Monica Muthoni (Suing as Legal Representatives of the Estate of Michael Anjere) v Daniel Solitei Namadi & County Government of Kajiado
The bottom line
#Kenya's Environment and Land Court set aside an appeal judgment because the losing party was never served with the appeal papers.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant has satisfied the requirements for grant of stay of execution of the Judgment delivered on 7th November 2024 and whether an interlocutory injunction should be issued
- 2.Whether the Applicant has satisfied grounds to warrant setting aside or varying of the Judgment delivered on 7th November 2024 and reopening the proceedings
Key legal issues
#Stay of execution under Order 42 Rule 6(2)
Stay refused because the Applicant neither demonstrated substantial loss nor furnished security.
Order 42 Rule 6(2) requires substantial loss, absence of unreasonable delay and furnishing of security. The court found, on perusal of the file, that the Applicant did not establish what loss he would suffer if the judgment were executed, so the relief for stay could not stand.
Setting aside the appellate judgment for want of service
Judgment set aside because there was no indication the Respondent was ever served with the appeal proceedings.
The court examined the appeal file and the Appellant's replying affidavit and annexures and found no affidavit of service. The Respondent's interests were directly affected and the appeal changed the position created by the lower court, producing an adverse result against a respondent who says he never received notice. The requirements of Order 42 rules 12 and 13 were not complied with, so the interests of justice favoured setting aside the judgment.
Legal principles established
#- An appellant must serve the memorandum of appeal on every respondent once the appeal passes the section 79B stage, and parties must be given notice before directions are given; failure to serve vitiates a judgment entered against an unserved respondent.
- The jurisdiction to set aside a judgment is discretionary and must be exercised judicially to prevent injustice or hardship arising from accident, inadvertence or excusable mistake.
Court orders
#- 1.The Judgement delivered on 7th November 2024 is hereby set aside
- 2.The Appellant is to serve the Respondent with the record of appeal within 30 days
- 3.Costs to abide the outcome of the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court at Kajiado
- Kajiado CMELC No. E087 of 2022
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court; application brought under Order 42 Rules 6 and 12-13 of the Civil Procedure Rules
Relief refused
#Stay of execution of the judgment delivered on 7th November 2024
Applicant did not establish what loss he would suffer if the judgment is executed
Temporary injunction restraining the Appellant from using or interfering with Plot No. 1275/Business – Noonkopir Trading Centre
Not granted; the court instead set aside the judgment to allow the Respondent to participate in the appeal
Leave to file a defence and defend the suit on its merits
Not granted in the terms sought; the court instead ordered service of the record of appeal and reopening of the appeal
Costs
Costs to abide the outcome of the Appeal
Quotable passages
#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 Judgement delivered on 7th November 2024 is hereby set aside.
The Appellant is to serve the Respondent with the record of appeal within 30 days.
That costs to abide the outcome of the Appeal.
I am not satisfied that these legal requirements were complied with.
the appeal changed the position created by the lower court. This court’s Judgment therefore produced an adverse result against a Respondent who says he never received notice of the appellate proceedings.
Issues in the judgment
#Judgment date inconsistently stated as 7th November 2024 and 7th December 2024
Ruling dated 24th September 2026 but application dated 15th December 2025 and delay described as one year from a 2024 judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monica Muthoni (Suing as Legal Representatives of the Estate of Michael Anjere) v Daniel Solitei Namadi & County Government of Kajiado", Case Analysis (2026). ELC. Appeal No. E024 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5903/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.