Board of Management (Governors) Workers High School v Warui & 3 others (Environment and Land Appeal E037 of 2022) [2026] KEELC 4145 (KLR)

2. Aggrieved by the said decision, the Appellant filed a Memorandum of Appeal dated 8 th November, 2022 appealing against the said ruling on the following grounds: 1. THAT the Learned Honorable Magistrate erred in Law and Fact in refusing to set aside the ex parte proceedings and the consequent judgment dated the 11th March 2022 despite sufficient material and cause show being shown why the appellant did not attend court on the material date denying and defeating the appellant's Constitutional right to be heard. 2. THAT the Learned Magistrate erred in Law in failing to appreciate exercise and of apply the discretion to principles set growing aside the ex-parte proceedings and judgment thereby erroneously giving mechanistic and restrictive approach and consideration to the appellant’s application. 3. THAT the Learned Magistrate erred in law in failing to consider and appreciate the nature of the claim from the pleadings of the subject suit and importantly the ELCA E037 OF 2022 2

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fact that the matter involved a claim over what was and is a prima facie vital public property held and used by a Public School therefore had public interest dimension that merited and deserved more deliberate and as much as possible inter-parties determination and protection unlike a normal purely private property tussle. 4. THAT the learned magistrate erred in law in failing to appreciate that the suit in so far as the appellant was concerned was ex facie incompetent and that the appellant was non-suited and incompetently sued and should therefore have readily set aside the judgment when invited to. 5. THAT the Learned Magistrate erred in law in failing to accept the genuine and plausible explanation proffered by the appellant that its failure to attend proceedings on the material date was a result of inadvertently mistake of counsel which could have been addressed by award of costs even substantial instead of depriving ELCA E037 OF 2022 3

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the appellant of the opportunity to adduce evidence to defend its proprietary rights over parcel of land which was being used by its students. 6. THAT the ruling violated the appellant constitutional right to property, due process and the right to be heard an impartial arbiter. 7. THAT the Learned deliberately appellant Magistrate imposing advocate to a erred in law in mythical burden on the exercise exceptional care therefore punished the appellant for failure by the advocate to meet the court's own formulation of the advocate’s duty of care not know to law and principle. 8. THAT the ruling is mistaken, unsound, against public policy and is untenable. 3. The Appellants seek orders setting aside the ruling and an order allowing the Appellant’s application dated 21 st July, 2022. BRIEF FACTS 4. The Appellant filed an application dated 21 st July, 2022 where it sought for stay and restraining orders against the Respondents ELCA E037 OF 2022 4

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from implementing the judgment and consequential orders made on 11th March, 2022. 5. It was the Appellant’s case that an ex parte judgment had been entered against it Kshs. 300,000 general damages for trespass. 6. It was its case that there was need to set aside the ex parte judgment as it was keen to prosecute its defence. 7. The Respondents on the other hand contend that the judgment as delivered was regular since parties fixed the hearing date by consent but the Appellant failed to attend. 8. The matter proceeded for hearing and subsequently the trial court delivered its judgment on 11 th March, 2022. The trial magistrate found that the hearing date was taken by consent of both parties. 9. It was the trial court’s finding that the fact that the counsel involved mis diarized the matter was not sufficient reason for non-attendance of court. The court proceeded to dismiss the application with costs to the Respondent. 10. The Appellants’ being dissatisfied with the ruling lodged the instant appeal before this court. ELCA E037 OF 2022 5

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11. This court on 17th February, 2026 admitted the appeal for hearing and the same was canvassed by way of written submissions. THE APPELLANT’S SUBMISSIONS 12. The record showed that the Appellants had not filed their submissions to the appeal. THE 1ST RESPONDENT’S SUBMISSIONS 13. Counsel for the 1st Respondent filed her submissions dated 8 th May, 2026 where she submitted that the allegation by the Appellant that their counsel had mis-diarized the hearing date was not substantiated. 14. It was her submission that the Appellant's counsel claimed to be unaware of the judgment, yet another colleague took the judgment on her behalf on 11th March, 2022. She went on to submit that the Appellant waited until 21st July, 2022 only to react after a notice of attachment was served and goods were proclaimed for execution. ELCA E037 OF 2022 6

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15. She relied on the case of Philip Kiptoo Chemwolo & Another V Augustine Kubende [1982-88] KLR 103, Kimani V MC Connell (1966) EA 547 and Patel V E.A. Cargo Handling Services Ltd. EA 75 (Sheridan J). 16. She went on to submit that the Respondents were the registered owner of the suit premises with a legitimate title issued on 29th July, 1993. She added that thee Appellant has provided no evidence of allocation or title to challenge this. She cited the case of Patriotic Guards Ltd V James Kipchirchir Sambu (2018) KLR. 17. Counsel argued that the present case has been in court since 2013 when it had been filed in the high court and late transferred to the subordinate court. She added that no good reason had been advanced by the Appellant to show why the Appellant never appeared during the hearing. 18. She submitted that the Appellant was aware of the judgment and therefore the application set aside the judgment cannot hold. 19. In conclusion, she urged the court to dismiss the appeal with costs. ELCA E037 OF 2022 7

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ANALYSIS AND DETERMINATION I have considered to the Appeal herein including the Memorandum of Appeal and Record of Appeal, and written submissions .The sole issue for determination is whether the appeal is merited. 20. Being a first appeal, the court relies on a number of principles as set out in Selle and another V Associated Motor Boat Company Ltd and others [1968] 1 EA 123: “…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses this respect. In and should particular make this due court allowance is not in bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...” 21. Further as was held in the case of Mwangi V Wambugu [1984] KLR 453 that an appellate court will not normally interfere with a ELCA E037 OF 2022 8

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finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence. 22. I have gone through the record of appeal and it was the Appellant’s case that the learned trial magistrate erred in law and fact in failing to set aside the ex-parte judgment. 23. The Appellant claims that the suit parcel involved public property used by the school thus had a public interest dimension that required inter-parties’ determination. 24. It further claimed that the learned trial magistrate failed to accept the plausible explanation by the Appellant for its failure to attend court which was an inadvertent mistake by its counsel. 25. It was its claim that the same could have been addressed by costs instead of depriving it a chance to adduce evidence. 26. The 1st Respondent on the other hand contends that the explanation by the Appellant that its counsel had mis diarized the date of hearing remained unsubstantiated. ELCA E037 OF 2022 9

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27. He argued that the judgment was regular and that the date was issued by consent of both parties. 28. Order 12 Rule 7 of the Civil Procedure Rules provides that: "Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just." 29. In the case of Attorney General V Small Wonder Ltd [2015] KECA 122 (KLR) the court held as follows: “The principles applicable to the setting aside of default judgments are settled. If the judgment is a regular one the court’s discretion is to be exercised in order to do justice between the parties: Patel –v- EA Cargo Handling Services Ltd. [1974] EA 75. In weighing the interests of justice the court has to consider, among other things, the reasons, if any why the particular default was committed, the conduct of the parties and in particular such conduct as has a bearing on the course of justice in the case: Shah -v- Mbogo [1967] EA 116 and Pithon Waweru Maina ELCA E037 OF 2022 10

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-v- Thuku Mugira [1988] KAR 171; Whether the respondent can be compensated by costs for any delay that may be occasioned by the setting aside of the judgment, and of course it should always be borne in mind that to deny a party a hearing should be the very last resort of a court of justice: Sebei District Administration -V- Gasyali1968] EA 300. Where there is no proper or any service of a hearing notice, the resulting proceedings including the default judgment are irregular and the court must set them aside ex debito justiciae (as a matter of right) on application by the affected party. Such proceedings and judgment are not set aside in exercise of discretion but as a matter of judicial duty in order to uphold the integrity of judicial process itself.” 30. This court has perused the court record and it is not in dispute that when the matter came up for hearing for the first time both parties were present. ELCA E037 OF 2022 11

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31. It was due to the court’s limited time that the same could not proceed prompting the court to give another hearing date. It is on this day that the Appellant’s counsel did not attend for the reason that they had mis-diarized the date. 32. It is not in dispute that the Appellant entered appearance and has been active since the matter commenced. I am of the view that the Appellant showed that it was interested in defending their matter until the mistake of its counsel’s non-attendance during hearing. 33. In the case of Philip Chemwolo & Another V Augustina Kubede (1982-88) KAR 103 the court held that: “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. ELCA E037 OF 2022 The court as is often said 12

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exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline”. 34. This court is however alive to the fact that the dispute in the instant suit relates to land and land being a highly emotive subject, it is therefore important that the dispute in the suit is disposed on merits. 35. Moreover, it is my opinion that it would only be in the interest of justice that the matter be heard on merit so as to settle the issue of whether or not the suit parcel constituted public land or not. 36. In conclusion I find merit in the appeal. 37. The exparte judgment is hereby set aside. The matter do proceed before another Magistrate other than K. I Orege ( PM). 38. The costs do abide the outcome of the suit in the Lower Court. Judgment dated, signed and delivered virtually at Nakuru this 2nd day of July 2026. L KOMINGOI JUDGE ELCA E037 OF 2022 13

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IN PRESENCE OF :Mr Kisilah for the Appellant Ms. N. Njoroge for the 1st Respondent No appearance for the 2nd, 3rd Respondents Court Assistant: Irene/Derrick ELCA E037 OF 2022 14

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