Kimani alias Samuel Maina Gichuhi & 2 others v Gichuhi (Civil Appeal 34 of 2020) [2025] KECA 991 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a land judgment because the parties were never given a chance to testify or cross-examine, even though they were in court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants were to be afforded the right to be heard when the trial proceeded in the absence of their counsel while they were present in court
Key legal issues
#Whether the trial court's proceeding with the hearing in the absence of the appellants' counsel, while the appellants were present, violated Article 50(1) of the Constitution
Yes. The learned Judge was required to inform the appellants of their right to cross-examine the respondent and his witness and to give evidence in rebuttal; proceeding without doing so violated the right to a fair hearing.
The record showed each appellant asked to have counsel present, and the judge declined to adjourn. Even where adjournment is discretionary, the parties present before the court retained their constitutional right to participate: to be present when evidence is given, to cross-examine, to explain themselves and to call witnesses. The judge was expected to inform them of these rights at the close of the respondent's case. Because no such opportunity was given, the hearing condemned parties who were present in court but unheard.
Whether the appellants' written submissions, which the trial judge considered, cured the violation
No. Submissions cannot take the place of evidence.
The respondent argued that since the appellants' counsel filed written submissions which the judge considered, the right to be heard was satisfied. The Court rejected this, invoking its earlier decision in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi that submissions are no substitute for testimony. The right to a fair hearing encompasses the opportunity to testify and to challenge evidence, which submissions alone cannot supply.
Whether a judgment that is otherwise correct on the merits can survive a violation of natural justice
No. A decision made in breach of the rules of natural justice cannot be permitted to stand regardless of its merits.
Relying on Onyango Oloo v Attorney General and General Medical Council v Spackman, the Court held that it is immaterial whether the same decision would have been reached had the hearing been fair. A breach of natural justice renders the decision a nullity. The Court therefore declined to assess the correctness of the damages awarded and instead set the judgment aside entirely for a fresh hearing.
Legal principles established
#- Written submissions cannot replace or substitute for evidence at trial.
- A decision reached in violation of the right to a fair hearing cannot stand, even if it would have been the correct outcome on the merits.
- A party whose counsel is absent remains entitled to participate in the trial of a matter affecting their rights, including by cross-examination and giving evidence.
- Where a judgment is delivered in violation of the right to be heard, it is treated in law as no decision at all.
Court orders
#- 1.The appeal is allowed
- 2.The judgment and decree dated 11th December 2019 are set aside
- 3.There shall be a fresh hearing before another Judge to determine prayers (b), (c), (d), (e), (f) and (g) of the plaint dated 14th July 2016 by the respondent
- 4.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court at Murang'a
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act; the judgment does not state the specific provision
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, on that ground alone, the appeal is allowed and the judgment and decree dated 11th December 2019 are set aside. There shall be a fresh hearing before another Judge to determine prayers (b), (c), (d), (e), (f) and (g) of the plaint dated 14th July 2016 by the respondent.
This is a family dispute. Each party shall bear its own costs.
Written submissions cannot replace evidence.
The right to be heard is a valued right. It would ofiend all notions of justice if the rights of a party were to be prejudiced or afiected without the party being afiorded an opportunity to be heard.
Even if the judgment were to be the correct one, it would still be improper and unfair for this Court to let it stand given that the appellants’ right to fair trial was violated.
Issues in the judgment
#The judgment records the appeal as allowed on one ground only, yet the memorandum of appeal contained four grounds; the remaining grounds are neither expressly determined nor dismissed in the concluding orders.
The judgment does not state the appeal number or neutral citation by which this appeal itself is identified.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani alias Samuel Maina Gichuhi & 2 others v Gichuhi (Civil Appeal 34 of 2020) [2025] KECA 991 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/991/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.