REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
ELCA NO E002 OF 2025
FELISTUS NJOKI NJOROGE.......................APPELLANT.
VERSUS
JOHN NDORANGU MUCHIRI.......................RESPONDENT.
JUDGMENT:
The Respondent herein filed a suit against the Appellant. The same is dated 24/2/2023 where he averred that he was allocated and is the registered owner of NYANDARUA/SABUGO/7206. It was allocated to him on 2/6/2016 by New Gatundu Farmers Co. Ltd vide ballot No. 070 while the Appellant was allocated his at the same time. The Respondent claims to be in possession of the suit land since 2016 but some time mid-February, 2023 the Appellant illegally invaded the suit land and commenced building a temporary structure and dug a pit latrine thus interfering with the Respondent’s right to quiet enjoyment of the property.
The Respondent therefore prayed for Judgment against the Appellant for a permanent injunction restraining the Appellant from entering, trespassing, selling, transferring, alienating, disposing, leasing, evicting and/or in any way adversely interfering with the parcel of land known as NYANDARUA/SABUGO/7206. He also prayed for an eviction Order against the Appellant from the said parcel of land, mesne profits for forcible detainer and the costs of the suit.
The Appellant never filed a Defence though she entered appearance through the firm of Odhiambo Paul Xistus & Co Advocates on 20/3/2023.
On 24/2/2023, the Respondent filed an Application under Certificate of Urgency praying for Orders that the Court restrains the Appellant either by herself, her agents, representatives, servants and/or employees from entering, trespassing, selling, transferring, alienating, disposing, leasing, evicting and/or in any way adversely interfering with the suit land on the ground, as he said, that the Appellant had invaded the suit land and commenced construction of a semi-permanent home therein effectively tampering with the Respondent’s right to quiet and peacefully ownership of the land and therefore the Respondent would suffer irreparable loss and damage if the orders sought were not granted. The same was responded to vide the Appellant’s Replying Affidavit sworn on 20/3/2023 where she deponed that the Respondent had illegally procured the Title Deed to the suit property and that the same was the subject of ELC Case No. 18 of 2019 at Nyahururu and that it is the Respondent who had actually invaded her land and that the process of sub-division by New Gatundu Farmers Co Ltd was in dispute and was still a matter in Court and that there was a Court Order directed to the Company restraining the said company to stop the sub-division. she prayed that the Application be accordingly dismissed.
The Respondent filed a further Affidavit on 18/4/2023 insisting that he is the lawful and registered owner of the suit property.
The Application was allowed on 4/5/2023 by the Honourable R. Yator,
Senior Principal Magistrate. On 7/9/2023 the Court observed that there was an order from the ELC Court staying the proceedings of the lower Court dated 6/9/2023 and the Order of 6/6/2023 and as such the Court stayed the proceedings of the case pending Appeal. The stay was later lifted on 2/5/2024. The Appellant was allowed to file her statements and documents before 27/6/2024. This was on 6/6/2024.
On 17/10/2024, Mr Odhiambo for Appellant asked the Court to treat the latter’s Replying Affidavit, I believe the one sworn on 20/3/2023 and filed on even date to act as her Statement of Defence and the attachments thereof be treated as documents. This was objected to by Ms. Njeri Njagua for the Respondent and the Court agreed with her and ordered that the matter should proceed as undefended.
Judgment was delivered by the Court on 16/1/2025 to the effect that:
“………………I find that the Plaintiff (Respondent) has proved his case against the Defendant (Appellant) on a balance of probabilities and I enter Judgment for the Plaintiff against the Defendant as follows:
(a) A permanent injunction is hereby issued restraining the Defendant (Appellant) from entering, trespassing, selling, transferring, alienating, disposing, leasing, evicting and/or in any way adversely interfering with the parcel of land known as NYANDARUA/SABUGO/7206.
(b) An order is hereby issued to the Defendant (Appellant) to vacate NYANDARUA/SABUGO/7206 within 60 Days from today failure to which the Plaintiff (Respondent) shall be at liberty to evict her from the said parcel of land .
(c) Damages for trespass of Kshs. 200,000/=.
(d) Costs…………………..”
Having been dissatisfied by the said Judgment, the Appellant appealed to this Court on the following Grounds:
1. The learned Trial Magistrate erred by condemning the Defendant unheard by totally locking out the Defendant’s pleadings/documents in strict adherence to Order 11 of the Civil Procedure Rules, 2010 whilst in total disregard to import Article 159(2)(d) of the Constitution of Kenya, which lays emphasis on the fact that justice shall be administered without undue regard to procedural technicalities.
2. The learned Trial Magistrate totally misdirected himself (sic) in the evaluation of evidence produced and arrived at a wrong Decision thereby occasioning a miscarriage of justice.
The Appellant accordingly asked the Court to grant her the following Orders:
(a) The instant Appeal be allowed.
(b) The Judgment of the subordinate Court be set aside and it be substituted with an Order directing the parties to comply with Order 11 of the Civil Procedure Rules, 2010 and subsequent retrial of the lower Court case.
(c) Costs of this Appeal and the lower Court matter be granted to the Appellant.
I asked the parties herein to file their submissions prior to retiring to write this Judgment. I wish to consider whether the Learned Trial Magistrate was justified in locking out the Appellant and disallowing her to adduce evidence. This I will do before analyzing the Evidence to find out whether the Judgment can stand.
Under Order 10 Rule 4 of the Civil Procedure Rules:
(1)Where the plaint makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons or all the defendants fail so to appear, the court shall, on request in Form No. 13 of Appendix A, enter judgment against the defendant or defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit, at such rate as the court thinks reasonable, to the date of the judgment, and costs.
(2) Where the plaint makes a liquidated demand together with some other claim, and the defendant fails, or all the defendants fail, to appear as aforesaid, the Court shall, on request in Form No. 13 of Appendix A, enter judgment for the liquidated demand and interest thereon as provided by sub-rule (1) but the award of costs shall await judgment upon such other claim. 5. Liquidated demand against several defendants
[Order 10, rule 9]
Subject to rule 4, in all suits not otherwise specifically provided for by this Order, where any party served does not appear the plaintiff may set down the suit for hearing.
Default of Defence [Order 10, rule 10]
The provisions of rules 4 to 9 inclusive shall apply with any necessary modification where any defendant has failed to file a Defence.
The Appellant ought not to have been heard without a Defence. As shown above, a Defence is mandatory if a Defendant wishes to join issues and defend the Suit. I do not buy the Appellant’s assertion that since her Replying Affidavit sworn on 20/3/2023 was akin to the disavowal she would have tendered, then it ought to have been treated as one. In a metaphorical sense, the phrase "rules are the handmaids of the laws" signifies that rules, regulations, and procedures exist to facilitate, implement, and support the application of broader, substantive legal principles, the laws. These "handmaids" (rules) ensure the laws are practical, applicable, and functional, rather than just abstract concepts. The phrase suggests that rules do the "work" to make the law functional, similar to how a handmaid serves a higher purpose within a household or hierarchy. They provide the structure and procedures to execute the intent of the law. Rules must remain subservient to the law itself; they cannot contradict or exist without the law. But they cannot be ignored as though they did not exist.”
The Appellant’s argument that the Trial Magistrate erred in law by disregarding Article 159(2)(d) of the Constitution is unfounded. The Article talks of “undue” regard to “procedural” technicalities. To begin with, filing a Defence is not an undue technicality. It is not even a technicality at all. A Defence in a court case is the response, justification, or excuse presented by the Defendant to counter the allegations made by the Plaintiff. It aims to negate liability in civil cases ranging from denial or asserting lawful excuses for actions. It is the Defendant’s argument, evidence, and legal reasoning to show why the Plaintiff's case is unenforceable. It is meant to prevent the opposing party i.e. the Plaintiff from proving the necessary elements of their case or to limit liability. This being the case, how can it be “undue regard to procedural technicalities. How can a trial be conducted by a Defendant in a Civil Suit without a Defence? Failure to file one does not mean that the Learned Trial Magistrate locked her out. The Appellant actually locked herself out. The Learned Trial Magistrate is faultless. But one thing appears to have happened in this case. On 17/10/2024 Counsel for the Appellant is on record as having asked the Court to treat a Replying Affidavit as a Defence. What procedure is this? While it can show the existence of a Defence, a replying affidavit is not a formal Statement of Defence. A Replying Affidavit can only be treated as evidence of a Defence, particularly when defending against summary judgment applications, setting aside default judgments, or demonstrating that there are triable issues. For instance, in summary judgment proceedings (e.g., under Order 36 of the Civil Procedure Rules), the Defendant may use an Affidavit to demonstrate a bona fide Defence, even if a formal statement of Defence has not been filed. A Replying Affidavit is crucial to rebutting allegations in an Application for summary judgment or in a Supporting Affidavit, so that the court can find that the Defence is not frivolous. Likewise, when applying to set aside a default judgment, a Replying Affidavit often provides evidence of a "good Defence" that raises triable issues. But whichever way you look at it, it is not a replica of a Defence.
The Learned Trial Magistrate was therefore perfectly right in proceeding with the matter as one that was undefended.
However, the Court skipped one very fundamental procedure. That of
entering interlocutory judgment. Under Order 7, Rule 1 of the Civil
Procedure Rules:
Where a Defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, file his Defence within fourteen days after he has entered an appearance in the suit and serve it on the Plaintiff within fourteen days from the date of filing the Defence and file an Affidavit of service.
Under Order 10 Rule 10 as read with Order 10 Rule 7 of the Civil Procedure Rules, should a Defendant fail to enter appearance or file Defence the court shall, on request in Form No. 13 of Appendix A, enter interlocutory judgment against the Defendant failing to appear before proceeding to hear the case. The Memorandum of Appearance was filed on behalf of the Appellant on 21/3/2023. Thereafter, the Defendant never filed a Defence and the Court ought to have entered Judgment in default of filing Defence on 4/4/2023 which it failed to do. This should have preceded case management conference 14 days after the entry of interlocutory Judgment. One of the purposes of a case management conference under Order 11 Rule 3 (f) of the Civil Procedure Rules shall be to—
identify the issues for determination.
Without a Defence it would be difficult to identify the issues for determination. Accordingly, this case was not mature for Hearing. Had the pre-trial conference taken place, either a Judgment in default would have been entered or the Defendant would have realized the default and quickly filed Defence. Otherwise, the Suit should not have proceeded to Hearing with this abnormally. This is one of the reasons case management conference was introduced in the 2010 amendment
to the Civil Procedure Rules.
Having made the above observations, under Section 25 of the Civil Procedure Act, the court, after the case has been heard, shall pronounce judgment, and on such judgment a Decree shall follow. What powers is the Appellate Court seized of? Under Section 78 of the Civil Procedure Act,
(1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require the evidence to be taken;
(e) to order a new trial.
The Question that begs answer is, who then is to blame? Once a Defendant receives Summons and hands them over to her Advocate, she does so expecting the said Advocate to use the knowledge of law he possesses to defend the Defendant and cannot be expected to always go back to the client asking whether it is now time to enter appearance or to file a Defence. The Defendant depends on the Advocate to guide the ship and will always go back to the former only for facts. And the fact that the Defendant signed the Replying Affidavit in good time and even provided the necessary documents as attachments for the same shows that this was a very cooperative client. I feel that the mistakes of an Advocate which actually amount to negligence on his part and which cost the Client so much should not be visited on the client. Section 3A of the Civil Procedure Act provides that:
Nothing in this Act shall limit or otherwise affect the inherent
power of the court to make such orders as may be necessary
for the ends of justice or to prevent abuse of the process of the
court.
I will therefore order for a re-trial of the Suit after a Defence has been filed by the Defendant but only for the Defence case to be heard and together with the Evidence on record, a Judgment to be delivered. For this to take place, the Appellant’s Advocates on record, Odhiambo Paul Xistus & Company Advocates shall pay to the Respondent throw away costs of Kshs. 15,000/= within the next 14 Days. This being the case, I will consequently not go to the merit or otherwise of the Judgment of the Honourable Trial Magistrate as the case may come back to me on Appeal after full Hearing and Judgment.
Judgment dated and delivered at Nyandarua this 2nd Day of March 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson.
Appellant………….Mr. Odhiambo.
Respondent………..Ms. Mwaniki.