REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
ELCA NO E027 OF 2025
(Formerly Nyahururu ELCLC E012/24)
PATRICK MBUGUA MBUTHIA..........................APPELLANT
VERSUS
MIRIAM NJAMBI MWAI.................................1ST RESPONDENT
KENYA ELECTRICITY TRANSMISSION CO LTD...2ND RESPONDENT
JUDGMENT:
The Applicant filed an Appeal dated 19/3/2025 arising from the Ruling of the Chief Magistrate Court, Nyahururu in MCELC No. 222 of 2015 dated 13/3/2024 on the following grounds:
1. THAT the trial Court erred in law and fact by finding that the Appellant’s Advocates, Mwiti & Partners Advocates, LLP, were not properly on record even with evidence of the Appellant having filed a consent with the former Advocates on record to act in person in compliance with Order 9 Rule 9 of the Civil Procedure Rules and the firm of Mwiti & Partners Advocates, LLP having subsequently filed and served a Notice of Appointment to regularize the court Record.
2. THAT the trial Court erred in law and fact by finding the Appellant’s Application was not properly before the Court and that it was irregularly filed based on the issue of representation despite the fact that the issue was never raised by any party to the Application at any stage and was only brought up by the 1st Respondent in their submissions, which are not pleadings or tools of evidence.
3. THAT the trial Court framed an issue based on the question of representation after “close of pleadings” and determined it without giving the Appellant an opportunity to ventilate it thereby denying the Appellant in particular the constitutionally protected right to a fair trial.
4. THAT the trial court determined an Application in defiance and disregard of Article 159 (2) (d) by elevating procedural technicalities above substantive justice in effect violating Article 50, 40 and 159 (2) (d) of the Kenyan Constitution.
5. THAT the trial Court erred in law and fact in depriving a registered owner of land of his lawfully acquired property without according him the right to be heard in a suit he had filed to protect his proprietary interest in land against the 1st Respondent who had illegally encroached on the suit property in effect violating his rights under Article 40 of the Constitution.
6. THAT the trial Court erred in law and fact by finding that the Appellant’s natural justice right to be heard and to confront “squatters in his land” would not be infringed upon by an order that allowed the Defendants in the trial court to out rightly own land registered in the name of the Appellant without according a fair hearing to properly determine who had a rightful claim to the suit land.
7. THAT the trial Court erred in law and fact by finding that the Appellant had failed to prosecute his own case for over ten years and holding that the failure to have the matter determined in time vitiated/limited/derogated his right to a fair hearing and a fair trial under Article 25 (c) and 50 of the Constitution.
8. THAT the trial Court erred in law and fact by finding that the 1st Respondent would suffer prejudice owing to her advanced age if litigation did not come to an end in effect elevating the human rights of the Respondent above those of the Appellant who has been diligently pursuing the matter for the last two years to rectify the defects occasioned by his former Advocate thereby occasioning discrimination against the Appellant based on his age.
9. THAT the trial Court erred in law and fact by making the following prejudicial findings of fact without the benefit of representation from the Appellant and thereby occasioning a miscarriage of justice:
a. That the Appellant had no interest in the suit despite the fact that he has been pursuing the matter since judgment was delivered in January 2023 without his knowledge;
b. That he had only hired his former Advocates Muchangi Patrick & Associates Advocates for the sole purpose of defending a previous contempt of court charge with no intention of instructing them to conduct the hearing of the main suit;
c. That the Appellant did not instruct his previous Advocates Muchangi Patrick & Associates Advocates to conduct the hearing of the main suit in the trial court.
d. That the Appellant did not visit the chambers of his former Advocates Muchangi Patrick & Associates Advocates or contact them over the status of the suit, yet it is not clear what submissions led to this conclusion.
10. THAT the trial Court erred in law and fact by speculatively making prejudicial findings and conclusions against the weight of evidence and without the benefit of any facts tendered by the Appellant and the Respondents’ conversation
11. THAT the trial Court erred in law and fact by finding that the Appellant would not suffer any prejudice if he lost his lawfully acquired property because he deserved the consequences of the failure of his former Advocates Muchangi Patrick & Associates Advocates to appear in the trial Court.
12. THAT the Trial Court erred in law and fact and sitting as an Advocates’ Disciplinary Tribunal and absolving the proprietor of Muchangi Patrick & Associates Advocates of all professional misconduct allegations of failure to communicate with his client, the Appellant, without any jurisdiction to do so and without having the proper facts to make such a determination.
13. THAT the trial court made an acknowledgement that the onset of Covid-19 had led to the collapse of the hearing of the main suit and then went ahead to cause a miscarriage of justice by making a determination that effectively deprives the Appellant of his lawfully acquired property without any remedy since he had originated the suit to remove the 1st Respondent from the suit property.
14. THAT the trial Court erred in law and fact by finding that the Appellant had come to Court with unclean hands and was not deserving of any remedies based on the maxim of equity, yet the Application that was in issue related to the reinstatement of a suit and cross-examination of the Respondents’ witnesses, which are not equitable remedies but constitutionally protected rights to a fair hearing.
15. THAT the trial Court erred in law and fact by dismissing the Appellant’s Application dated 14th September 2023 with costs to the 1st Respondent, thereby compounding them to double jeopardy of losing the lawfully acquired suit property and paying the 1st Respondent who had encroached on the property and will now outrightly own it with the Appellant having been denied the right to be heard in court.
16. THAT the Trial Court erred in law and fact by making a determination that the Appellant was not deserving of a stay of execution order having failed to deposit security for costs, yet it is not clear what security for costs should have been deposited in the first place and this would only have been done upon the issuance of a condition by the court on what should have been deposited to secure the said orders.
17. THAT the trial Court predisposed itself to a predetermined outcome and made findings of facts not supported by facts to deprive the Appellant his property.
18. THAT the trial Court erred in law and fact by disregarding the Appellant’s Affidavits and submissions in support of the Application and crediting with all probative value those filed by the Respondents without any clear justification thereby occasioning a miscarriage of justice.
He prayed for the following orders: -
a. The Appeal herein be allowed.
b. The Honourable Court be pleased to set aside the Ruling of the Magistrate’s Court in MCELC No. 222 of 2018 delivered on March 13, 2025 and in lieu thereof make the following orders:
i. The Honourable Court be pleased to set aside the orders dismissing the Plaintiff’s Plaint in MCELC NO. 222 OF 2018 Patrick Mbugua Mbuthia v Miriam Njambi Mwai & Another, and the same be reinstated for hearing of the Plaintiff’s witnesses for determination on merit.
ii. The Honourable Court be pleased to reopen the Defendants’ case in MCELC NO. 2022 OF 2018 Patrick Mbugua Mbuthia v Miriam Njambi Mwai & Another and issue an order for the recall and cross examination of the Defendants’ witnesses DWI, DW2, DW3, DW4 and DW5.
iii. The Honourable Court be pleased to issue an order of stay of execution of the orders dated 10th August, 2023 and the Decree and Judgment of the Court dated 12th January, 2023 in MCELC NO. 2022 OF 2018 Patrick Mbugua Mbuthia v Miriam Njambi Mwai & Another pending the hearing and determination of the suit.
c. The costs of this Appeal be awarded to the Appellant.
d. Any other relief and/or order that this Honourable Court may deem fit to grant.
The Ruling by the Honourable Mary Njuguna C.M was as a result of an Application dated 14/9/2023 that sought for:-
1. Spent.
2. Order of stay of execution against the Orders dated 10th August, 2023, and the Decree and Judgment of the Court dated 12th January, 2023.
3. An order for recall and cross-examination of the Defendants’ witnesses DW1, DW2, DW3, DW4 and DW5.
4. Set aside the Orders dismissing the Plaintiff’s suit and the same be reinstated for hearing of the Plaintiff’s witnesses for determination on merit.
5. Costs of the Application to be provided for.
On the ground that the Learned Trial Magistrate disallowed the Application for non-compliance with Order 9 Rules 9 & 10 of the Civil procedure Rules, I find that the non-compliance of these Orders did not go to the root of the Application before the Court became as Justice Mutungi said held in Ngitembe Hudson Nyambura
“……………………….The idea/objective behind amending the Civil Procedure Rules to provide that where Judgment had been entered any change of Advocates was to be with the leave of the Court was essentially for the protection of the Advocates to safeguard their fees from their clients. The amendment was aimed at preventing mischief where after an Advocate worked tirelessly for a client up to obtaining a Judgment, the Advocate is not debriefed by merely another Advocate filing a Notice to act in person so that execution of the Decree is by another Advocate who did not participate in the trial and/or by the client directly with the object of denying the Advocate his fees or costs. Although I agree with the learned Magistrate that there was an inordinate delay in bringing this Application challenging the Notice of change of Advocate without leave, my view is that no leave was required as at the time and that even if it was required I would nevertheless not have been persuaded to annul the subsequent and consequential orders from the date the Notice of change was filed. The Appellant suffered no prejudice at all by reason of such change of Advocates. The Appellant participated and/or was not prevented from participating in the proceedings and there was no miscarriage of justice. The Court is enjoined under Sections 1A and 1B of the Civil Procedure Act, Sections 3 (1) and 19 (1) of the Environment and Land Court Act and Article 159 2 (d) to administer justice expeditiously and justly and without undue regard to technicalities of procedure and it is my view that this is such a case where the Court would have been entitled to disregard the strict rules of procedure in order to do substantive justice…………………… In my view, the essence of Order 9 Rule 9 CPR is to protect Advocates from mischievous clients who will wait until a Judgment has been delivered and then sack the Advocate and either replace him with another Advocate or act in person. The provision is therefore an important one and cannot be wished away. Indeed Order 9 does not foresee how Rule 9 can be sidestepped hence the enactment of Rule 10 which provides as follows:
Non-compliance with the Rule is not fatal.
On the issue of failing to appear in Court for hearing, I agree with the Learned Trial Magistrate that failing to appear for a record 10 times with his Advocate having been served with the Hearing Notice is inexcusable and it is clear that the Appellant was failing to turn up in Court due to the fear of arrest for contempt of Court. I would understand the frustration of his Advocates. This is because in all the above 11 instances, the Court did not dismiss his case. The Appellant then opted to act in person temporarily and later employed yet another Advocate and I agree with the Learned Trial Magistrate that this was evidence of Counsel who no longer had instructions to act for a litigant. I even feel that the Learned Trial Magistrate was over-lenient on the Appellant. This kind of patience is not common. And to prove that the Advocate lacked instructions to act, an Application by Patrick Muchangi & Co Advocates was filed on 15/9/2021 for leave to cease acting for him for “……..want of instructions”. I also agree with the said Court that failure by the Appellant to turn up in his Advocate’s Office for instructions is indolence to the said counsel. Not forgetting that the Court had almost dismissed the suit for want of prosecution in 2019.
I feel that the Appellants’ contention that the sins of his counsel should not be visited on him is misuse of terms. Is it that all the Advocates on record representing him had sins as red as scarlet and that he was as white as snow. Certainly not. All his Advocates were very frustrated and my feeling is that it is so difficult to represent such a litigant as the Appellant.
I am equally not persuaded that any discretion should have been applied in favour of the Appellant. For how long should the Respondents have waited for the Appellant to conclude his case. Justice is a two-edged sword. It cuts on both sides and I believe the side of the Appellant was all along blunt since it should have cut several years before the 13/3/2025.
The Appellant was the author of his own misfortunes. The Respondents also have a right not to be drugged and pegged to the Court forever. I commend the Trial Magistrate for her appreciation that the 1st Respondent being over 90 years old and having been in Court for over 12 years should not be slapped with a further tenancy and lease in Court, not even of an extra day.
The upshot of this is that I am unable to interfere with such a well-reasoned Ruling by Honourable Mary Njuguna. Instead I order that the costs of this Appeal which for the avoidance of doubt is hereby dismissed be paid by the Appellant to the Respondents.
Judgment read and delivered in Nyandarua this 28th Day of May 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson.
Ms. Kerubo for the Appellant.
Ms. Mugi for the Respondent.
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