[2025] KEELC 3624 (KLR)

[2025] KEELC 3624 (KLR)

The court found that the appeal was filed based on leave granted through orders that were subsequently set aside due to fraudulent service. As the foundation for the appeal was invalidated, the appeal itself became incompetent and could not be sustained. However, recognizing that the appellant may have been unaware of the fraud, the court had already directed that the application for leave to appeal out of time be heard afresh, ensuring fairness to both parties. Consequently, the memorandum of appeal was struck out, but no order as to costs was made, with each party bearing their own costs.

Citation
[2025] KEELC 3624 (KLR)
Parties
Appellant: Samuel Muriithi Kingoro; Respondent: Daniel Njinju Kithae
Court
Environment and Land Court
Court Station
Environment and Land Court at Kerugoya
Jurisdiction
Kenya
Judgment Date
8 May 2025
Case Number
Environment and Land Appeal E021 of 2024
Procedural Posture
Environment and Land Appeal / Ruling on Application to Strike Out Appeal
Outcome
appeal struck out as incompetent; no order as to costs
Judges
JM Mutungi
Legal Topics
Appeal Out of Time, Fraudulent Service, Striking Out Pleadings, Leave to Appeal, Land Disputes
Source Language
English
Civil Procedure Land and Property Appeal Out of Time Fraudulent Service Striking Out Pleadings Leave to Appeal Land Disputes

Case Brief

Summary, issues, holding and outcome

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Parties

Samuel Muriithi Kingoro

Appellant

Daniel Njinju Kithae

Respondent

Procedural Posture

Environment and Land Appeal / Ruling on Application to Strike Out Appeal

Legal Issues

  1. 1 Whether the appeal should be struck out following the setting aside of the orders granting leave to appeal out of time due to fraudulent service.
  2. 2 Whether the appellant should be prejudiced by the fraudulent actions of the process server.

Ratio Decidendi

The court found that the appeal was filed based on leave granted through orders that were subsequently set aside due to fraudulent service. As the foundation for the appeal was invalidated, the appeal itself became incompetent and could not be sustained. However, recognizing that the appellant may have been unaware of the fraud, the court had already directed that the application for leave to appeal out of time be heard afresh, ensuring fairness to both parties. Consequently, the memorandum of appeal was struck out, but no order as to costs was made, with each party bearing their own costs.

Court Disposition

appeal struck out as incompetent; no order as to costs

Orders

  • The memorandum of appeal filed herein is struck out.
  • Each party shall bear their own costs.