved only a self-introduction of the 1st respondent and two more statements, namely that the witness was adopting his witness statement dated 22nd October 2020 as his evidence-in-chief, and that he was also adopting the documents he had filed as per his list of documents as his exhibits. In this court’s estimation that is a process that could have hardly taken 10 minutes. It is doubtful that by the time the proceedings closed that day that the time earlier scheduled for hearing that is 11:30 a.m. had arrived. If Mr. Mangaro had expected to meet with the appellants at 11:30 a.m. in court to proceed with the hearing of the respondents’ case, then even if he had attended, he would have found that the matter had already been concluded. It is not clear what happened on the material day after the 1st respondent’s case was heard ex parte. It is not known whether the Magistrate continued sitting at Kaloleni that day, or whether she went to Mombasa as the appellants alleged, they had been informed at the registry. The respondents are silent as to whether there were any other cases proceeded later that day. It is not known whether Mr. Mangaro or Mr. Mwangunya attended court and found the case concluded and went away. However, one thing is certain: the case was heard 20 minutes before the scheduled hour and it was so brief a hearing that anyone who attended the court precincts on that day at the appointed hour of 11.30 am could not have possibly found the court still proceeding with it. It ended very early. They would have still missed the hearing. It is also not known whether Mr. Mwangunya and the appellants who claim to have been in the court precincts that morning missed one another merely by chance. In other words, there is total darkness as to what happened after the case proceeded before the appointed hour. 18.There should always be predictability in terms of when court proceedings should begin. In the eyes of this court the commencement of a hearing before the hour it is scheduled to start is capable of disadvantaging a litigant or the advocate who did not expect the hearing to begin earlier. This court is convinced that it did disadvantage or prejudice the appellants herein and their counsel, either Mr. Mwangunya or Mr Mangaro (if he had any instructions from Mr. Mwang,unya to hold his brief) because the record does not record any other event that took place after the hearing. 19.Also, in the absence of any other evidence to the contrary from the respondents, this court must believe the statement made by the appellants that they looked for Mr. Mwangunya in the court precincts and they did not find him, and so they left after being informed that the court would sit at Mombasa. These are matters which the Magistrate ought to have considered when she was assessing the merits of the application for setting aside dated 17th July 2023, but it is evident that she did not do so. The court record alone was clear evidence before her, upon which she could have based the exercise of her discretion in favour of the appellants. She should have appeciated the fog that surrounded the events of 4th of April 2023, both during and after the hearing had taken place and allowed the application wholly but she failed to do so. Consequently, she arrived at the decision, erroneous through, that there was no good basis upon which her discretion could be exercised in favour of the appellants. 20.This court is of the view that her failure to consider those matters set out herein above constituted a grave error that prejudiced the appellant’s right to a hearing and a fair hearing. Perchance she had considered those matters, she would have arrived at the decision that the circumstances demanded that she allow the appellants’ application in the interests of justice. Consequently, the ruling and order issued by the magistrate on 11th October 2023 must be set aside. 21.This court therefore finds that the present appeal has merit and it is allowed as prayed. A copy of this judgment shall be placed in the lower Court file record for Kaloleni PMC ELC Case No E002 of 2020 and that file shall with expedition be remitted back to the Kaloleni Law Courts for hearing and final determination of the main suit by any Magistrate other than Hon. R. Amwayi PM.It is so ordered. DATED, SIGNED AND DELIVERED AT MALINDI VIRTUALLY THIS 19TH DAY OF MAY 2026.MWANGI NJOROGEJUDGE, ELC MALINDI.