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Court of AppealAllowedNot stated in the judgment

Kimani alias Samuel Maina Gichuhi & 2 others v Gichuhi (Civil Appeal 34 of 2020) [2025] KECA 991 (KLR)

Court of Appeal of Kenya
23 May 2025
2,081 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a unanimous judgment of the Court of Appeal at Nyeri (Lesiit, Ali-Aroni and Muchelule, JJ.A) delivered on 23rd May 2025 in a family land dispute between siblings. The respondent had sued his three brothers in the Environment and Land Court at Murang'a (J.G. Kemei, J.) alleging fraudulent transfer and subdivision of the family parcel Forthall Loc.13/Karunge/1181. A consent in January 2018 resolved part of the claim; the balance proceeded to hearing on 5th September 2019, when the trial judge declined an adjournment sought because the appellants' counsel was absent and proceeded ex parte, although the appellants themselves were present. The judge awarded damages for destroyed crops, valuation fees, general damages and a permanent injunction. On appeal, the appellants' sole pressing complaint was that they were condemned unheard: they were neither informed of their right to cross-examine the respondent and his witness, nor invited to testify in rebuttal. The Court held that written submissions, which the trial judge did consider, cannot replace evidence, and that a judgment reached in violation of the right to a fair hearing under Article 50(1) cannot stand even if otherwise correct on the merits, following Onyango Oloo v Attorney General and General Medical Council v Spackman. The appeal was allowed on that ground alone, the judgment and decree of 11th December 2019 were set aside, a fresh hearing was ordered before another Judge on the remaining prayers of the plaint, and, as a family dispute, each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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

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01

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

Holding

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.

Reasoning

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.

p. 4
02

Whether the appellants' written submissions, which the trial judge considered, cured the violation

Holding

No. Submissions cannot take the place of evidence.

Reasoning

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.

p. 4
03

Whether a judgment that is otherwise correct on the merits can survive a violation of natural justice

Holding

No. A decision made in breach of the rules of natural justice cannot be permitted to stand regardless of its merits.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The appeal is allowed
  2. 2.The judgment and decree dated 11th December 2019 are set aside
  3. 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. 4.Each party shall bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

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

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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.
p. 5Final orders - disposal of the appeal
This is a family dispute. Each party shall bear its own costs.
p. 5Costs order
Written submissions cannot replace evidence.
p. 4Submissions versus 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.
p. 4Right to be heard (quoting Mbaki v Macharia)
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.
p. 4Effect of breach of natural justice on the merits

Issues in the judgment

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minor

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.

minor

The judgment does not state the appeal number or neutral citation by which this appeal itself is identified.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.