Munyari v Munyari & another

3. It is not clear to us what may have transpired in court between 1988 and 6th February 2001, for the proceedings available before us commence on the latter date. We note that at some point it was mentioned that the original le got lost and the same was reconstructed. We however gather from the record that Ituro died sometimes in 2009 and he was substituted by the respondents who continued the suit on behalf of his estate. At a date which is not clear from the record, the case was transferred from the Chief Magistrates’ Court at Embu to the High Court at Kerugoya, and subsequently to the Environment and Land Court (ELC) at Kerugoya on 20th March 2013, and later to the ELC at Embu where it was nalized. The hearing date was given in court on 13th March 2018 when the learned judge directed that it be heard on 19th June 2018. On that day the respondents (as plaintis) testied and closed their case. The appellant (as defendant) was not present and an application by his counsel to adjourn the case was rejected, an aspect that we will come to later in this judgment. 4. PW1 was Njeru Munyari, the 1st respondent. In a nutshell, his evidence was that though the appellant was registered as proprietor of the suit land, he was to hold 6 acres of it in trust for his father, which he declined to deliver. He testied that he has been residing on the land since 1976, has his home there, and has planted various crops. PW-2 was the 2nd respondent. The late Ituro was his uncle thus the appellant and 1st respondent are his cousins. He substantially echoed the evidence of PW1 though it turned out that he was born in 1980 while the land was registered in 1961. 5. After the two witnesses had testied, their advocate, Mr. Njoroge, applied for an adjournment to call three more witnesses. That application was opposed by Mr. Muraguri, learned counsel for the appellant, and the court declined to adjourn. In a twist of fate, and it was now the turn of Mr. Muraguri to apply for adjournment, as his client, the appellant, was not present, which application was equally rejected and the case closed. Counsel were directed to le submissions, which none did, and the court proceeded to pronounce judgment on 21st February 2021. 6. In the judgment, the learned trial Judge held that he was satised that as the eldest son, the appellant was registered as proprietor of the suit land on his own behalf and in trust for the rest of the family. The learned Judge was of view that the fact that Ituro had alternative land could not preclude the existence of a trust. On the pleading of the appellant, in his statement of defence, that there were previous proceedings, the learned judge held that there was no evidence tendered to support this allegation as the appellant did not attend court. The learned Judge proceeded to make the following orders: 7. a. It is hereby declared that the defendant (now appellant) is holding title no. Gaturi/ Kithimu/421 or any subdivisions thereof on his own behalf and in trust for his siblings. b. That the appellant shall cause a portion of 6 acres to be excised from the suit property and transferred to his younger brother, Njeru Munyari. The excision shall, so far as practicable, take into account the portion of land currently occupied and developed by Njeru Munyari. c. That in default of the appellant’s compliance, the Deputy Registrar of the court shall sign and execute all forms, mutations, and documents to facilitate the transfer of 6 acres out of the suit property to Njeru Munyari. d. Each party shall bear his own costs. Aggrieved, the appellant preferred this appeal on seven grounds which can be collapsed into three as follows: i. That the learned trial Judge erred in nding that the appellant was holding title to the suit land in trust for the respondents. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1788/eng@2026-09-25 2

page 2 of 7

ii. That the claim by the respondents had been extinguished by operation of law as 12 years from the date of registration had lapsed at the time the suit was instituted. iii. That the learned Judge erred in not according the appellant a chance to present his evidence and he was condemned unheard. 8. The appeal was canvassed through written submissions which counsel highlighted at the plenary hearing. In his submissions, Mr. Okwaro, learned counsel for the appellant, submitted that there was no credible evidence to support the claim of trust and relied inter alia on the authority of Twalib Hatayan & Another vs Said Saggar Ahmed Al- Heidy & Others (2015) eKLR and Juletabi Africa Adventure Limited & Another vs Christopher Michael Lockley (2017) eKLR. He further submitted that his client was not accorded a chance to be heard. He pointed out that the application for adjournment was based on ground that counsel could not trace the appellant and therefore, there was justiable reason to adjourn. He pointed out that the appellant had hitherto not sought adjournments. He submitted that this was a land matter and it was unfair for the case to be decided without the appellant being heard. He relied on this court’s decision in the case of Japheth Pasi Kilonga & 8 Others vs Mombasa Autocare Limited (2015) eKLR. 9. For the respondents, Mr. Njoroge, learned counsel, submitted that the mere fact that the appellant was registered as proprietor did not relieve him of his trust obligations and relied on the Supreme Court decision in the case of Kiebia v M’lintari & another (Petition 10 of 2015) [2018] KESC 22 (KLR) (5 October 2018) (Judgment). On whether the claim was time barred, counsel submitted that this was being raised for the rst time on appeal. Nevertheless, to address this ground, counsel referred to Section 20 (1) of the Limitation of Actions Act (Cap 22) Laws of Kenya, which precludes actions for recovery of trust property from the strict timelines in the Act and further relied on the case of Macharia Kihari vs Ngigi Kihari (1994) eKLR to support this position. On the right to be heard, counsel submitted that the appellant was given the opportunity to be heard and that he deliberately failed to attend court. He submitted that the court declined adjournment in line with the need to expeditiously dispose of cases. He pointed out that the case had been pending since 1988. He relied on the case of Union Insurance Co of Kenya Limited vs Ramzan Abdul Dhanji, Civil Application No. NAI 179 of 1998. 10. We have given the appeal due consideration. We observe that among the grounds raised in the appeal is that the appellant deserved to be heard. We opt to start with this ground, because if it succeeds, we will need to remit the case back for hearing, and it will not be necessary to address the other grounds of appeal. 11. At the outset, we appreciate that an adjournment is in the discretion of court. We further appreciate that the extent to which an appellate court will interfere with the discretion of the judge is circumscribed. Counsel for the respondents cited the case of United India Insurance Co. Ltd v. East African Underwriters (Kenya) Ltd [1985] E.A 898) where it was held as follows: “ The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at rst instance, would or might have given dierent weight to that given by the judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: rst, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fthly, that his decision, albeit a discretionary one, is plainly wrong.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1788/eng@2026-09-25 3

page 3 of 7

12. When it comes to an adjournment, Sir G. Graham Paul C.J in the case of H.K Shah & Another vs Osman Allu (1947) EACA Volume XVI, 45, at page 50 commented as follows: “ Appeal Courts will not readily interfere with the exercise by a Magistrate of his discretion as to granting or refusing adjournments, but where his refusal to grant an adjournment amounts to a manifest injustice there is no doubt that the Appeal Court has the right to interfere. Each case must, of course, depend on its particular facts.” 13. Thus, whereas an appellate court would not readily interfere with the exercise of discretion, such court is entitled to intervene where the refusal of an adjournment amounts to manifest injustice. It needs to be appreciated that the Constitution jealously protects the right to be heard. Article 25 (c) provides for the right to a fair trial; Article 47 obligates the State to ensure access to justice; and Article 50 (1) guarantees one the right to a fair hearing. Needless to say, it behoves the court to facilitate the constitutional right to a fair hearing and one of the aspects of a fair hearing is the right to be heard. 14. We are of the considered opinion that when exercising its discretion on whether to adjourn a matter, the court needs to be alive to, among other factors, the following principles: 15. a. The reasons given for the adjournment. b. The nature of the suit before the court. c. The age of the case. d. The conduct of the party applying for adjournment within the litigation. e. Whether such party has previously applied for adjournment. f. The views of the other parties to the litigation on the application for adjournment. g. The extent of prejudice to the other litigant and proportionality of the consequences of failure to adjourn. We elaborate, albeit briey. The court needs to give utmost consideration on the reasons given by one seeking to adjourn the case. If the reason is compelling, it is only fair that the matter be adjourned. As an illustration, if the litigant, or witness is indisposed, to the extent that he is unable to testify, that may constitute a compelling reason to adjourn. The nature of the suit is also important. If the case is weighty, has signicant legal issues, or the ramication of the judgment is extensive, this similarly needs to be taken into account. Generally, a land matter has great impact not only to the parties before court, but even to future generations, and as much as possible a court needs to grant liberty to the litigants to ventilate their case. The age of the case is also of signicance. Where a case has been in court for a considerable period of time parties need to be alive to the overriding objective, which includes the expeditious disposal of cases, and work extra hard to have such case concluded. Extraordinarily eort and sacrice by the court, the parties, and counsel, needs to be exhibited when dealing with a particularly old case as justice delayed is justice denied. The conduct of the party seeking adjournment is equally consequential. Where it is particularly apparent to the court that the party’s conduct within the litigation has been consistently perverse, the court needs to consider the same. A court will easily be excused for being reluctant to exercise its discretion in favour of a party that has gone out of his way to derail the course of justice. Where the party has a history of applying for adjournments for one reason or another, and delaying the matter, the court will factor this, for the simple reason that litigation needs to come to an end. If a party is unable to put his house in order despite directions of the court, such party cannot complain if the court runs out of patience and declines an adjournment. Where it is clear to the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1788/eng@2026-09-25 4

page 4 of 7

court that a party is simply buying time, the court ought to decline the application for adjournment. The extent of prejudice to the other litigant needs to be considered. The court ought to weigh the consequences of the adjournment to the other party. If the adjournment will cause great prejudice to the other party, the court ought to have regard to that. If there will be minimal prejudice, such as one that can be ameliorated by an award of costs, that ought to be considered. This can easily be discerned by considering the reasons given by the other party in opposition or in support of the application. 16. The above are certainly not exhaustive. Neither are these reasons to be looked at in isolation but holistically. The ultimate goal of the court ought to be to do justice to the parties depending on the context of the litigation. It follows that each case will of course need to be considered on its own peculiar facts. 17. We have gone through the record of the case before us. Indeed, this is an old suit commenced in 1988. Despite being in court all those years, we note that it had come up for hearing on three occasions. First, on 20th March 2013, when it came up for hearing before the High Court but it could not proceed for want of jurisdiction, and for that reason it was transferred to the Environment and Land Court for disposal. It is of importance to note that the appellant was present in court on that day. The second time the matter came up for hearing was on 26th November 2013, but the case could not proceed as the appellant had not been served and was absent for that reason. The third time the matter came up for hearing was when the case actually proceeded on 19th June 2018. The appellant was of course absent. We note that when the case was called out for defence hearing, Mr. Muraguri, who was present for the appellant, sought adjournment on the ground that he had been unable to trace his client. There is no record indicating that Mr. Njoroge who was present for the respondents was given any chance to comment on the application for adjournment and the record only shows the court rejecting the application for adjournment. 18. Whereas it is understandable that the court felt the need to quickly dispose of the case, save for its age, the other factors weighed in favour of granting the adjournment. The subject matter of the suit was land and as we have pointed out such matters have an impact not just on the current generation but also future generations and other persons. The disputed parcel of land was signicantly large, to the extent of 6 acres out of 17. In those circumstances, we are of the view that the court ought to have attempted to accommodate the parties as much as possible, considering the stakes. We have also looked at the reasons given for adjournment. Counsel mentioned that he could not trace his client. From the record, the court did not give an opportunity to counsel for the respondents to give his view on this reason, with the court summarily rejecting the application. 19. On the conduct of the appellant, there is no record of him having engaged in any previous behaviour that can be considered as derailing the course of justice. Neither does the record show that he had previously applied for adjournment. The respondents were of course not given an opportunity to tell whether they would be prejudiced by the application for adjournment and on our part, we see none. At worst, the only inconvenience they would have suered is to return to court on another day, and the expenses to their advocate, which could easily have been mitigated by an award of costs. 20. We wish to echo the words of this court, dierently constituted, in the case of Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR) where the court expressed itself as follows: “ There is no need to restate the importance of a fair trial as guaranteed by the Constitution. The right to a fair trial remains at the heart of any judicial determination and courts should https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1788/eng@2026-09-25 5

page 5 of 7

endeavor to protect and uphold the same. It is a cardinal rule and it emanates from the principle of natural justice. In M K v M W M & another [2015] eKLR it was reiterated that; “ The courts of this land have been consistent on the importance of observing the rules of natural justice and in particular hearing a person who is likely to be adversely aected by a decision before the decision is made. In Onyango v. Attorney General (1986-1989) EA 456, Nyarangi, JA asserted at page 459: “ I would say that the principle of natural justice applies where ordinary people who would reasonably expect those making decisions which will aect others to act fairly.” At page 460 the learned Judge added: “ A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated, it matters not that the same decision would have been arrived at.” And in Mbaki & Others v. Macharia & Another (2005) 2 EA 206, at page 210, this Court stated as follows: “ The right to be heard is a valued right. It would oend all notions of justice if the rights of a party were to be prejudiced or aected without the party being aorded an opportunity to be heard.” 21. We are in agreement with the above statement to the extent that a wrongful denial of an adjournment may well amount to a denial for an opportunity to be heard. 22. Overall, we are of opinion that the learned judge, given the circumstances of the case, did not properly exercise his discretion in declining the application for adjournment made by the appellant. Taking into account all relevant factors, we are of the considered view that the refusal to grant an adjournment by the judge constituted an erroneous exercise of discretion on account of failure to consider matters that the court ought to have considered and we are therefore entitled to interfere with the decision within the principles in United India Insurance Co. Ltd vs East African Underwriters (Kenya) Ltd (above). The appeal therefore succeeds to that extent. We set aside the judgment of the ELC delivered on 21st February 2019. 23. Having come to that conclusion, it is not necessary for us to canvass the other grounds of appeal. 24. In accordance with the powers of the Court under Rule 33(b) of the Court of Appeal Rules, we remit the case back to the Environment and Land Court, before a judge other than Angima J, for disposal. It will be upon the trial court to determine, upon hearing the parties, whether to start the case de novo or continue from where it had reached. Considering that this is a very old case we direct that the matter be mentioned before the Presiding Judge, ELC Embu, within 30 days of delivery of this judgment for purposes of giving directions for the expeditious disposal, on priority basis, of the matter. 25. There will be no orders as to the costs of this appeal given the relationship of the parties. 26. Orders accordingly. DATED AND DELIVERED AT MERU THIS 25TH DAY OF SEPTEMBER, 2026 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1788/eng@2026-09-25 6

page 6 of 7

S. GATEMBU KAIRU (P) (FCIArb) (C.Arb) ................. JUDGE OF APPEAL H. I. ONG’UDI ................. JUDGE OF APPEAL MUNYAO SILA ................. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1788/eng@2026-09-25 7

page 7 of 7