Cheruiyot v Cheruiyot & 3 others (Environment and Land Appeal E010 of 2024) [2025] KEELC 3344 (KLR)
The bottom line
#Kenya's Kericho Environment and Land Court restored an eviction judgment, ruling a magistrate used wrong reasons to undo it, and courts can't raise new issues on appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 2nd November 2023 was regular (served respondents)
The trial magistrate's finding that the respondents were aware of the suit logically amounted to a finding that the judgment was regular; this ground of appeal failed
The trial court's ruling expressly found the defendants were aware of the case notwithstanding which they failed to act. Although the magistrate did not use the word 'regular', that finding necessarily meant the ex parte judgment was regular, and the respondents' contention that they were not served was thereby negatived. The ground attacking that finding therefore failed.
Whether the trial magistrate applied the correct principles in setting aside a regular judgment
The trial magistrate relied on extraneous and unpleaded matters (large family, lack of funds to instruct counsel) that are not among the recognized factors for setting aside a regular default judgment; the ground succeeded
Applying James Kanyiita Nderitu, the court held that a court setting aside a regular default judgment must consider the reason for default, delay, triable issues and prejudice. The magistrate's stated reasons — family size and possible lack of funds — were neither pleaded nor among those factors, and were not raised by the respondents, rendering the decision erroneous.
Functus officio after eviction orders were implemented
The appellant was precluded from raising functus officio on appeal because the issue was never raised before the trial court
The court found the trial magistrate never addressed functus officio and perusal of the trial record showed neither party raised it. Following Republic v Mbaluto, appellate courts are restricted to issues canvassed and decided in the trial court; raising a new issue would convert the appeal into a trial in disguise.
Stay of execution of eviction orders
The trial court did not grant any stay of execution; the respondents never sought such orders, so the ground failed
The court reviewed the respondents' Notice of Motion dated 12th April, 2024 and found it sought setting aside of the judgment, not stay of execution, and the ruling granted none. The ground was therefore academic and lacked merit.
Inference of a trust not pleaded
Ground abandoned for want of submissions and not determined
Neither party addressed the trust ground in submissions; following authority that unargued grounds are deemed abandoned, the court declined to determine it.
New issue (absence of draft defence) raised only in submissions
Submissions cannot introduce issues extraneous to the memorandum of appeal; the submissions on the draft defence were disregarded
Relying on Coastal Bottlers and Amoth, the court held appellants are bound by their grounds of appeal; issues not in the memorandum but raised in submissions are best disregarded, so the draft-defence submissions were struck out of consideration.
Legal principles established
#- In a regular default judgment the court has an unfettered discretion whether or not to set it aside, and must consider the reasons for the default, the length of time elapsed, whether the defence raises triable issues, and the prejudice to each party
- A party is precluded from raising a new point on appeal where it was not raised before the trial court and neither party addressed it
- An appellant is bound by the grounds in the memorandum of appeal and cannot travel beyond them by sneaking new grounds into submissions; grounds not addressed in submissions are deemed abandoned
- Costs follow the event and a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise
Court orders
#- 1.The ruling and order in Kericho – CM ELC Case No. E053 of 2023 delivered on 25th July, 2024 is hereby set aside
- 2.The Appellant shall have costs of this appeal
- On appeal from
- Chief Magistrate's Court, Kericho (Hon. Johnstone Munguti, SPM)
- Kericho CM ELC Case No. E053 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the Magistrate's Court in an environment and land matter (Memorandum of Appeal dated 7th August, 2024)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot v Cheruiyot & 3 others (Environment and Land Appeal E010 of 2024) [2025] KEELC 3344 (KLR)", Case Analysis (2025). Kericho ELC Appeal (Memorandum of Appeal dated 7th August, 2024, arising from Kericho CM ELC Case No. E053 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3344/eng@2025-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.