https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4859

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLA E024 OF 2025** **JOEL MUGO THIGA………………..……………………..……………………..… APPELLANT** **VERSUS** **FRANCIS MWANGI THIGA…………….………………………………………….RESPONDENT** ***(Being an Appeal against the Ruling of the Learned Magistrate Hon. S. Mwangi S.R.M delivered on 20th June 2025 in Murang’a CMELC No. E006 OF 2024)*** **JUDGMENT** 1. The Appellant seeks the following orders in the memorandum of appeal dated 25-6-2025. * 1. **The appeal herein be allowed and the ruling of the trial Court be set aside.** 2. **The Court thereafter allows the application dated 16-12-2024 and review and vary the judgment or order a retrial before another court than the one presided over by Hon. S.N. Mwangi SRM.** 2. The Appellant has preferred four (4) grounds of appeal which are as follows. The learned trial magistrate erred in law and fact- 1. **in her failure to properly to interpret the import of Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules;** 2. **in her failure to find that the Appellant had satisfied the requirements provided for under Order 45 rule 1(1) of the Civil Procedure Rules;** 3. **in her finding that the Respondent was not served and was not aware of the amended plaint which was filed and served after the Appellant was served with a defence and thus filed and served before pleadings closed. The statement of defence was filed on 28-2-2024 and the amended plaint on 5-3-2024. The Court in its judgment has expressly indicated at page 4 paragraph 5 that pleadings closed on 23-7-2024 when the amended plaint was on record;** 4. **by relying on the wrong principles while dismissing the Appellant’s application.** 1. The facts of the case according to the Appellant are as follows. Firstly, he is the registered owner of L.R. No. Loc.14/Kagumoini/1927 which he acquired through transmission in Murang’a High Court Succession Cause No. 564 of 2015 relating to his father’s estate. The suit land mutated from L.R. No.14/Kagumoini/1684 which was to be shared amongst the Plaintiff and his other brother, Cyrus Githinji Thiga. Secondly, the Defendant had constructed semi-permanent structures on the suit land yet the land on which his structures are is not his. Three, the Defendant was unhappy with the way the family land was distributed and he filed a summons for revocation which was dismissed on 26-10-2021. The Plaintiff therefore prayed for the eviction of the Defendant from the suit land, an order of injunction restraining him from trespassing on the land, an order that the OCS Kiriaini Police Station be ordered to provide security during the eviction and costs of the suit. 2. The fact of the case according to the Defendant are as follows. One, the Plaintiff is his biological brother and the two and a third brother, Cyrus Githinji Thiga, are all beneficiaries of the estate of their father, Phinihas Thiga Gatibaru, now deceased. Two, prior to the demise their father, there existed a semi permanent structure on the suit land made of iron sheets. Their late father categorically stated that the said structure should not be demolished under any circumstances. The Plaintiff’s wish to demolish the structure now that he is in possession of the land is against his wish and the structure is meant to preserve the family unity. The Defendant cannot in his good conscience, demolish the house on the suit land because in his belief of African customs, a curse will befall them and their descendants. He has no problem with the Plaintiff getting the land on which the house stands. His only problem is the demolition of the house and the dire consequences that will follow. 3. In her judgment dated 4-12-2024, the learned trial magistrate dismissed the Plaintiff’s suit with costs for the following reasons. Firstly, the Appellant did not serve the Respondent with a demand letter. Secondly, nobody lives in the house and there is nothing inside it. The Court could not therefore understand why the orders sought should issue against the Defendant just because he constructed the house long ago. Thirdly, the Court found that the Plaintiff had not only come to Court with unclean hands but he was using the Court to settle family scores. 4. On 6-12-2024, the Plaintiff filed an application for review of the judgment dated 4-12-2024 on the ground that there was an error apparent on the face of the record pertaining an amended plaint that had corrected the suit parcel No. to read 684 instead of 1684. The motion for review was opposed by the Defendant in his replying affidavit dated 25-3-2025. The reasons for opposing the review were as follows. One, he was never served with the motion but learnt of it when he was following up on costs awarded to him. Two, he was never served with the amended plaint as alleged by the Plaintiff. Three, the Plaintiff has not shown good faith in his conduct of this case and he does not therefore deserve the discretion of this Court. He has not acted fairly procedurally and the motion is just intended to prolong this litigation that should come to an end. 5. In her ruling dated 20-6-2025, the learned trial magistrate dismissed the motion by the Plaintiff. The reasons for the dismissal included non service of the amended plaint on the Defendant and procedural unfairness. 6. The Appellant’s Counsel and the Respondent were to file and serve written submissions within set timelines. The only submissions on record are those by the Respondent. I will frame the issues for determination on the four grounds of appeal on record. I frame the issues under **Order 15 rule 2** of the **Civil Procedure Rules**. The issues that arise from the grounds of appeal are the following. * 1. **Whether the learned trial magistrate failed to interpret Section 80 and Order 45 rule 1 correctly.** 2. **Whether the trial magistrate erred in her finding that the Respondent was not served.** 3. **Whether the trial magistrate relied on the wrong principles in dismissing the Appellant’s application dated 6-12-2024.** 7. This being a first appeal, this Court has the duty of reconsidering, re-evaluating and re-analysing all the evidence on record, drawn its own conclusions but bearing in mind that it neither saw nor heard the witnesses testify and make due allowance for this disadvantage. See **Selle vs. Associated Motor Boat Co. Ltd. and Others [1968] EA 123**. I have carefully considered the appeal in its entirety including the grounds, the entire record, the written submissions and the applicable law. I find as follows on the three issues. 1. Regarding the first issue, I find no error on the part of the trial magistrate in interpreting Order 45 rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act. In her elaborate ruling dated 20-6-2025, the trial magistrate made a clear breakdown of the alleged amended plaint and its service upon the Defendant. She gave a clear concatenation of events leading to the pretrial conference. The learned magistrate had the conduct of the case and had the advantage of recalling who appeared before her on the mention dates and that they said. As per the holding in **Selles case (Supra),** she was in a better position to judge than the Appellate court. It is therefore my finding that there was no error on the face of the record. An error apparent on the face of the record is obvious, self-evident and patent from the record itself. It does not require elaborate argument or evidence to identify it. It is a clear mistake made by the Court and not by a party. It includes a mathematical or arithmetical error, a clerical or typographical mistake that affects the decision, a misstating of an undisputed fact appearing on record, granting a relief that was not sought by the parties and so forth. In this case there were three reasons for dismissing of the Appellant’s case and none of them had anything to do with the land parcel number that the amendment sought to correct. 1. The trial magistrate did not err in her finding that the Respondent was not served. She had the conduct of the case herself and was correct in her analysis of how the events unfolded regarding the service of the amended pleadings. 2. Finally, since the holding had nothing to do with the suit parcel number but other considerations, the trial magistrate did not rely on wrong principles and if she did, it was immaterial to the decision made on 4-12-2024. 3. In conclusion and for the reasons given above, I find **no merit** in the appeal dated 25-6-2025 which **I dismiss** with costs to the Respondent. **It is so ordered.** **Dated, Signed and Delivered virtually at Murang’a this 28th day of July, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant – Antony** **Appellant’s Counsel – Mr Mbugua** **Respondents - Present in person, later**