[2023] KEELC 18688 (KLR)

Komu v Ndua (Sued as the Legal Representative of Suleiman Ndua Kairie); Komu (Interested Party) (Environment and Land Appeal 1 of 2018) [2023] KEELC 18688 (KLR) (6 July 2023) (Judgment)

Neutral citation: [2023] KEELC 18688 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment and Land Appeal 1 of 2018

BM Eboso, J

July 6, 2023

Between

Peter Githiu Komu

Appellant

and

Peter Chege Ndua (Sued as the Legal Representative of Suleiman Ndua Kairie)

Respondent

and

Joseph Mureithi Komu

Interested Party

(Being an Appeal against the Judgment of Hon B. A. O Asunah, Resident Magistrate, delivered on 21/8/1997 in Thika Principal Magistrate Court Civil Case No. 247 of 1994)

Judgment

Introduction and Background 1. It does emerge from the memorandum of appeal and from the record filed in this appeal that the appeal was initially filed in the High Court at Nairobi as Nairobi HCCA No 358 of 2014. It was subsequently transferred to Thika Environment & Land Court and registered as Thika ELC Appeal No 1 of 2018. The appeal challenges the Judgment rendered by Hon. B. A. O Asunah, Resident Magistrate, on 21/8/1997 in Thika SPMC Civil Case No 247 of 1994. The late Suleiman Ndua Kiarie was the plaintiff in the said case. His estate is represented in this appeal by Peter Chege Kuria, the respondent in this appeal. The appellant in this appeal, Peter Githiu Komu, was one of the two defendants in the trial court. The other defendant was Joseph Mureithi Komu, the interested party in this appeal.

2. The appeal was brought seventeen years after the impugned Judgment. It was filed after the appellant obtained an order by the High Court [Nyamweya J] enlarging the time for lodging an appeal against the impugned Judgment. The record of the trial court shows that the impugned Judgment was rendered after the appellant, together with his co-defendant in the trial court [the interested party], failed to tender defence evidence during trial.

3. For the avoidance of doubt, it is noted from the record of this court that the interested party attended a session of this appeal on 14/3/2023 and was duly identified by the appellant. He orally applied to be given time to participate in the appeal. The court granted him the plea and vacated the judgement date that had been reserved during the preceding virtual court session. The interested party neither filed submissions nor attended the subsequent court sessions. It is therefore clear to the court that the interested party [Joseph Mureithi Komu] is fully aware of this appeal and has elected to ignore it.

4. The following are the seven key issues that fall for determination in this appeal: (i) Whether this appeal is statute barred; (ii) Whether this appeal is incompetent on account of lack of a certified copy of the decree; (iii) Whether this appeal is incompetent for lack of a prayers in the memorandum of appeal; (iv) Whether the trial court erred in proceeding to render a judgment in the absence of evidence by the appellant; (v) Whether the trial court rendered a judgment in an unrelated cause, to wit, Thika SPMC Civil Case No 2447 of 1994 instead of Thika SPMC Civil Case No 247 of 1994; (vi) Whether Thika SPMCC Civil Case No 247 of 1994 was res judicata; and (vii) Whether the plaintiff in the trial court [the late Suleiman Ndua Kiarie] discharged his burden of proof.

5. Before I dispose the above issues, I will briefly outline the background leading to this appeal. For convenience, I will refer to the late Suleiman Ndua Kiarie as “the deceased”.

6. Through a plaint dated 21/2/1994, the deceased sued the appellant together with the interested party, seeking: (i) an order directing the duo to reconvey to him three acres of land comprised in title number Kiganjo/Gatei/50; (ii) an order authorising the executive officer of the trial court to sign documents necessary for reconveying to him the three acres; and (iii) costs of the suit.

7. The case of the deceased was that, he was at all material times the registered proprietor of: (i) land parcel number Kiganjo/Gatei/46 [hereinafter referred to as “parcel number 46”]; and (ii) land parcel number Kiganjo /Gatei/50 [hereinafter referred to as “parcel number 50”]. The appellant and the interested party were his nephews. In 1988, the two demanded land from him on the basis of a customary trust. He acceded to the demand and they obtained consent of the Land Control Board authorising conveyance of three acres comprised in parcel number 50 to the duo. The duo subsequently reneged on the agreement that had been reached and demanded to be given four acres out of parcel number 46 instead of the three acres that they had been offered in parcel number 50. They subsequently sued the deceased in Gatundu Resident Magistrate Court Civil Case No 11 of 1990 demanding four acres out of parcel number 46. They obtained Judgment awarding them four acres out of parcel number 46. He added that his appeal to the High Court against the Judgment was unsuccessful.

8. The deceased contended that upon obtaining the Judgment awarding them four acres out of parcel number 46, the duo proceeded to fraudulently obtain a registration as co-proprietors-in-common of 1. 5 acres each, in parcel number 50. When he perused the parcel file relating to parcel number 50, he noted that it contained the earlier consent as the basis for the said registration. It was his case that he never conveyed the 3 acres to the duo. He contended that the registration was fraudulent. He urged the trial court to grant the reconveyance orders relating to the three acres that he contended had been fraudulently registered in the names of the duo.

9. The appellant filed an undated defence in which he admitted that the deceased was at all material times the registered proprietor of the two parcels of land. He added that their late father was entitled to half share of parcel number 46 even though the Gatundu Senior Resident Magistrate Court awarded them only 4 acres. He further contended that parcel number 50 was previously owned by their late step-brother, Kiarii Githiu “B”, who had obtained it as a a “direct legacy” from their grandfather, hence they were entitled to 3. 5 acres out of the said parcel as their “share in the legacy”. He contended that they were entitled to both the 4 acres in parcel number 46 that they were awarded by the Gatundu Resident Magistrate Court and the 3 acres in parcel number 50 that the deceased sought to be reconveyed back to him.

10. Both the record of appeal and the supplementary record of appeal do not bear a defence by the interested party. Similarly, the original record of the trial court does not bear any defence by the interested party.

11. Trial commenced on 3/8/1995 before Hon B A O Asunah in the presence of all the parties and their advocates. The deceased testified as PW1 and was cross-examined by the defence counsel. In summary, his testimony was that the appellant and the interested party were sons of his late brother who died in 1938. The two were entitled to a portion of the family land. In 1988, the duo approached him and requested for their share of family land. Subsequent to that, it was mutually agreed that the deceased would give them 3 acres out of parcel number 50 as their share of family land. They attended the Land Control Board and obtained consent authorising conveyance of 3 acres to them out of parcel number 50 in the ratio of 1. 5 acres to each of them. The duo later reneged on the agreement and instituted Gatundu Resident Magistrate Court Civil Case No 110 of 1990, demanding to be given a share of their legacy out of parcel number 46 as opposed to parcel number 50. The Resident Magistrate Court at Gatundu subsequently awarded them 4 acres out of parcel number 46. The High Court upheld the award in Nairobi High Court Civil Appeal No 42 of 1992. He then proceeded to subdivide parcel No 46 to excise the 4 acres that had been awarded to the duo.

12. The deceased added that he subsequently learnt that the duo had gone to the Kiambu Land Registry and had caused a fraudulent registration to be effected in the land register relating to parcel number 50 reflecting each of the two as a proprietor-in-common of 1. 5 acres. He contended that he was not privy to the said registration, adding that he still held his original title reflecting him as the sole proprietor of parcel number 50.

13. Among the documentary evidence which the deceased produced was an affidavit sworn by the duo on 11/4/1991 and filed in Gatundu Resident Magistrate Court Civil Case No 11 of 1990 in which they jointly deposed as follows:“5. That land Kiganjo/Gatei/50 is not his property, he was registered as a trustee for the family of the deceased Kiarii Githiu “B” who passed away ref exhibit “A” attached hereof.

6. That the beneficiaries of Kiarii Githiu “B” are claiming their father’s property, namely Kiganjo/Gatei/50 and thus we cannot share that land.”

14. The deceased led evidence by the Area Assistant Chief, John Kago Wachira [PW2], who testified that the duo together with their mother had previously been awarded 3 acres by his predecessor but they went back demanding the award to be enhanced to 4 acres. It was his evidence that it was subsequently agreed that the duo were to be jointly given 4 acres so that each of the them would end up with 2 acres.

15. The deceased also led evidence by Kiragu Kiarie [PW3], a step-brother to the deceased and a step-uncle to the duo. His evidence was that parcel number 50 belonged to the deceased.

16. Upon closure of the deceased’s case, the duo were granted adjournments on several dates but they never tendered defence evidence. Consequently, the trial court rendered the impugned Judgment in which it made a finding in favour of the deceased and granted the deceased orders reconveying to him the 3 acres that were contended to have been fraudulently registered in the names of the duo in the land register relating to parcel number 50.

Appeal 17. No challenge was raised against the Judgment for seventeen years. Indeed, the deceased died without facing any challenge against the Judgment. Seventeen years later, the appellant brought this appeal challenging the Judgment on the following verbatim grounds:1. The learned Judge (sic) erred in law and in fact in proceeding to deliver a final judgment in this matter when the defendant’s witnesses had not given evidence on oath nor had they been given opportunity to be in court on cross examination.

2. The learned trial magistrate erred in law and in fact in disregarding the fact that the matter in dispute had earlier been determined by a superior court hence she had no jurisdiction to hear and determine the same.

3. The learned trial magistrate erred in law and in fact in giving judgment in favour of the plaintiff when he had not adduced any evidence to prove the claim.4. The learned trial magistrate erred in law and in fact in delivery an erroneous document and in particular delivering a judgment in respect to another case i.e. CMCC 2447 of 1994 instead of Civil 247 of 1994.

5. The learned trial magistrate erred in law and in fact in disregarding the fact that the appellant has lived in land in dispute for forty years and as such he is entitled by adverse possession to own the same.

6. The learned trial magistrate erred in law and in fact in re-opening a matter to which the court had become functus officio.

7. The learned trial magistrate erred in law and in fact in delivering an ex-parte judgement and without giving the defendant chance to defend himself and as such relied on erroneous judgment.

8. The learned trial magistrate erred in law and in fact in delivering a judgment which she had not signed and certified.

18. The appellant did not seek any relief in the memorandum of appeal.

Appellant’s Submissions 19. The appeal was canvassed through written submissions, dated 4/2/2020 and 25/08/2022 and a reply to the respondent’s submissions dated 2/3/2023. In his submissions dated 4/2/2020, the appellant argued that filing of the suit in the trial court was triggered by the High Court’s dismissal of the respondent’s appeal in Nairobi High Court Civil Appeal No. 42 of 1992. The appellant contended that the suit in the trial court was an abuse of the court process because the dispute had already been determined by a superior court. The appellant further submitted that he was not given a chance to defend himself in the trial court and that the trial magistrate erred in disregarding the fact that he had lived on the suit land for over 40 years and was therefore entitled to possession of the Land. In his submissions dated 2/3/2023, the appellant contended that leave to file the appeal out of time was given on 31/7/2014.

Respondent’s Submissions 20. The respondent filed written submissions dated 13/4/2021 and 17/2/2023 through the firm of Mwihia & Mutai Company Advocates. Counsel for the respondent contended that: (i) the appeal was incompetent because the record of appeal did not contain a certified copy of the decree; (ii) the appeal was statutorily time-barred; and (iii) the appeal was incompetent because no prayer had been sought in the memorandum of appeal.

21. Counsel submitted that the appellant inexplicably failed and/or omitted to extract and include a certified copy of the decree in the record of appeal, thereby rendering the appeal incompetent and hence it ought to be dismissed. Counsel relied on the decision in Margaret Wangechi Muchoki v Julia Wanyiri Muchoki Nyeri HCCA 123, where the court held that it was mandatory that the record of appeal had to contain a copy of the decree or order challenged, and that where a copy thereof is not attached, there would not be jurisdiction to entertain the appeal.

22. It was counsel’s submission that the memorandum of appeal was dated 11/8/2014 and filed on 20/8/2014 yet Judgment was delivered on 21/8/1997. Counsel contended that the appeal should have been filed within 30 days after the Judgment. Counsel argued that the appeal should be dismissed because it was filed 17 years after the Judgment. Lastly, counsel submitted that the appellant had failed to tell the court the relief that he sought, hence the appeal was incompetent.

Analysis and Determination 23. I have read and considered the original record of the trial court; the record filed in this appeal; the grounds of appeal; the parties’ respective submissions; the relevant legal frameworks; and the relevant jurisprudence. As observed in the introductory part of this Judgement, the following are the seven key issues that fall for determination in this appeal: (i) Whether this appeal is statute barred; (ii) Whether this appeal is incompetent on account of lack of a certified copy of the decree in the record of appeal; (iii) Whether this appeal is fatally incompetent for lack of a prayer in the memorandum of appeal; (iv) Whether the trial court erred in proceeding to render a judgment in the absence of evidence by the appellant; (v) Whether the trial court rendered a judgment in an unrelated cause, to wit, Thika SPMC Civil Case No 2447 of 1994 instead of Thika SPMC Civil Case No 247 of 1994; (vi) Whether Thika SPMC Civil Case No 247 of 1994 was res judicata; and (vii) Whether the plaintiff in the trial court [the late Suleiman Ndua Kiarie] discharged his burden of proof.

24. I will dispose the seven issues sequentially in the above order. Before I do that, I will briefly outline the principle that guides this court when exercising appellate jurisdiction.

25. This is a first appeal. The principle upon which a first appellate court exercises jurisdiction is well settled. The task of the first appellate court was summarized by the Court of Appeal in the case of Susan Munyi v Keshar Shiani (2013) eKLR as follows:-“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”

26. The above principle was similarly outlined in Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”

27. The first issue is whether this appeal is statute-bared. Counsel for the respondent contended that this appeal was filed seventeen years after delivery of the impugned Judgment, hence it is statute-barred and should be dismissed. On his part, the appellant submitted that he obtained an order from the High Court enlarging the time for lodging the appeal.

28. The proviso to Section 79G of the Civil Procedure Act granted the High Court discretionary powers to admit an appeal out of time. Page 7 of the record of appeal contains a ruling rendered by Nyamweya J on 31/7/2014 in Nairobi High Court Miscellaneous Civil Application No 656 of 2010 in which Nyamweya J granted the appellant leave to lodge an appeal against the impugned Judgment within 30 days. Page 15 of the record of appeal contains the formal order extracted from the said ruling. There is no record of any material suggesting that the order enlarging the limitation period which Nyamweya J gave was subsequently set aside by the Court of Appeal or by the same court through the review mechanism.

29. It does emerge from the court record that upon obtaining the above order, the appellant filed the present appeal on 12/8/2014. The above date was within the time frame of 30 days that Nyamweya J had granted. Suffice it to state that, at this stage and in the absence of any formal application, this court does not have jurisdiction to review the order of Nyamweya J. For the above reasons, my finding on the first issue is that by dint of the order granted by Nyamweya J on 31/7/2014, this appeal is not statute-barred.

30. The second issue is whether this appeal is incompetent on account of lack of a certified copy of the decree. I have looked at the original record of appeal. It does not contain a certified copy of the decree appealed against. It does, however, emerge from the court record that the issue of lack of a certified copy of the decree was raised on 26/10/2021. After hearing counsel for the respondent, the court exercised its discretion under Order 42 rule (2) of the Civil Procedure Rules and granted the appellant leave to file a supplementary record of appeal containing the decree. The subsequent record of appeal has the decree at page 5. The issue of lack of a decree is therefore moot. That is my finding on the second issue.

31. The third issue is whether this appeal is incompetent for lack of a prayer. Order 42 rules 1(1) and (2) provides the following general framework on the general outlook of the instrument through which an appeal to the High Court or to this Court is initiated:“1. (1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.(2)The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively

2. Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed.”

32. The instrument contemplated under Order 42 rules 1(1) and (2) is called a memorandum of appeal. The law does not expressly require that the relief sought in the appeal be specifically stated in the memorandum of appeal, the way Order 4 rule 6 requires that every relief sought in a suit initiated through a plaint be specifically stated. In an appeal to this court, in which the appellant does not specifically state the specific relief that is sought, this court disposes the appeal within the powers donated to it under Section 78 of the Civil Procedure Act which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—(a)to determine a case finally;(b)to remand a case;(c)to frame issues and refer them for trial;(d)to take additional evidence or to require the evidence to be taken;(e)to order a new trial.(2)Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.

33. Failure to spell out the precise disposal orders that the appellate court should make is not fatal to an appeal. That is my finding on the third issue.

34. The fourth issue is whether the trial court erred in rendering a judgment in the absence of evidence by the appellant. I have looked at the record of the trial court. The appellant was the 1st defendant in the trial court. Hearing of the plaintiff’s case commenced in the presence of all the parties and their advocates. On 14/9/1995, counsel for the plaintiff applied to close the plaintiff’s case. The record of the trial court shows that when the suit came up for defence hearing on 9/1/1996, both the defendant and their advocate were absent despite them having been served. The trial court adjourned the defence hearing owing to the absence of the defendants. When the matter next came up for hearing on 19/6/1997, the defendants were absent. Counsel for the plaintiff informed the court that counsel for the defendants had been served. Satisfied that service of hearing notice had been effect the trial court fixed the matter for mention on 17/7/1997 for the purpose of reserving a date for judgment.

35. The handwritten record of the trial court shows that on 17/7/1997, Mr Mbugua [counsel for the defendants] attended court and requested to be granted time to make a formal application for the re-opening of the trial for the purpose of defence hearing. The court granted the plea and listed the matter for mention on 7/8/1997 by which time the defendants were expected to file their formal application for re-opening of the trial. Come 7/8/1997, all the parties were present in court. Mr Kimotho held brief for Mr Mbugua [counsel for the defendants]. His presentation to the court was as follows:“We were to get time to file an application.”

36. In response, Mr. Mwihia [counsel for the plaintiff] stated as follows:“He was given time to file an application today and there is none.”

37. Upon listening to the above presentations, the trial magistrate made the following order:“Can’t accommodate them again. Court was on its way to grant its Judgment. Defendants given up to 11. 30 to find out about the application. In its absence court will proceed to give the judgment.”

38. When the court subsequently reconvened at 11. 40 a.m on the same day, all parties were present. Counsel for the plaintiff was present but counsel for the defendants was absent. Counsel for the plaintiff informed the court that he had not been served with the contemplated application for leave to re-open trial. The record shows that one of the defendants addressed the court as follows:“The advocate has not arrived. We can’t go on in his absence as we have another application.”

39. At that point, the trial court reserved 21/8/1997 as the date for Judgment. The appellant was one of the two defendants in the trial court. He did not bother to file any application for the re-opening of trial between 7/8/1997 [the day when the trial court set a date for Judgment] and 21/8/1997 [the Judgment date]. Even after Judgment was rendered on 21/8/1997, the appellant never bothered to apply to the trial court to set aside the Judgment and receive defence evidence. Up to the time the deceased died, the appellant had not bothered to move the trial court for an order setting aside the Judgment and granting them leave to adduce defence evidence. Similarly, up to the time the deceased died, the appellant had not bothered to lodge an appeal against the Judgment. In the intervening period, execution proceedings ensued. The appellant filed in the High Court an application for leave to lodge an appeal out of time seventeen years after the impugned Judgment had been delivered.

40. Taking into account the above circumstances, there is clear evidence on record demonstrating that the trial court did all that was reasonable to afford the appellant a hearing to demonstrate how he obtained the impugned land registration. The appellant together with his co-defendant elected not to tender defence evidence. There is therefore no basis for faulting the trial court for the decision it took to render a Judgment without the appellant’s evidence. Clearly, the appellant and his co-defendant elected not to step into the witness box to demonstrate how they obtained the impugned registration. That is my finding on the fourth issue.

41. The fifth issue is whether the trial court rendered a Judgment in Thika SPMC Civil Case No 2447 of 1994 as opposed to Thika SPMC Civil Case No 247 of 1994. The court has looked at both the uncertified Judgment included in the record of appeal filed by the appellant and the certified copy of the Judgment that is in the original record of the trial court. The court has also looked at the original handwritten Judgment of the trial magistrate rendered on 21/8/1997. Similarly, the court has looked at the certified decree at Page 5 of the appellant’s supplementary record of appeal. Based on the above records, there is no doubt that the trial court rendered its Judgment in Thika SPMC Civil Case No 247 of 1994. The number “2447” is a post-Judgment typing error on part of the person who typed the uncertified judgment which the appellant included in the record of appeal. It is therefore the finding of this court that the trial court rendered its Judgment in Thika SPMC Civil Case No 247 of 1994 AND NOT in Thika SPMC Civil Case No 2447 of 1994.

42. The sixth issue is whether Thika SPMC Civil Case No 247 of 1994 was res judicata. The appellant contended that the dispute between the parties had been adjudicated in Gatundu Resident Magistrate Court Civil Case No 11 of 1990 and in the resultant appeal in Nairobi HCCA No 42 of 1992. Evidence relating to the issue of res judicata was never presented to the trial court. The issue was never canvassed during trial. It cannot be properly raised in this appeal when it was never canvassed by the appellant through evidence during trial.

43. This court has nonetheless looked at the pleadings and the evidential materials that were presented to the trial court by the 1st respondent. It is clear that in Gatundu Resident Magistrate Court Civil Case No 11 of 1990, the appellant and the interested party sued the deceased seeking to be given a portion of land parcel number Kiganjo/ Gatei/46 based on customary trust. In Thika SPMC Civil Case No 247 of 1994, the deceased sought orders reconveying to him three acres comprised in land parcel number Kiganjo/ Gatei/ 50. He contended that the three acres had been registered in the names of the appellant and the interested party fraudulently.

44. Clearly, the cause of action in the two suits were different. Secondly, the subject matters were different. The elements of res judicata that are contemplated in Section 7 of the Civil Procedure Act did not exist. That is the finding of this court on the sixth issue.

45. The Seventh issue is whether the plaintiff in the trial court discharged his burden of proof. There was common ground that the deceased was at all material times the registered proprietor of land parcel number Kiganjo/ Gatei/50. The appellant and the interested party caused themselves to be registered as proprietors- in-common of the said parcel, each owning 1. 5 acres. The deceased denied conveying the land to the duo. He presented evidence indicating the registration was obtained without a duly signed instrument of transfer. On their part, the duo elected not to tender evidence in defence of the impugned registration. In the absence of controverting evidence by the duo, the evidence of the deceased remained unchallenged. In the circumstances, this court is satisfied that the deceased fully discharged his burden of proof as required under the law. That is my finding on this issue.

46. Lastly, the appellant faulted the trial court for not taking into account the fact that he had lived on parcel number Kiganjo/ Gatei/50 for many years. The appellant and the interested party elected not to tender evidence. Consequently, no evidence of prescriptive rights was presented to the trial court. The trial court had no basis for making a finding to the effect that the appellant had acquired prescriptive rights in land parcel number Kiganjo/ Gatei/50.

47. On costs, no proper basis has been laid to warrant a departure from the general principle in Section 27 of the Civil Procedure Act. The unsuccessful party will bear cots of the appeal.

48. For the above reasons, this appeal lacks merit. The appeal is dismissed for lack of merit. The appellant shall bear costs of the appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 6TH DAY OF JULY 2023B M EBOSOJUDGEIn the Presence of: -Mr Peter Komu – Appellant – present in personJoseph Komu – Interested Party – present in personCourt Assistant: Hinga/Osodo