JUDGMENT OF THE COURT
1. The respondent, James Kwambai Cheruiyot, suing on behalf of the Estate of Cheruiyot Cheserem Kiyab (deceased) filed a plaint against the appellant seeking an eviction order from Land Reference No. Sergoit/Elgeyo Border 1 (Beliomo) 136. The respondent also prayed for general damages for trespass, mesne profits and costs of the suit. The suit was filed before the Eldoret Chief Magistrate’s Court as CMCC No. 329 of 1998.
2. The appellant, Saulo Kandie, filed a defence against the suit averring that the magistrate’s court did not have jurisdiction and that the matter was res judicata.
3. The suit was set down for hearing on 11th May 2001. On this day, the record of proceedings show that the following happenings took place before the learned Principal Magistrate, the Hon. L. W. Gitari (as she then was) as follows:-
“Mr. Kimaru for the Plaintiff (respondent herein)
Mr. Momanyi for the Defendant (appellant herein)
Mr. Kimaru: The case is for hearing. The hearing date was t…