Court of Appeal Overturns Land Dispute Ruling: Key Lessons for Property Owners

On April 4, 2025, the Court of Appeal in Nairobi overturned a decision by the Environment and Land Court (ELC) in Civil Appeal No. 370 of 2019. This case involved a land dispute over a parcel of land, Karai/Lusigetti/T.1038, between the appellants, led by Boro Kabuthia, and the respondent, Michael James Karanja. This important judgment highlights the need for proper legal representation, timely court processes, and fair hearings in land cases. At Kubwa & Company Advocates, we break down the case and its implications for property owners in Kenya.

Background of the Case

The dispute began on March 18, 2014, when Michael James Karanja filed a plaint at the ELC, claiming land ownership and seeking to evict the appellants. The appellants, who claimed to have lived on the property since 1975 after allocation by the Kiambu County Council, were served with summons to enter appearance on March 19, 2014, along with other pleadings. The court directed the matter for hearing on April 9, 2014, but the appellants’ advocates, Mwendwa, Macharia, Mwangi & Co., failed to file a memorandum of appearance or defence within the required 15-day period under the Civil Procedure Rules.

On May 6, 2014, the appellants’ advocate appeared in court and sought leave to file a response to Karanja’s application, which was granted, with the matter scheduled for hearing on June 18, 2014. However, on June 9, 2014, the Deputy Registrar noted the absence of an appearance or defence and entered a summary judgment, marking the suit as undefended. The appellants filed a response on June 12, 2014, but the case was not listed for hearing due to an issue with the court’s registry vault, preventing file retrieval.

On November 24, 2014, the appellants filed another application, which the court did not consider as as urgent, directing formal proof instead. The formal proof was scheduled for April 22, 2015, but was heard on May 22, 2015, without the appellants’ knowledge, as they were not notified. The ELC delivered its judgment on September 22, 2017, ordering the appellants to vacate the land, followed by a decree on September 25, 2017, and an eviction order on November 16, 2017.

Unaware of the judgment, the appellants applied to set it aside on December 6, 2017, but later withdrew this application. On April 19, 2018, they filed a new application to set aside the September 22, 2017 judgment, arguing they were not served and that their advocates’ failure to act led to the default judgment. They also claimed the respondent’s title was fraudulent. The ELC dismissed this application on June 28, 2019, prompting the appeal.

The Court of Appeal’s Decision

The Court of Appeal, presided over by Justices Musinga, Lesiit, and Ali-Aroni, allowed the appeal and set aside the ELC’s ruling. The key findings were:

1. Lack of Proper Service: The court found no evidence that the appellants were served with hearing notices for the formal proof or other proceedings. This violated their right to a fair hearing.
2. Advocate’s Negligence: The appellants had instructed their advocates, but the firm failed to enter an appearance or file a defence. The court ruled that clients should not be penalised for their lawyers’ mistakes.
3. Importance of Fairness in Land Disputes: The court emphasised that land is an emotive issue in Kenya, and denying parties a chance to be heard should be a last resort. The appellants were granted 14 days to file their defence and counterclaim.

The court ordered each party to bear their own costs, prioritizing the pursuit of justice over procedural errors.

Why This Judgment Matters

This judgment is a victory for fairness and due process in land disputes. It highlights four key lessons for property owners and litigants:

• Hire Reliable Legal Representation: The appellants’ case suffered due to their advocates’ failure to meet deadlines, such as the missed 15-day window to file a defence after March 19, 2014. Always choose experienced and responsive lawyers.
• Monitor Your Case: Regularly follow up with your advocate to ensure filings and court appearances are on track. The appellants’ delay in addressing the issue until April 2018 worsened their situation.
• Know Your Rights: If you believe you were not properly served or denied a fair hearing, you can apply to set aside a judgment. Courts prioritise justice over procedural technicalities.
• Keep Land Ownership Documents Updated: The appellants’ lack of title deeds weakened their case. Ensure your property documents are valid and up-to-date to avoid disputes.

How Kubwa & Company Advocates Can Help

Land disputes in Kenya can be complex and emotionally charged. At Kubwa & Company Advocates, our experienced team specialises in property law and dispute resolution. We offer:

• Expert Legal Advice: Guidance on land ownership, title disputes, and court processes.
• Diligent Case Management: Timely filing of documents and representation to protect your interests.
• Fair Representation: Ensuring your voice is heard in court, focusing on achieving just outcomes.

Whether you’re facing a land dispute or seeking to secure your property rights, we provide trusted legal support.

Final Thoughts

The Civil Appeal No. 370 of 2019 judgment is a reminder that justice in land disputes hinges on fairness and proper procedure. This case highlights the need for proactive legal strategies and reliable representation for property owners. Contact Kubwa & Company Advocates today for expert assistance if you’re navigating a similar issue.

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