Issues, Analysis and Determination
21.This Court carefully considered the instant appeal. It also gave due regard to the law, the submissions by both parties, and the case law relied on.
22.This was a first appeal against the decision of the lower court, and as noted above, it resulted from the finding of the Court in an Application. In the trial court the Application proceeded by way of written submissions. It was a decision based on both the discretion and reasoning of the trial Court. Therefore, I am bound to consider whether that the trial magistrate exercised discretion properly, that is to say, whether the Court was judicious, and whether, if it was, the conclusion she arrived at was manifestly wrong.
23.I am alive to the fact that the duty of the Court as an appellate one of the first instance is to evaluate the evidence and arrive at its own conclusion. This was position was given by the Court of Appeal in Gitobu Imanyara & 2 others v Attorney General  e KLR., wherein the Court held that:-
24.Similarly, the case of Peters v Sunday Post Ltd  EA 424, as quoted in the case of Jackson Kaio Kivuva v Penina Wanjiru Muchene  eKLR was of the same view when it held as follows:-
25.Additionally, in Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates  e KLR, the court held that:
26.But in the instant appeal, it is clear that the decision of the Court was not on the evidence of the parties but on a point of law which was about how the Applicant ought to have moved it in a bit to be granted the orders sought. I therefore weigh the arguments on the grounds of appeal as against the provisions of law on the issue of intended evictions as contended by the Appellant, and the exercise of the discretion and reasoning of the trial court.
27.I am also clearly aware that the role of this Court is not to substitute its discretion with that of the lower court but to consider whether it was not clearly erroneous as exercised. In so doing this Court must make its own independent finding and leave the discretion of the lower court intact if it was exercised based on the right principles, and reverse the decision only find if the reasoning was plainly wrong. But if evidence had been tendered by way of a trial, I should have given some allowances in my analysis given that I never heard or saw the witnesses.
28.It has been stated in Supermarine Handling Services Ltd versus Kenya Revenue Authority  eKLR (Civil Appeal 85 of 2006):
29.Also, in Farah Awad Gullet v CMC Motors Group Limited  eKLR the Court of Appeal held that:
30.Additionally, in Edward Sargent versus Chotabha Jhaverbhat Patel  16 EACA 63, it was held that there is no bar to an appeal lying to an Appellate Court against an order made in the exercise of judicial discretion, but for the Appeal Court to interfere it must be clearly shown that the discretion was exercised injudiciously.
31.This point was put forth also in the case of Mbogo and Another v Shah  EA 93 at 96) affirmed the as follows:
32.Having laid the foundation for my duty in determining this appeal, I proceed to consider it based on a sequential consideration of certain grounds together as one since they revolve on the same issue. However, before doing so, as a preliminary point this Court finds that in the Applicant in the trial court, now Respondent, cited some irrelevant provisions of law. Although not fatal to his application, by virtue of Article 159(2)(d) of the Constitution, it was unnecessary to do so. The irrelevant provisions he cited were Sections 1A and 3A of the Civil Procedure Act each of which has its place in the practice of law in civil matters.
33.This Court, while addressing the same issue in Erot v Al-Momin Foundation (Environment and Land Appeal 20 of 2022)  KEELC 17557 (KLR) (25 May 2023) (Judgment) had this to say:-
34.For that reason, and in line with the reasoning of the Court as above, it is clear that an owner or individual in charge of a property intending to evict a person unlawfully occupying it who issues a notice of intention to vacate has no reason to move the Court for validation of the notice. It is clear that by the serving the notice he/she informs the unlawful occupant, “move out or I evict you.” If the occupant disputes the intended eviction he has chance to move the Court before the expiry of the period for the orders contemplated in Section 152F (2) of the Act. Otherwise, why would an owner of land entertain an unlawful occupant on his/her land for three (3) months and still move the Court? He/she would rather issue the usual seven (7) to fourteen (14) days’ demand to sue and proceed with a suit for eviction.
35.I now analyze the third (3) ground which was that the trial magistrate erred in law and fact in failing to consider the submissions and authorities supplied to her hence went against the principle of stare decisis. The Principle of stare decisis is an important tool in the functioning of the Rule of Law particularly in Common Law jurisdictions. It brings in the element of uniformity, certainty and order. While not fettering discretion, it does away with confusion and arbitrariness. It is to the effect the lower courts are bound by decisions of courts superior to them where they relate to the same issue of law supported by similar facts. Thus, in Dodhia v National & Grindlays Bank Limited and Another  EA 195, Duffus V. P. stated that:
36.The Appellant questioned the decision of the trial magistrate for going against the principle explained above. She argued first that the trial magistrate did not consider the submissions on her behalf. This Court finds that indeed submissions dated 18/01/2022 were made by learned counsel on her behalf, and filed on 31/01/2022. In regard to whether or not the Court took the submissions into account, page 2 of the impugned Ruling shows that the trial court noted that the application was canvassed by way of written submissions. It does not state later whether or not the court took the filed submissions into account.
37.As to whether failure to consider submissions is a ground fatal to the Ruling, this Court has to explain the import of submissions in decision processes of courts. Submissions do not constitute pleadings or evidence. They are simply arguments that parties use to market their idea or issue to the Court. They do not take the place of evidence. Failure to consider them is not fatal to a decision. Indeed, it was stated by this Court in Patrick Simiyu Khaemba v Kenya Electricity Transmission & another  eKLR as follows:-
38.Also, the Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another  eKLR stated that:
39.In Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 his Lordship stated as follows:
40.Therefore, it is the considered view of this Court that the failure, if any, on the part of the trial Court to consider the submissions of the Appellant did not render her Ruling defective. Even as I find that, the outstanding issue then is: what about the failure to adhere to the legal authorities that were presented together with the submissions hence the Appellant’s argument that the court erred in neglecting the doctrine of stare decisis? In regard to the main issue in the instant matter, being how to effect the Notice of intended Eviction issued under Section 152E of the Land Act, it is worth noting that courts are divided over which process should be followed in giving effect to such a Notice.
41.Some courts hold that the Notice of intended eviction should be given effect through a suit while others hold that it may be by way of filing a Miscellaneous Application such as the one which finally gave rise to the instant appeal, and each case seems to present its uniqueness and is considered on its own facts. For this, the Court invites the parties herein to look at the decisions of Grace Wangari Mureithi v David Njoroge  eKLR; Margaret Karwirwa Mwongera v. Francis Kofi  eKLR; Ringera v. Muhindi (Environment and Land Miscellaneous Application E128 of 2022 (2022) KEELC 2481 (KLR) (7 July 2022) (Judgment); James Mathuva Makewa v Nzavi Ngului eKLR; Lucy Ghati v Alex Wambura John & another  eKLR; Tatecoh Housing and Coop Sacco Limited v. Qwetu Sacco Limited  eKLR, among others.
42.This being the case, this Court is of the view that the trial magistrate did not err in failing to follow the decisions that were presented to her as authorities and therefore did not neglect the principle of stare decisis. In any event, as is explained elsewhere, under Section 152 F(2) of the Act, it is the recipient of the Court who should move the Court for confirmation, variation or suspension of the notice and an order for compensation. The law is silent on what the proprietor of the land should do when he/she issues the notice of intended eviction and the recipient does not apply to Court over it. This Court takes the view that there is no need for the owner to give the Notice of intended eviction and then move the Court for giving it effect. Rather, he should proceed to effect the notice, with the assistance of the Police, without the need for a Court order. Therefore, this ground of appeal fails.
43.Regarding the first, second and fourth grounds of appeal, this Court of the humble view that they relate to the same point of law, being the interpretation of the procedure applicable in giving effect a Notice of Vacation of land, issued under Sections 152E and 152F of the Act. The appellant contended that the trial magistrate did not invoke the two provisions which in her view were clear that the procedure to be followed in such a case is the filing of a Miscellaneous Application as she did and therefore the finding by the Court that the constitutional right of the defendant to be heard could not be guaranteed in the Application was wrong. In her submissions she reproduced the content of the two provisions of law and contented that the two introduced a procedure which governs evictions of persons deemed to be unlawfully occupying one’s land. In her view “the repercussions of such an eviction notice” of intended eviction “are that” it may now be effected by the (recipients) “persons being evicted in absence of a formal court order” [emphasis, appellant’s]. He relied on the decision of Atik Mohammed Omar Atik & 3 others v. Joseph Katama & another  eKLR. The Respondent contended that that is not the position in law.
44.This Court agrees with the Appellant on the understanding of the law that indeed under the new land regime, Sections 152E and 152F of the Act, persons served with the intended notice of eviction may now be evicted without a formal order of the Court. What that means is that there was no need for the Appellant to move the Court by whichever form, be it a Miscellaneous Application or a Plaint, as long as she duly served the notice and it was not challenged by the recipient. It is vital for the owners of parcels of land to understand and follow the law. It serves as duplication of efforts, and unnecessarily clogging the court system, to serve a notice of intended eviction on a person unlawfully occupying one’s land and after the expiry of the notice thereof without the recipient moving the Court as the required under Section 152F of the Act, for the owner of the land to again move the Court for orders of eviction. The last line of Section 152E(1) of the Act is clear, “… the owner or person in charge may serve on that person a notice, of not less than three months before the date of the intended eviction” [emphasis mine].
45.In simple terms, the import of the provision is that the owner of the land or the person he/she has put in charge thereof notifies that person unlawfully occupying it as follows, “after the end of three months, I will evict you from this land. In case you dispute the intended step, apply to court so that the Court may judge whether the step I intend to take is right or not, otherwise, as for me, I will evict you if that is not done.” In case the recipient is opposed to the notice, he/she should move the Court in terms of Section 152F(1). If the Court is moved, it may confirm, vary, cancel, alter or suspend the notice or order for compensation. I see nowhere in the Act where the owner of the land is required to go to court to confirm the notice. In case he/she wishes to do so, then he/she then has to file suit.
46.In Erot v Al-Momin Foundation (Environment and Land Appeal 20 of 2022)  KEELC 17557 (KLR) (25 May 2023) (Judgment), the Court in considering a similar issue stated, and I agree with the position, as follows:
47.For the reasons above I find that the first, second and fourth grounds of appeal fail. If the Appellant wanted any of the rights of the parties to be determined by the trial Court she should have filed a suit and proceed accordingly, otherwise there was no need for filing even the application that was dismissed by the trial court.
48.The fifth ground of appeal was that the trial Court erred in hoisting the Respondent’s rights over the Appellants. On this, the Appellant submitted that for the trial court to hold that the constitutional rights of the Respondent who claimed an interest in the land could not be guaranteed in a determination of the same in an application of the nature before her it was an error in law and fact. In my view, the trial court was right in finding that where there was contestation as to the legal interest of the parties over the suit land the manner of approaching the Court was by way of a suit which then could safeguard the parties’ right to be heard as provided for under Article 50(1) of the Constitution. In any event, I have found above that the law as it is does not make provision for the person issuing a notice of intended eviction to approach Court by the manner in which the Appellant herein did. Rather she should have only moved the court by a suit. Both parties had rights to be considered by the Court. The trial Court did so and found that the right to be heard would be best assured by way of filing a suit and adducing evidence. There is no evidence that the Court placed this right over and above the Appellant’s rights. Thus, the fifth ground too fails.
49.Lastly, the Appellant raised the ground of appeal that the court misdirected itself in delivering the Ruling by failing to consider and appreciate the evidence on record as tendered by the Applicant. I have carefully considered the Ruling of the trial Court. In my view the finding of the Court was not on the evidence tendered by the parties but on the requirements of the law. The Court found, and I have held that to be the proper finding of the trial Court, that in bringing the Application for the enforcement of the notice of intended eviction, it was short of the requirements of the law. It was on that account that the Application failed. Thus, the sixth ground of appeal is neither here nor there since the court did not address itself on the evidence but purely on the law.
50.The upshot of the analysis above is that the entire appeal fails. Therefore, it is dismissed with costs to the Respondent. The Ruling delivered by Hon. S. Makila PM on 13/04/2022 in Kitale Chief Magistrate’s Court Miscellaneous Civil Application No. E052 of 2021 is hereby upheld.