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ELCStruck OutKericho ELC Appeal (from Kericho CM ELC Case No. 70B of 2021) – Notice of Motion dated 19th March, 2025· [2026] KEELC 135 (KLR)
Chepkwony v Kamoing (Sued as the Personal Representative of the Estate of Elijah Kamoing) (Environment and Land Appeal E015 of 2024) [2026] KEELC 135 (KLR)
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·~10 min to read original · ~4 min briefThe bottom line
#The Land Court in Kericho struck out a land buyer's application to pause a Kshs 3.3 million refund judgment because it named and served the wrong person.
What this practically means
#Executive summary
#This is a ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) delivered on 22nd January, 2026 on the Appellant/Applicant's Notice of Motion dated 19th March, 2025. The applicant, Joseph Chepkwony, sought a stay of execution of the judgment and decree of the trial magistrate in Kericho CM ELC Case No. 70B of 2021 delivered on 1st October, 2024, an injunction restraining disposal of LR Kericho/Chemoiben/129, and maintenance of the status quo pending appeal. The trial court had found that the administrator of the estate of Elijah Kamoing Boldo lacked capacity to sell the suit land to the applicant, declared the sale invalid, and ordered a refund of Kshs. 3,320,000. The application was unopposed; the Respondent filed neither a response nor submissions. The applicant relied on Order 42 Rule 6(2) of the Civil Procedure Rules and various authorities to argue substantial loss, promptness, security and the balance of convenience. However, on its own motion the court noted that the Respondent named in the application, Zacharia Kipkemoi A. Kamoing, was different from the Respondent in the Memorandum of Appeal, Joshua Kiprono Kamoing, and that the person served was a stranger to the trial proceedings. Relying on Ibrahim Isaack and Company Advocates v Monarch Insurance Company Ltd, the court held that such fundamental defects could not be cured by Article 159(2) of the Constitution and that the application was incompetent. The court declined to determine the application on its merits and struck it out with no order as to costs.
Key legal issues
#01
Whether an application seeking orders against a person who was not a party to the trial suit, and who was not validly served, can be determined on its merits
Holding
No - such an application is incompetent and must be struck out
Reasoning
The court observed that the Respondent named in the application (Zacharia Kipkemoi A. Kamoing) differed from the Respondent in the Memorandum of Appeal (Joshua Kiprono Kamoing), and the person served was not a party to the trial court proceedings. The service affidavit also referenced a non-existent application dated 19th May, 2025. Relying on Ibrahim Isaack v Monarch Insurance, the court held the defects were fundamental and could not be cured by Article 159(2).
p. 7
Legal principles established
#- A party is bound by its pleadings and the court cannot fill gaps resulting from poor draftsmanship; fundamental errors going to the root of an application cannot be cured by Article 159(2) of the Constitution
- A party shall not be condemned unheard - a cardinal principle of natural justice
Court orders
#- 1.The Appellant/Applicant's Notice of Motion dated 19th March, 2025 is struck out with no order as to costs
- On appeal from
- Chief Magistrate's Court, Kericho (Environment and Land)
- Kericho CM ELC Case No. 70B of 2021
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepkwony v Kamoing (Sued as the Personal Representative of the Estate of Elijah Kamoing) (Environment and Land Appeal E015 of 2024) [2026] KEELC 135 (KLR)", Case Analysis (2026). Kericho ELC Appeal (from Kericho CM ELC Case No. 70B of 2021) – Notice of Motion dated 19th March, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/135/eng@2026-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.