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ELCDismissedMemorandum of Appeal dated 11/7/2023

Anyenda v Simidi & 12 others (Environment and Land Appeal 1 of 2023) [2025] KEELC 7980 (KLR)

Environment and Land Court
19 November 2025
CNC.K. NZILI
2,478 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kitale dismissed a landowner's appeal, confirming that ignoring court orders for over 20 years and skipping the chance to challenge a process server will cost you.

What this practically means

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Executive summary

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The Environment and Land Court at Kitale (C.K. Nzili, J) dismissed a memorandum of appeal dated 11/7/2023 challenging a trial court ruling dated 3/7/2023 that had refused to stay, review, or set aside contempt and enforcement orders issued against the appellant, who had obtained a 2002 decree for 47 acres out of L.R. No. 7847/4 (Jasho Farm). The respondents had obtained orders of 27/4/2023 sentencing the appellant to six months' imprisonment and directing that the decree be implemented by a government surveyor, after the appellant engaged a private surveyor whose subdivision gave the respondents less acreage than decreed. The appellant argued he was never served with the contempt application dated 3/8/2021 and had substantially complied with the decree. The court framed two issues: proper notification, and entitlement to review or setting aside. On service, the court held there is a presumption of correctness attaching to an affidavit of service, the burden lying on the party contesting it, and that the appellant's failure to summon and cross-examine the process server amounted to admitting that testimony. On setting aside, the appellant had to demonstrate sufficient cause and a plausible draft reply; he attached none, and his compliance evidence rested on an uncredentialed 'surveyor' without a survey report and an unsworn letter, which cannot amount to evidence. The over 20-year delay in implementing the decree was unexplained. The appeal was dismissed with costs, affirming the trial court's ruling.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.If the appellant had been properly notified of the application dated 3/8/2021 and the orders issued on 16/5/2022.
  2. 2.If the appellant was entitled to a review or the setting aside of the orders made on 16/5/2022, and leave to contest the application dated 3/8/2021.

Key legal issues

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01

Whether the appellant was properly served with the application dated 3/8/2021

Holding

Service was properly effected; the appellant never sought to cross-examine the process server and did not explain how he became aware of the adverse orders.

Reasoning

The process server's affidavit deposed to personal service at the appellant's homestead, and the same process server had previously served him without contest. Under Order 5 Rule 16 the appellant could have summoned the process server for cross-examination but did not. Failure to do so amounted to admitting the testimony, and the affidavit of service is admissible evidence absent a successful contest.

p. 4
02

Whether the appellant was entitled to review or setting aside of the orders of 16/5/2022

Holding

No; the appellant failed to show sufficient cause, produced no draft reply, and relied on unsubstantiated evidence of compliance.

Reasoning

The appellant bore the burden of demonstrating sufficient cause and a plausible draft reply, neither of which was produced. The deponent Ben Wanyama Situma did not establish his credentials as a licensed surveyor nor attach a surveyor's report, leaving doubts whether the decree was implemented as decreed (by a government surveyor). The inordinate delay of over 20 years was unexplained.

p. 5

Legal principles established

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  • There is a presumption of service per the process server's report; the burden lies on the party questioning it to show the return is incorrect.
  • A party disputing an affidavit of service should seek leave to cross-examine the process server; failure to do so amounts to admitting the process server's testimony.
  • Written submissions cannot replace pleadings or amount to evidence.

Court orders

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  1. 1.Appeal dismissed with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

CN
majority

Wrote the judgment

On appeal from
Magistrates' Court (trial court)
Jurisdiction invoked
Section 78 of the Civil Procedure Act

Relief refused

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Stay, review and setting aside of the enforcement orders issued on 16/5/2022

No sufficient cause, no draft reply, no cogent evidence of compliance, and inordinate delay of over 20 years

p. 5

Costs

The appeal was dismissed with costs (to the respondents).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The failure to call for and examine the process server by the appellant was tantamount to admitting the version of his testimony.
p. 4effect of not cross-examining a process server
The upshot is I find the appeal lacking merits. It is dismissed with costs.
p. 5final orders / disposition
The inordinate delay of over 20 years without complying with court orders to put a stop to the endless litigation had not been suficiently explained by the appellant.
p. 5inordinate delay and sufficient cause
Courts have held that written submissions cannot replace pleadings or amount to evidence.
p. 4submissions are not evidence

Issues in the judgment

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minor

Internal inconsistency in dates: the court refers to enforcement 'orders issued on 16/5/2022' but elsewhere 'The basis for seeking the stay of the enforcement orders issued on 16/5/2023'.

minor

The application dated 11/7/2023 is described as supported by an affidavit 'sworn on 11/5/2023', a date preceding the 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, "Anyenda v Simidi & 12 others (Environment and Land Appeal 1 of 2023) [2025] KEELC 7980 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 11/7/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7980/eng@2025-11-19

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