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ELCDismissedNot stated in the judgment

Toncap Investment v LN Property Development Company Limited (Environment and Land Appeal E014 of 2023) [2025] KEELC 4265 (KLR)

Environment and Land Court
5 June 2025
2,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to revive a struck-out land appeal because the applicant proved nothing: no missing file, no timely application, and badly prepared evidence.

What this practically means

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Executive summary

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By Notice of Motion dated 15/08/2024, the Applicant (Samuel O. Nyauke) sought review of this Court's orders of 03/07/2024 striking out his appeal for non-compliance with the direction to file a Record of Appeal, an extension of time to prepare and file the record, and reinstatement of the appeal for hearing on merit. He attributed the non-compliance to the Business Premises Rent Tribunal file being missing and under reconstitution, deponing he was unaware of the 03/07/2024 mention date. The Respondent (Philip Okundi) opposed through the replying affidavit of Philip Okundi, showing the Applicant had been served with the mention notice by courier, had not complied with directions, and was prosecuting an appeal filed out of time and without leave, designed to frustrate execution of taxed sums of Kshs. 210,235 arising from a BPRT decision of 02/12/2019. The Court framed two issues: whether the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 was met, and whether the suit should be reinstated. It held the Applicant failed to establish sufficient cause: no official proof that the tribunal file was missing or being reconstituted; the application filed after unexplained delay of about two months; the annexures uncommissioned and in breach of Rule 9 of the Oaths and Statutory Declaration Rules, thus inadmissible hearsay; and the annexures referred to a wholly different tribunal file between different parties (Luore Management, not L. N Property Development Co. Ltd). The application was dismissed with costs to the Respondent.

Questions the Court framed

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

  1. 1.Whether the Applicant has met the threshold to warrant review of the orders issued on 03/07/2024
  2. 2.Whether the Court should reinstate the suit and allow the Applicant more time to prepare the record of appeal

Key legal issues

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01

Whether the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 was met

Holding

Not met - no sufficient cause, no proof of the missing file, and the application was filed after unexplained delay of about two months from the order sought to be reviewed

Reasoning

The Applicant relied on sufficient cause, attributing non-compliance to the Tribunal's failure to avail its file. The Respondent proved service of the mention notice. The Court found the Applicant's conduct throughout inconsistent with a desire to prosecute the appeal, the delay in filing the application unexplained, and no official communication proving the file was missing or under reconstitution.

p. 5
02

Whether the annexures supporting the application were admissible and relevant

Holding

The annexures were neither commissioned nor sealed as required by Rule 9 of the Oaths and Statutory Declaration Rules, and their content referred to a different tribunal file between different parties, rendering the depositions inadmissible hearsay

Reasoning

Rule 9 of the Oaths and Statutory Declaration Rules (made under Section 6 of the Oaths and Statutory Declarations Act, Cap 15) requires exhibits to be sealed under the commissioner's seal and marked with serial letters. The annexures failed this test, and even if compliant, referred to Kisii (Migori) BPRT No. 51 of 2014 between the Appellant and Luore Management, not the file under appeal.

p. 5
03

Whether the unexplained delay in filing the review application defeated it

Holding

Yes - the application dated 15/08/2024 was filed on 24/09/2024, more than a month after it was drawn and two months after the strike-out order, with no explanation and no indication when the Applicant learned of the adverse order

Reasoning

Review applications must be brought without unreasonable delay. The Applicant gave reasons for the delay in preparing the record of appeal but none for the delay in filing the review application itself, and did not state when and how he came to know of the order striking out the appeal if he was truly unaware of the mention date.

p. 5

Legal principles established

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  • An applicant for review must establish discovery of new and important matter, mistake or sufficient cause, and must make the application without unreasonable delay.
  • A party alleging that a tribunal file is missing or being reconstituted must produce official communication proving it; bare depositions are mere imagination.
  • Exhibits to affidavits must be securely sealed under the seal of the commissioner for oaths and marked with serial letters of identification; uncommissioned annexures render depositions inadmissible hearsay.
  • Even where transfer between stations may change a file's registration number, the parties to a file cannot change; a complaint relating to a wholly different file and different parties cannot support a claim of sufficient cause.

Court orders

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  1. 1.The Application dated 15/08/2024 is dismissed
  2. 2.Costs to the Respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review of the court's own orders striking out an appeal)

Relief refused

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Review of the orders striking out the appeal

No sufficient cause established; no proof the BPRT file was missing or being reconstituted; unexplained delay in filing the application; exhibits inadmissible and referred to a different file and different parties

p. 5

Extension of time to prepare and file the Record of Appeal and reinstatement of the appeal for hearing on merit

Follows from the dismissal of the review application; the Applicant's conduct and unexplained delay did not justify the indulgence

p. 6

Costs

The Application is hereby dismissed with costs to the Respondent.

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.

In order for an Applicant to succeed in an Application for Review, he/she must convince the Court that; there is discovery of new and important matter, mistake or suficient cause. Additionally, the Application must be made without unreasonable delay.
p. 4Threshold for review
In the absence of any proof that the file is missing or being reconstituted, this court has no option but to find that there is no suficient cause to review the orders of this Court.
p. 5No sufficient cause established
The depositions therefore are mere inadmissible hearsay.
p. 5Inadmissible uncommissioned annexures
The upshot of the foregoing is that the Application is not merited as the Applicant has not established suficient cause to warrant the review of the orders striking out the appeal.
p. 6Conclusion on merit
The Application is hereby dismissed with costs to the Respondent.
p. 6Final orders / disposition
The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law.
p. 5Right to hearing and proportionality (as cited from Leiyagu v IEBC)

Issues in the judgment

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material

The Memorandum of Appeal recites an appeal against Nairobi Business Premises Tribunal Case No. 26 of 2016 (Kisii) against L. N Property Development Co. Ltd, while the Applicant's annexures refer to Kisii (Migori) BPRT No. 51 of 2014 between the Appellant and Luore Management - a mismatch the court itself flagged

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, "Toncap Investment v LN Property Development Company Limited (Environment and Land Appeal E014 of 2023) [2025] KEELC 4265 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4265/eng@2025-06-05

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