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ELCDismissedELCA No. 1 of 2017 (formerly Kakamega HCCA No. 4 of 2013)· [2024] KEELC 1429 (KLR)

Appellants v Respondent (Notice of Motion dated 11th October 2023 for reinstatement of appeal)

Environment and Land Court of Kenya at Kakamega
14 March 2024
832 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to revive an appeal ignored for five years, because the family offered no evidence explaining the long silence.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 11th October 2023 in which the Appellants sought reinstatement of their appeal, Kakamega ELCA No. 1 of 2017 (formerly Kakamega HCCA No. 4 of 2013), which had been dismissed for non-attendance on 10th May 2018 during a show-cause listing. The appeal itself was against a ruling delivered on 25th August 2010 by Hon. P.N. Ireri (Resident Magistrate) in Kakamega CM Award No. 2005 of 2008. The First Appellant deposed that he was paralysed following a road accident between 2016 and 2018, that the Second Appellant was occasionally mentally retarded and could not proceed alone, that they ran out of money to pay their advocate, and that a family-initiated mediation failed. The Respondent opposed, citing a delay of five years, the absence of medical proof, and the failure to explain non-attendance on the dismissal date. D. O. Ohungo J framed a sole issue: whether the dismissal order of 10th May 2018 should be set aside. Applying Mbogoh & Another v. Shah [1968] EA 93 as reiterated in James Kanyiita Nderitu, the court held the delay of five years and three months inordinate and the explanations unsupported: the paralysis claim did not cover the post-2018 period, no medical evidence was tendered, the funds claim was unverified, and the parties should have informed the court of the election to mediate. The court dismissed the application and made no order as to costs given the family relationship between the parties.

Key legal issues

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Whether the dismissal of the appeal on 10th May 2018 should be set aside and the appeal reinstated

Holding

The application was dismissed because the delay of five years and three months was inordinate and unexplained, and the medical and financial claims of the appellants were unsupported.

Reasoning

The court applied the Mbogoh v Shah principles as reiterated in James Kanyiita Nderitu. The alleged paralysis covered only up to 2018 yet the application came in 2023; no medical proof was offered for the claimed paralysis or mental retardation; the funds and mediation explanations were unverified; and the appellants could have attended court to record the election to mediate. The respondent's prejudice and the absence of genuine excusable mistake weighed against reinstatement.

p. 2

Legal principles established

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  • In setting aside a dismissal, the court considers the reason for failure to prosecute, the length of elapsed time, the prejudice to each party and the interest of justice; the discretion is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay.

Court orders

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  1. 1.The Notice of Motion dated 11th October 2023 is dismissed
  2. 2.No order as to costs
On appeal from
Chief Magistrate's Court, Kakamega
Kakamega CM Award No. 2005 of 2008
Jurisdiction invoked
Inherent discretion of the court to reinstate an appeal dismissed for non-attendance (Mbogoh & Another v. Shah principles)

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, "Appellants v Respondent (Notice of Motion dated 11th October 2023 for reinstatement of appeal)", Case Analysis (2024). ELCA No. 1 of 2017 (formerly Kakamega HCCA No. 4 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1429/eng@2024-03-14

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