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ELCPartially Allowed· [2025] KEELC 3045 (KLR)

Chepkwony v Rono & 3 others (Environment & Land Case 46 of 2017) [2025] KEELC 3045 (KLR)

Environment and Land Court
3 April 2025
4,745 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determined two contested applications arising from a judgment delivered on 10th November 2022 in a land dispute over LR No. Kericho/Tebesonik/310. By that judgment the court granted the plaintiff a permanent injunction, ordered the defendants to vacate within 30 days failing which eviction would issue, awarded Kshs. 100,000 general damages for trespass, and dismissed the counterclaim concerning Kericho/Tebesonik/240. The defendants' Notice of Motion dated 17th July 2023 sought to vacate or set aside the judgment, contending they were condemned unheard and that the 4th Defendant had died without a legal representative being substituted. The plaintiff opposed, showing the defendants had filed a defence and counterclaim, given evidence and closed their case on 24th November 2021 after an earlier closing order had been set aside on their own application. The plaintiff's application dated 9th October 2024 sought an eviction order, appointment of Jewo Auctioneers and police security. The court held that, having lodged a Notice of Appeal on 22nd November 2022, the defendants were precluded from seeking setting aside as proceedings had moved to the Court of Appeal; and on the record they were heard. It found no basis to set aside the judgment and, since it had not been stayed, granted the eviction order, left the plaintiff free to appoint an auctioneer including Jewo Auctioneers, directed the OCS Roret Police Station to provide security, dismissed the defendants' application and awarded the plaintiff costs of both applications. Ruling dated and delivered virtually at Kericho on 3rd April 2025.

Key legal issues

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01

Effect of a Notice of Appeal on an application to set aside judgment

Holding

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.

Reasoning

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.

p. 8
02

Whether the defendants were denied an opportunity to be heard

Holding

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.

Reasoning

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.

p. 9
03

Whether an eviction order should issue

Holding

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.

Reasoning

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.

p. 10
04

Appointment of auctioneer for the eviction

Holding

The plaintiff is at liberty to appoint any auctioneer of his choice, including Jewo Auctioneers, following Joseph Nyakundi Orina v Joseph Ambuka.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The Defendants' Notice of Motion application dated 17th July, 2023 is dismissed with costs
  2. 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. 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. 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. 5.The Plaintiff shall have costs of the applications dated 17th July, 2023 and 9th October, 2024

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 22 Rule 29
  • Civil Procedure RulesOrder 45 Rule (1) & (2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 12 Rule 2(a)
  • Civil Procedure ActSections 1A, 1B, 3 & 3A
  • Civil Procedure Act (Cap. 21)Section 27
  • Environment and Land Court ActSection 13
  • Constitution of Kenya 2010Articles 22, 25, 50 & 159

Cases cited (7)

  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
  • TKR v JMM
    [2021] KEHC 1054 (KLR)
  • Multipurpose Co-operative Society Ltd v Serser & 3 others
    (Civil Appeal 160 of 2018) [2023] KECA 441 (KLR) (14 April 2023)
  • Mkabara v Frisch
    [2002] 2 EA 475
  • Shanzu Investments Ltd v Commissioner of Lands
    [1993] eKLR
  • Patel v EA Cargo Handling Services Ltd
    (1974) EA 75
  • Joseph Nyakundi Orina v Joseph Ambuka
    [2019] KEELC 4401 (KLR)
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.