Chepkwony v Rono & 3 others (Environment & Land Case 46 of 2017) [2025] KEELC 3045 (KLR)
The bottom line
#A Kericho court ruled you cannot ask the trial court to overturn a judgment you have already appealed, and ordered the defendants evicted.
What this practically means
#Executive summary
#Key legal issues
#Effect of a Notice of Appeal on an application to set aside judgment
The defendants' application to set aside the judgment fails because they had lodged a Notice of Appeal, which transferred the proceedings to the Court of Appeal.
The court relied on Multipurpose Co-operative Society Ltd v Serser and Mkabara v Frisch, holding that the appellate process commences upon filing a Notice of Appeal, which removes proceedings from the trial court. The defendants lodged their Notice of Appeal on 22nd November 2022 and filed the application on 18th July 2023, so on this point alone the application failed.
Whether the defendants were denied an opportunity to be heard
No. The court record shows the defendants gave evidence and closed their case on 24th November 2021 after earlier orders of 29th September 2021 were set aside on their own application.
On 29th September 2021 the defendants were absent and their case was closed under Order 12 Rule 2(a). On 26th October 2021 their application dated 21st October 2021 was allowed unopposed, setting aside those orders. The defence hearing proceeded on 24th November 2021, with the 1st to 3rd defendants testifying as DW1 to DW3 and closing their case; counsel confirmed he would proceed without the deceased 4th Defendant.
Whether an eviction order should issue
Yes. The judgment of 10th November 2022 ordered the defendants to vacate within 30 days failing which eviction would issue; over two years had elapsed with no vacation, so the eviction order was granted.
Judgment was delivered on 10th November 2022 with an order that defendants vacate within 30 days and that eviction issue upon default. As at the ruling, more than two years had passed, defendants had not vacated, had filed no response to the eviction application, and the judgment had not been stayed, varied or set aside. The court found nothing easier than granting the eviction order.
Appointment of auctioneer for the eviction
The plaintiff is at liberty to appoint any auctioneer of his choice, including Jewo Auctioneers, following Joseph Nyakundi Orina v Joseph Ambuka.
Relying on Joseph Nyakundi Orina v Joseph Ambuka, where the court allowed eviction to be conducted by a court bailiff or an auctioneer of the applicant's choice with police security, the court held the plaintiff free to appoint any auctioneer, including Jewo Auctioneers, and directed the OCS Roret Police Station to provide security during the eviction.
Legal principles established
#- The filing of a Notice of Appeal commences the appellate process and ousts the trial court's jurisdiction to review or set aside the judgment appealed from.
- An application is to be determined on its substance rather than the correctness of the provision cited; citing Order 45 (review) instead of setting aside does not render the application incompetent where the substance is to set aside a judgment.
- Costs follow the event under Section 27 of the Civil Procedure Act; a successful party should ordinarily be awarded costs.
Court orders
#- 1.The Defendants' Notice of Motion application dated 17th July, 2023 is dismissed with costs
- 2.An eviction order is issued against the Defendants, their servants, agents or any other person claiming through them from the suit land parcel comprised in title No. Kericho/Tebesonik/310 measuring 4.45 Ha
- 3.The Plaintiff is at liberty to appoint any auctioneer of his choice, including but not limited to Jewo Auctioneers, to undertake the eviction exercise
- 4.The OCS, Roret Police Station shall provide security to the Plaintiff for purposes of enforcing peace during the eviction exercise on LR No. Kericho/Tebesonik/310
- 5.The Plaintiff shall have costs of the applications dated 17th July, 2023 and 9th October, 2024
- Jurisdiction invoked
- Sections 3A of the Civil Procedure Act, Section 13 of the Environment and Land Court Act, and Order 22 Rule 29 & Order 51 Rule 1 of the Civil Procedure Rules (in respect of the plaintiff's application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepkwony v Rono & 3 others (Environment & Land Case 46 of 2017) [2025] KEELC 3045 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3045/eng@2025-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.