8.Counsel for the Appellant submitted and denied the contents of the Plaint and claimed that the Appellant had recorded a further statement dated 16th October 2020 admitting that Land Parcel Yatta/Ilika/568 is registered in the Respondent’s name but as the daughter in law and the entire family of Mungami Isika Mutiana owns and possesses Land Parcel Yatta/Ilika/567 which actually shares a common boundary with the Respondent’s Parcel 568. She had further stated therein that on January 2019 she reported to the area chief that the Respondent had encroached onto their land Land Parcel Yatta/Ilika/567 and the chief advised that a surveyor be involved in boundary verification which was settled by Kitui County surveyors on 13th March 2019.
9.The Appellant noted that the Respondent had issued a demand letter dated 7th June 2019 that recognized Land Parcel Yatta/Ilika/567 as registered in the Appellant’s father in law’s name Muungami Isika Mutiana. The Appellant also acknowledged that she did not attend Court for the hearing on 20th May 2021 but had expressed interest in pursuing the case by previously attending all court sessions.
10.It is the Appellant’s contention that the trial magistrate was wrong to allow the case to proceed ex parte without her participation, seeing that she only failed to attend the hearing but had attended all other previous court sessions. It is her submission that land matters are sensitive in nature and the court ought to have exercised discretion and granted an adjournment.
11.Relying on Sections 1A, 1B and 3A of the Civil Procedure Act on the overriding objective and inherent power of the court as well as the holding in the case of Wachira Karani v Bildad Wachira (2016) eKLR, the Appellant submitted that the fundamental duty of the court is to do justice between the parties.
12.Secondly, the Appellant submitted that a party can only prove ownership of land by documentation such as a Title Deed or a copy of search records or an Agreement for purchase but that the Respondent did not produce the copy of title and only stated in his list of documents that he had attached a certificate of search. She also noted the discrepancy on the Plaint referring to two different parcels of land, land parcel Yatta/Ilika/568 and land parcel Yatta/Ilika/562, wondering which parcel that the Appellant was said to have trespassed on.
13.It is the Appellant’s conclusion that the Respondent did not produce any document to support the fact that he is the registered proprietor of the suit property, contrary to Section 107 of the Evidence Act CAP 80. Counsel stated that there are no records for Land Parcel Yatta/Ilika/568 in the Kitui Land registry as the land is in dispute and the appeal to the minister was launched by the relevant parties.
Analysis and Determination
17.The first issue that must be addressed is the Respondents claim that the appeal was filed out of time contrary to Section 79G of the Civil Procedure Act since the judgment of the Court was delivered on 21st January 2022 while the appeal was filed on 21st February 2022, 32 days from the date of the judgment, out of time and without leave of the court.
18.The Court dealt with the issue of time bar and found that the appeal was filed within the required time when the court made the ruling dated 11th October 2022 when dealing with the application for stay of execution dated 9th March 2022 and stated;
19.On the substantive merits of the appeal the court is alive to the role of an appellate court as has been stated in various cases and in particular the case of Gitobu Imanyara & 2 others v Attorney General  e KLR, where the Court of Appeal stated that;
20.In the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates  e KLR relied upon the Appellant, the same was stated with regard to the duty of the first appellate court:
21.The Court has considered the grounds of appeal as set out in the Memorandum of Appeal, the written submissions by Counsel for the parties and the authorities cited. The grounds of appeal in the courts view can be summarized as hereunder; ground 1-7,15, 16, 17, dealt together;I.Whether the trial court erred in proceeding with hearing the suit ex parte without hearing the defendant in her defence and considering the documents filed.Grounds of appeal 8-14, 18, 19 dealt togetherII.Whether the Plaintiffs suit had merit and whether he was entitled to the orders granted
22.The first set of grounds of appeal raise the question of whether the trial court erred in proceeding with hearing the suit ex parte without hearing the defendant in her defence and considering the documents filed. The hearing before the trial court proceeded in the absence of the Appellant, who feels that she was denied a fair hearing. The proceedings filed in court show that the suit was heard on 20th May 2021. The said date was taken in court before the Hon. Mbungi CM on 11th February, 2021, with the consent of both advocates for the parties as the proceedings indicate; Mr. Mutisya holding brief for Kalili for the Defendant and Seth Atonga for the Plaintiff. It is the Appellant’s contention that the Court should have adjourned the case because she had shown interest in pursuing the case by attending all other previous court sessions. However, it is noted that the Appellant did not attend court and neither did her advocate attend to seek an adjournment. The court had no reason to adjourn without being moved by any of the parties since the defendant was obviously aware of the same.
23.The consequences of a party failing to attend court when a suit is set for hearing are set out in Order 12 of the Civil Procedure Rules, 2010. Rule 2 thereof stipulates that:
24.Since counsel for the Appellant was already notified of the hearing date in court, there was no need for service of a hearing notice and the Trial Court acted within the rules by proceeding ex parte. Counsel did not attend court to give reasonS why the defendant was unable to attend. Further, the Defendant had the opportunity to make an application to set aside the judgement entered ex parte by making an application under Order 12, rule 7. of the Civil Procedure Rules which provides that;
25.The Appellant failed to make the said application where she would have had an opportunity to explain the reasons for non-attendance at the hearing of the suit. For the above reasons grounds of appeal No. 1 – 7, 15, 16 and 17 fail.
26.The Appellant contended that this was a land matter and that proceedings relating to the Environment and land Court are of a different and sensitive nature as compared to ordinary civil proceedings. Counsel relied on the case of Apollo Muinde & 2 others v Ernest Oyaya Okemba  eKLR where it was held as follows:
27.In the courts view the above authority does not apply to the circumstances of this suit since the Defendant had already entered appearance and filed a defence and the issue of interlocutory judgement and formal proof do not apply.
28.The remaining grounds of appeal raise the question Whether the Plaintiffs suit had merit and whether he was entitled to the orders granted. When the Plaintiff proceeded ex parte he gave evidence and stated that he was producing in evidence the documents filed in court as exhibit 1-3. In order to determine which documents were tendered in evidence the court looked at the Plaintiffs list of documents filed in court dated 9th September 2019 and noted that the documents listed include a certificate of search but the list did not indicate the parcel of land the search relates to. The record of appeal does not contain a certificate of official search and neither does the original court file.
29.It is further noted that the trial court stated that the Plaintiff had produced a certificate of official search showing that he is the absolete registered owner of all the suit parcel of land. However, the said search was actually not on record. There is further a discrepancy in the Plaint where it refers to the suit property as Yatta/Ilika/562 at paragraph 4 but refers to the suit property as Yatta/Ilika/568 in the prayers. This discrepancy would have been cured by the presence of the search certificate of copy of title deed.
30.It is the courts view that failure by the Plaintiff to produce in evidence either the title deed to the suit land or an official search was an error that vitiates the findings and judgement of the court. Further, failure by the trial court to note that though the Plaintiff stated that he had produced in evidence the documents contained in the list of documents filed in court, and dated 9th September 2019 the said search document was not attached to the list of documents and was not on the court record.
31.In the Courts view, the fact that the evidence adduced by the Plaintiff was not challenged did not entirely mean that the Court was not obliged to interrogate the evidence tendered. The court still had an obligation to interrogate the Plaintiff’s evidence and determine whether the same was merited to enable the court come up with logical conclusion as exparte evidence was not automatic proof of his case to the required standard. The Plaintiff has to discharge the burden of proof. See the case of Kenya Power & Lighting Company Limited… Vs…Nathan Karanja Gachoka & another  eKLR, the Court which stated:-
32.Further the case of Gichinga Kibutha…Vs…Caroline Nduku (2018) eKLR, the Court held that: -
33.Having failed to prove to the required standard that the Respondent was the registered owner of the suit land, it is the courts finding that the Plaintiff did not prove that he was entitled to the rights of a proprietor of land as provided under section 25 of the Land Registration Act which provides;
34.Section 26 of the Land Registration Act further shows the importance of production of a certificate of title as prima facie evidence of ownership of registered land and states that;
35.It is thus the courts view that the Plaintiff did not prove ownership of the suit land and he was thus not entitled to the orders issued by the trial court. The trial court thus erred in entering judgement in his favour.
36.The final order of the court is that the appeal herein has merit and the following orders made;A.The Appeal herein is allowed;B.The judgement and decree arising from the Chief Magistrates Court at Kitui in CMCC No. 74 of 2019, Mutia Masila Musonga vs Aurelia Munyiva Willy is hereby set aside.C.Costs of the appeal are awarded to the Appellant.