Onyango v Khamala (Environment and Land Appeal E008 of 2024) [2025] KEELC 5104 (KLR)
The bottom line
#A Kenyan court gave a delayed appellant one last chance to file their appeal record within 14 days, or the appeal dies automatically with costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether cause has been shown why the appeal should not be dismissed for want of prosecution
- 2.Which procedural rules govern dismissal of an appeal for want of prosecution
Key legal issues
#Whether the Notice to Show Cause should result in dismissal of the appeal
Cause was shown; the appellant was granted one more chance to prosecute the appeal on conditions.
The appellant applied for certified proceedings by letter dated 17/04/2024 and paid for them, but the trial court had not supplied typed proceedings by 21/03/2025. The court found the delay attributable principally to the trial court, and the appellant's constitutional right to be heard tilted the balance against dismissal, though the explanation was described as feeble.
The applicable procedural framework for dormant appeals
Order 42 Rules 2, 11 and 12, not Order 17 Rule 2(1), govern non-compliance with steps in an appeal.
Order 17 Rule 2(1) applies to suits where no step is taken for one year. The court held that for appeals, particularly where non-compliance concerns preparatory steps, the applicable provisions are Order 42 Rule 2 (certified copy of the decree/order), Rule 11 (listing before a judge within thirty days) and Rule 12, with the onus on the appellant to move the court.
Legal principles established
#- Order 17 Rule 2(1) of the Civil Procedure Rules is inapplicable to appeals; dismissal of an appeal for want of prosecution is governed by Order 42 Rules 2, 11 and 12.
Court orders
#- 1.The Notice to Show Cause is dismissed, conditional on the appellant filing the Record of Appeal within fourteen (14) days
- 2.In default of filing the Record of Appeal within 14 days, the appeal shall stand struck out automatically with costs
- 3.The appeal to be mentioned on 7th July 2025 for further directions, subject to fulfilment of the condition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- trial court (lower court not named)
- Jurisdiction invoked
- Appellate jurisdiction under the Civil Procedure Act and Civil Procedure Rules (Order 42 Rules 2, 11 and 12)
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.
It is clear that in regard to appeals, order 17 Rule 2(1) is inapplicable, particularly where the issue is noncompliance with steps in preparation for the proceeding of an appeal.
I am convinced on a balance of probability that cause has been shown. I am inclined to grant the Appellant one more chance to prosecute the Appeal as the delay is due to the delay of the trial court to avail the typed proceedings.
The Notice to show cause is dismissed but on condition that the appellant files the Record of appeal within the next fourteen (14) days to file the Record of Appeal in default the appeal shall stand struck out with costs, automatically.
Issues in the judgment
#The judgment does not state the case number, the court, or the identity of the lower court appealed from.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyango v Khamala (Environment and Land Appeal E008 of 2024) [2025] KEELC 5104 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5104/eng@2025-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.