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ELCStruck OutNot stated in the judgment· [2025] KEELC 8648 (KLR)

Gikonyo & Sons Company Ltd v Mbaru (Sued as the legal representative of the Late Stephen Mbaru Gitara t/a San Stevens Electrical Sales and Services) (Environment and Land Appeal E202 of 2024) [2025] KEELC 8648 (KLR)

Environment and Land Court (inferred from memorandum of appeal; not expressly named)
11 December 2025
JKJ. G. Kemei
518 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out an appeal application because the applicant never proved the other side was served, showing service documents are non-negotiable.

What this practically means

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Executive summary

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This first-instance ruling by J.G. Kemei, Judge, determined the Appellant's application dated 13/3/2025 seeking leave to adduce further evidence on appeal. The Appellant, through its Director Samuel Gicimu Gikonyo, sought to produce documents from Nairobi SCC No. E601 of 2022, including a grant of representation. The background was a Small Claims Court suit for rent arrears of Kshs. 855,000/= against the late Stephen Mbaru Gitara; the Small Claims Court held on its own motion that it lacked jurisdiction, the dispute belonging to the Environment and Land Court. The Appellant then sued the Respondent, the deceased's legal representative, in the Magistrate's Court, but that suit was dismissed because the grant was not produced in court; the Appellant now wished to produce that grant as additional evidence on appeal. The application was brought under Sections 1A, 1B, 3A and 78 of the Civil Procedure Act and Order 42 Rule 27(1) and (2) and Order 51 Rule 6 of the Civil Procedure Rules, and was supported by an affidavit sworn on 13/3/2025. On 22/9/2025 the court directed the parties to file and exchange written submissions within 14 days, with the Appellant to serve the Respondent and file an affidavit of service. By the mention date of 7/10/2025, the Appellant's counsel had only filed submissions and could not confirm service. No affidavit of service appeared on the record. The court held that proceeding without proof of service would risk condemning the Respondent unheard, contrary to natural justice and the Article 50 right to a fair trial, and would amount to a mistrial. The application was struck out with no orders as to costs.

Key legal issues

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01

Effect of failure to prove service on an application for leave to adduce further evidence

Holding

The application was struck out because proof of service, as directed by the court, was never filed

Reasoning

The court had directed the Appellant to serve the Respondent and file an affidavit of service within 14 days, with mention on 7/10/2025 to confirm compliance. By that date counsel only confirmed filing of submissions and did not confirm service. No affidavit of service appeared on the record. The court held that proceeding without confirming the Respondent's awareness would amount to a mistrial, and struck out the application with no orders as to costs.

p. 2

Legal principles established

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  • A court cannot proceed to determine an unopposed or uncontested application without proof of service, as doing so violates natural justice and the Article 50 right to a fair trial

Court orders

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  1. 1.The Appellant/Applicant's application dated 13/3/2025 is struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 78
  • Civil Procedure RulesOrder 42 Rule 27(1) and (2)
  • Civil Procedure RulesOrder 51 Rule 6
  • Constitution of KenyaArticle 50
On appeal from
Small Claims Court
Nairobi SCC No. E601 of 2022
Jurisdiction invoked
Sections 1A, 1B, 3A and 78 of the Civil Procedure Act; Order 42 Rule 27(1) and (2) and Order 51 Rule 6 of the Civil Procedure Rules

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, "Gikonyo & Sons Company Ltd v Mbaru (Sued as the legal representative of the Late Stephen Mbaru Gitara t/a San Stevens Electrical Sales and Services) (Environment and Land Appeal E202 of 2024) [2025] KEELC 8648 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8648/eng@2025-12-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.