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ELCAllowedNot stated in the judgment

Abade & another v Onyango & another (Environment and Land Appeal E009 of 2024) [2025] KEELC 7380 (KLR)

Environment and Land Court
9 October 2025
2,336 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated an appeal dismissed over a late survey fee payment, ruling that a short, explained delay cannot defeat substantive justice when the other side acted in bad faith.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 1st July 2025 brought by the appellants/applicants under Order 3 Rule 9A and Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking setting aside of the order of 30th June 2025 dismissing their appeal and reinstatement of the appeal. The dispute arose from a consent adopted on 6th February 2025 under which the parties were to share equally the cost of a survey of the suit land to resolve a boundary dispute (and an associated criminal case in the Mbita Law Courts). The respondents paid their share on time, but the appellants paid theirs late, and the court dismissed the appeal on 30th June 2025. The applicants attributed the delay to difficulty sourcing funds and problems with the Ardhi Sasa land registry portal. The 1st Respondent opposed, asserting deliberate non-compliance and unavailability of the government portal, and sought that the application be struck out with costs. The court allowed the application. Relying on Article 159(2)(d) of the Constitution and the clean hands doctrine, it found the appellants had given sufficient reasons for a brief delay, and condemned the respondents' conduct in withdrawing their own survey fee payment after the dismissal and seeking to lock the appellants out of both the appeal and the survey as predatory and an abuse of process. The appeal was reinstated, the parties directed to pay their respective survey fees, and the appeal set for mention on 9th December 2025, with costs to the applicants.

Questions the Court framed

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

  1. 1.Whether the application to set aside the order of dismissal of the appeal dated 30th June 2025 and reinstate the appeal is merited
  2. 2.The attendant issue of the costs of the application

Key legal issues

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01

Whether the appellants' failure to pay their share of the survey fees within the court-ordered deadline justified dismissal of the appeal, and whether the dismissal should be set aside

Holding

The application was allowed; the dismissal was set aside and the appeal reinstated because the appellants gave sufficient reasons for the short delay and the respondents' conduct disentitled them from relying on it

Reasoning

The court found the appellants' delay was only a few days and attributable to circumstances including difficulties with the Ardhi Sasa portal. It further found that after the dismissal the respondents withdrew their own survey fee payment and moved against the appellants, showing bad faith. Under Article 159(2)(d) and the clean hands doctrine, reinstatement served substantive justice.

p. 4
02

Whether the respondents' conduct of withdrawing survey fees paid after the dismissal constituted abuse of court process

Holding

Yes; the court held the respondents were not acting in good faith and were misusing the court's process

Reasoning

The 1st Respondent had urged survey as a settlement mechanism, paid his share, and even offered to pay the appellants' share, yet after dismissal he withdrew the payment, filed related costs bills, and sought to lock the appellants out of both appeal and survey. The court characterised this as predatory conduct and refused to countenance misuse of its process.

p. 4

Legal principles established

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  • Courts are obligated to determine matters on substantive justice rather than technicalities
  • In matters requiring the exercise of discretion, clean hands are a prerequisite to obtaining the orders sought

Court orders

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  1. 1.The Notice of Motion dated 1st July 2025 is allowed with costs to the applicants
  2. 2.The appeal dismissed on 30th June 2025 is reinstated
  3. 3.The parties to proceed to make their respective shares of the payments for the survey fees as required by the earlier orders of the court
  4. 4.The appeal to be mentioned on 9th December 2025 to confirm whether the survey exercise has been conducted and the report duly filed

The bench

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

majority

Wrote the judgment

On appeal from
Mbita Law Courts
No. 10 of 2023
Jurisdiction invoked
Order 3 Rule 9A and Order 12 Rule 7 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act

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.

The upshot is that I allow this instant application with costs to the applicants. I reinstate the appeal.
p. 4Final orders - reinstatement
Further, I direct that the parties proceed to make their respective shares of the payments for the survey fees as was required by the earlier orders of this court.
p. 4Final orders - survey fees
Article 159(2)(d) of the Constitution of Kenya obligates courts to determine matters based on substance rather than forma and technicalities.
p. 3Substantive justice
In matters which require the exercise of discretion, clean hands are an important prerequisite for a party to be granted orders they seek.
p. 4Clean hands doctrine
The conduct of the 1st Respondent in this instance is, in my humble view, one that is predatory: it is conduct which rejoices in the sufiering of the adversary and not of a mere litigant seeking justice in the matter.
p. 4Respondents' conduct

Issues in the judgment

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material

The judgment contains numerous garbled/scrambled passages, particularly in paragraph 17, suggesting corrupted text or transcription error

minor

Inconsistent dates: the grounds state payment was four days late (25th to 30th June) while the ruling describes a three-day delay, and the deadline is variously given as 25th and 26th June 2025

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, "Abade & another v Onyango & another (Environment and Land Appeal E009 of 2024) [2025] KEELC 7380 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7380/eng@2025-10-09

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