Nyamugara v Ogalo & another (Environment and Land Civil Appeal E018 of 2023) [2025] KEELC 3500 (KLR) (29 April 2025) (Judgment)

Facts

The Appellant, Jane Moraa Nyamugara, appeals against the judgment of the learned Magistrate, Hon. H. Onkwani, PM, delivered on 8th April, 2021. The Appellant claims the learned Magistrate misdirected herself in law concerning the provisions of Order 10 Rule 4 of the Civil Procedure (Amendment) Rules, 2020. She also claims the learned Magistrate erred in fact when she found that the Defendants had entered appearance and were represented by an Advocate, and that the Defendants’ supposed Advocates had not been served with hearing notices. The Appellant further claims the learned Magistrate failed to give due regard to the elaborate evidence showing a boundary dispute between the parties and to the submissions filed by the Plainti.

Issues

1. Misdirection in law concerning the provisions of Order 10 Rule 4 of the Civil Procedure (Amendment) Rules, 2020
2. Error in fact concerning the Defendants' appearance and representation
3. Error in fact concerning the Defendants' Advocates' service with hearing notices
4. Failure to give due regard to the boundary dispute evidence
5. Failure to give consideration to the Plainti's submissions
6. Failure to prove the case on a balance of probabilities
7. Failure to exercise discretion and inherent powers judiciously

Reasoning

The court found that the learned Magistrate did not err in law and in fact when she failed to determine that the Appellant has proved their case on a balance of probabilities. The court also found that the Appellant has failed to prove their case on a balance of probabilities.

Outcome

Appeal dismissed

Authorities cited