Samuel Musingila Mwinzi v Esther Maasa Kaesa (On behalf of the Estate of Kaesa Kiiti) [2021] KEELC 4356 (KLR)

Summary at a glance

Facts

Respondent/Applicant failed to file the Record of Appeal and serve the Appellant’s submissions within the court’s orders. The Appellant’s advocate misled the court by not serving the Respondent’s advocate with the Appellant’s submissions.

Issues

• Whether the Respondent/Applicant had a legitimate expectation to be served with the Appellant’s submissions.
• Whether the Appellant’s advocate’s failure to serve the Respondent’s advocate with the Appellant’s submissions is a sufficient ground to set aside the Judgment.

Reasoning

The Appellant’s advocate did not serve the Respondent’s advocate with the Appellant’s submissions as ordered by the court, and the Respondent was condemned unheard.

Outcome

The Judgment and Decree of the court delivered on 1st November, 2019, and all the subsequent orders, are set aside.

Orders

• The Appeal will be heard and determined by the Environment and Land Court Judge sitting in Makueni.
• The Appellant’s advocates’ law firm to personally pay to the Respondent the costs of this Application.

Remedies

• The Judgment and Decree of the court delivered on 1st November, 2019, and all the subsequent orders, are set aside.