Odero Mariko alias Odoyo & 2 Others v Paulvet Okeyo Odoyo

said ruling, the learned Trial Magistrate dismissed the Appellants' Notice of Motion dated 22nd June 2022, which had sought to set aside an ex-parte judgment entered in favor of the Respondent. II. BACKGROUND 3. The Respondent instituted ELC Case No. E-10 of 2021 at the Mbita Senior Resident Magistrate's Court via a Plaint dated 7th April 2021 against the Appellants (Defendants in the lower court). The Respondent sought: i. Special damages amounting to Kshs 558,100/=; ii. An order of eviction compelling the Appellants, their agents, and servants to vacate Land Parcel No. Kasgunga/Kamreri/2055; 4. iii. An order of permanent injunction; iv. General damages for trespass; v. Costs of the suit and any other relief. The Respondent filed his witness statement and list of documents alongside the Plaint. The Appellants filed a joint Statement of Defence dated 11th June 2021 and a list of documents. 5. The suit subsequently proceeded ex-parte, resulting in an ex-parte judgment entered in favor of the Respondent. 6. The Appellants subsequently filed a Notice of Motion dated 22nd June 2022 seeking to set aside the ex-parte judgment. Upon hearing the application, the trial court delivered a ruling on 21st September 2022 dismissing the application with costs. Aggrieved by this decision, the Appellants filed the present Appeal. 2|Page HOMA BAY ELC APPEAL E052 OF 2022 – JUDGEMENT

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III. GROUNDS OF APPEAL 7. The Memorandum of Appeal dated and filed on 21st October 2022 sets forth the following main grounds: a) The learned Trial Magistrate erred in law and fact by denying the Appellants their non-negotiable right to a fair hearing under Article 50 of the Constitution of Kenya, 2010. b) The learned Trial Magistrate erred in law and fact by dismissing the Appellants' defence despite it disclosing triable issues. c) The learned Trial Magistrate failed to appreciate that this is an emotive land dispute involving ancestral land, where express intent to be heard ought to have been accommodated. d) The learned Trial Magistrate erred in holding that the Appellants had been served with a hearing notice when there was no proper proof of service. e) The learned Trial Magistrate erred in failing to consider that any procedural delay could have been compensated by an award of throwaway costs rather than denying the Appellants a hearing. IV. DUTY OF THE FIRST APPELLATE COURT 8. The duty of a first appellate court is well established in Pandya v. Republic [1957] EA 336 and Peters v. Sunday Post Limited [1958] E.A 424. This court is required to re-evaluate, re-analyze, and reconsider the entire evidence tendered before the trial court on both law and facts, carefully weighing the judgment appealed against to arrive at its own independent findings and conclusions. In doing so, the court keeps in mind that it did not have the opportunity to see or hear the witnesses testify firsthand. 3|Page HOMA BAY ELC APPEAL E052 OF 2022 – JUDGEMENT

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V. REPRESENTATION & SUBMISSIONS 9. By direction of the court, the Appeal was disposed of by way of written submissions. The Appellants were represented by the firm of Quinter Adoyo & Co. Advocates, while the Respondent appeared in person. Appellants' Submissions 10. Counsel for the Appellants submitted that both parties initially appeared without legal representation in the lower court. Counsel argued that the trial court failed to consider the varying levels of legal literacy and exposure among self-represented litigants. 11. On service, the Appellants maintained that they were not served with a hearing notice for the hearing on 14th October 2021. 12. On the substance of the dispute, the Appellants highlighted that the core matter involves land: the Respondent claims title to Kasgunga/Kamreri/2055, whereas the Appellants are heirs of Odira Okello, the registered owner of Kasgunga/Kamreri/2701. 13. The Appellants pointed out contradictory boundary/survey assessments. While a preliminary surveyor’s report by Jorum Ngoje indicated trespass, a subsequent survey conducted during court-annexed mediation by Daniel Andhiro (Homa Bay County Surveyor) revealed that Parcel No. 2701 is in its correct location and that Parcel No. 2055 is located elsewhere. The County Surveyor's report concluded that the parcels do not border each other and that no physical trespass occurred, though map amendments were necessary. 14. The Appellants argued that refusing to re-open the case risks misplacing land boundaries and causing irreparable injustice, which could be 4|Page HOMA BAY ELC APPEAL E052 OF 2022 – JUDGEMENT

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adequately compensated by costs. Counsel relied on Daniel Kabuba Maina v. Mercelline N. Muriithi [2018] KEHC 8357 (KLR). Respondent's Submissions 15. The Respondent contended that the Appeal was filed out of time under Section 79G of the Civil Procedure Act, having been lodged on 24th October 2022 (and formally filed on 28th October 2022) following a ruling delivered on 21st September 2022. He prayed for the Memorandum of Appeal to be struck out. 16. On service, the Respondent submitted that the Appellants were duly served with hearing notices, as evidenced by affidavits of service filed by court process server Edwin Omondi dated 27/5/2021, 20/9/2021, 25/3/2022, and 7/4/2022. 17. The Respondent argued that the Appellants failed to attach a draft amended defence or counterclaim to their setting-aside application, leaving the trial magistrate with no material to determine whether triable issues existed. 18. Regarding ownership, the Respondent submitted that he purchased Kasgunga/Kamreri/2055 from Lukio Owuor, who held peaceful possession from 1970 until transfer in 2015. 19. In supplementary submissions, the Respondent defended the survey report of Jorum Ngoje dated 6th January 2020, asserting that the Mbita Survey Office had proper jurisdiction, whereas the report by Daniel Andhiro was privately commissioned and lacked locus. VI. ISSUES FOR DETERMINATION 20. Having reviewed the record of appeal, pleadings, evidence, and 5|Page HOMA BAY ELC APPEAL E052 OF 2022 – JUDGEMENT

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submissions, the primary issues for determination are: i) Whether the Appeal was filed out of time. ii) Whether there was proper service of the hearing notice prior to the ex-parte trial. iii) Whether the learned Trial Magistrate erred in refusing to set aside the ex-parte judgment and thereby denied the Appellants their right to a fair hearing under Article 50 of the Constitution. VII. ANALYSIS AND DETERMINATION Issue 1: Whether the Appeal was filed out of time 21. The Respondent argued that the appeal was filed past the 30-day statutory window prescribed by Section 79G of the Civil Procedure Act. 22. The record shows that the impugned Ruling refusing to set aside the exparte judgment was delivered on 21st September 2022. The appeal was lodged on 28th October 2022. 23. Under Section 57 of the Limitation of Actions Act (Cap 22) and Order 50 Rules 1, 2, and 3 of the Civil Procedure Rules, the computation of time excludes the first day. Furthermore, where the last day lands on a Sunday or public holiday, time rolls over to the next working day. The month of October contains official public holidays (e.g., Mashujaa Day on 20th October) and weekends. 24. Accounting for the excluded initial date, non-working days, and statutory public holidays during the computation, this court finds that the Appeal was filed within the allowable statutory period. Issue 2: Whether there was service of the hearing notice 6|Page HOMA BAY ELC APPEAL E052 OF 2022 – JUDGEMENT

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25. The record contains an Affidavit of Service sworn by Edwin Omondi Otieno, a licensed process server, confirming service of the hearing notice on the Appellants on 19th September 2021 for the hearing scheduled for 14th October 2021. The server deposed that the Appellants acknowledged receipt but declined to sign. 26. The Appellants did not formally challenge or rebut the contents of this Affidavit of Service in the court below. Consequently, the finding of the trial court that service of the hearing notice was affected remains unassailable on the facts. Issue 3: Whether the Trial Magistrate erred in refusing to set aside the ex-parte judgment 27. An ex-parte decree is issued in the absence of a party. While valid and enforceable until set aside, an ex-parte judgment remains voidable. Under Order 51 Rule 15 of the Civil Procedure Rules, the court possesses unfettered judicial discretion to set aside ex-parte orders to prevent injustice or hardship. 28. In declining to set aside the judgment, the learned Trial Magistrate reasoned that the Appellants failed to annex a draft defence, took no proactive steps to forestall judgment, and only approached the court after eviction orders were issued. 29. However, a re-evaluation of the trial court record and the substantive judgment reveal significant material flaws: i) Contradictory Findings on Evidence: In the Plaint and witness statement, the Respondent alleged that trespass and destruction of property occurred on 20th January 2013. Yet, the Trial Magistrate found in the judgment that the damage occurred in 2015—a finding wholly unsupported by the 7|Page HOMA BAY ELC APPEAL E052 OF 2022 – JUDGEMENT

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evidence or pleadings. ii) Failure to Call Expert Witnesses: The Respondent relied on expert documents, including a survey report and a Forester’s report, without calling the authors to testify. Under Section 48 of the Evidence Act (Cap 80), expert opinion is admissible through the expert's testimony. As articulated in Maina Thiongo v. Republic [2017] eKLR, Mutonyi v. Republic [1982] KLR 203, and Davie v. Edinburgh Magistrates [1933] SC 34, expert witnesses must testify to establish their qualifications, inform the court of their methodology, and enable the court to test the accuracy of their opinions. Admitting expert survey reports without calling the surveyors violated Sections 48, 62, and 63 of the Evidence Act, rendering the findings legally fragile. iii)Failure to Prove Elements of Trespass: As stated in Gichinga Kibutha v. Caroline Nduku [2018] eKLR and Charter House Bank Ltd v. Frank N. Kamau [2016] eKLR, an uncontroverted claim does not automatically relieve a plaintiff from discharging the burden of proof. Under Section 3 of the Trespass Act and Municipal Council of Eldoret v. Titus Gatitu Njau [2020] eKLR (citing M’Mukanya v. M’Mbijiwe [1984] KLR 761), trespass is a violation of immediate and exclusive possession. iv)Boundary & Survey Anomalies: The boundary status of the two properties remains fundamentally disputed. Survey assessments—including the report dated 3rd October 2024 by the Land Registrar and County Surveyor during court mediation—demonstrate that Plot Kasgunga/Kamreri/2055 suffers from significant mapping discrepancies relative to the ground layout, whereas Kasgunga/Kamreri/2701 (belonging to Odira Okello's estate) is in its recorded physical position. Both the 2020 report and subsequent surveys confirm that map amendments are required. The trial court awarded 8|Page HOMA BAY ELC APPEAL E052 OF 2022 – JUDGEMENT

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damages for trespass without summoning the surveyor or determining the physical boundaries. v) Unrepresented Litigants and Article 159: At the trial stage, both parties appeared in person. As highlighted in the Ugandan decision Musasizi v. Twinomugisha (Civil Appeal 23 of 2021) [2024] UGHC 154, trial courts bear a responsibility when managing unrepresented litigants to ensure procedural requirements do not obstruct substantive justice. Article 159(2)(e) of the Constitution of Kenya mandates courts to administer substantive justice without undue regard to procedural technicalities. vi)Principles Governing Setting Aside: Article 50(1) of the Constitution guarantees the right to a fair trial. The principle of natural justice—audi alteram partem (hear the other side)—prohibits condemning a party unheard (The Management Committee of Makondo Primary School v. UNEB; Mandeep Chauhan v. Kenyatta National Hospital [2013] eKLR). As held in Mureithi Charles & Another v. Jacob Atina Nyagesuka [2022] KECH 1805 (KLR), Esther Wamaitha Njihia v. Safaricom Ltd [2014] eKLR, and Shah v. Mbogo [1967] EA 116, judicial discretion to set aside an ex-parte order should be exercised flexibly to avoid injustice, provided the applicant did not deliberately act to obstruct justice. 30. Furthermore, in land disputes, courts should avoid entering or enforcing final determinations of ownership and eviction on procedural defaults without full investigation on the merits (Wetaka v. Wabusu [2012] UGHC 67; Branco Arabe Espanol v. Bank of Uganda [1999] 2 EA 22). 31. The lower court record shows that the Appellants maintained a pattern of attendance on multiple court dates (e.g., 17/6/2021, 8/7/2021, 19/08/2021, when other dates were given. It is notable that the Appellant were in Court on 19/8/2021 and indicated they were ready to proceed but unfortunately 9|Page HOMA BAY ELC APPEAL E052 OF 2022 – JUDGEMENT

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the record does not capture the reason for adjournment. It is not known why the file was taken back to the registry and date fixed in the absence of the Appellants. On 9/9/2021 the Respondent appeared in Court and Sought another date so as to serve the Appellants. 32. On 14/10/2021 the matter came for hearing and the Respondent informed the Court that he had served and was ready to proceed. The matter proceeded ex-parte and the Respondent called a Land Committee Member as his witnesses. However, expert witness was called, but crucial documents were produced and judgment was reserved for 11/11/2021. Judgement was delivered on 11/11/2021 and there is no indication that, despite the Appellants’ having been crucial parties to the proceedings a judgement notice was served. From the record there is no indication that directions were given by the Court requiring their attendance. 33. The refusal by the learned Trial Magistrate to set aside the ex-parte judgment deprived the parties of an opportunity to resolve the fundamental land boundary anomalies on merits, resulting in a gross miscarriage of justice. VIII. ORDERS & FINAL DETERMINATION 36. In the premises, this Appeal succeeds. The judgment and order of the court are as follows: 1. The Appeal is hereby ALLOWED. 2. The Ruling and Order of the Senior Resident Magistrate’s Court at Mbita delivered on 21st September 2022 in ELC Case No. E-10 of 2021, together with the resultant ex-parte judgment and execution orders, are hereby SET ASIDE. 3. ELC Case No. E-10 of 2021 is hereby remitted back to the Senior Resident 10 | P a g e HOMA BAY ELC APPEAL E052 OF 2022 – JUDGEMENT

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Magistrate’s Court at Mbita for RE-TRIAL on merits before a Magistrate other than the one who delivered the impugned ruling. 4. The Appellants are granted 14 days from the date hereof to file and serve their formal Amended Statement of Defence and Counterclaim (if any). 5. To compensate the Respondent for procedural delays, the Appellants shall pay throwaway costs of Kshs 30,000/= to the Respondent within 30 days of this Judgment. THE MATTER IS CLOSED Orders accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY AT HOMA BAY ELC THIS 28TH DAY OF SEPTEMBER 2026. JUSTICE J.W WANYONYI - JUDGE ENVIRONMENT & LAND COURT, HOMA BAY IN THE PRESENCE OF: 1. Ngani for Adoyo for the appellant 2. Paulvet Okeyo – Respondent 3. Odero Mariko – Appellant 4. Otieno Mariko – Appellant 5. Gordon Odera – Appellant 6. Mercy - Court Assistant. 11 | P a g e HOMA BAY ELC APPEAL E052 OF 2022 – JUDGEMENT

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