Kyuvi v Kwinga & another (Environment and Land Appeal E004 of 2021) [2025] KEELC 8279 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant has met the threshold for grant of the orders sought, namely setting aside the orders of 23rd January, 2025 striking out the Memorandum of Appeal, reinstating the appeal and deeming the record of appeal as duly filed.
Key legal issues
#Whether sufficient cause was shown for counsel's non-attendance on 23rd January, 2025 to justify setting aside the orders striking out the memorandum of appeal
Sufficient cause was shown: counsel was on leave and the matter had not been diarized, as evidenced by the diary extract, and the record of appeal had already been filed.
The court noted it has a wide discretion to set aside its orders, to be exercised judiciously. Counsel's failure to attend was due to being on leave and the matter not being diarized, confirmed by the diary extract for 23rd January, 2025. The appeal had not been dismissed a second time as the Respondents claimed, since the ruling of 16th October, 2024 found the appeal was never dismissed. As a record of appeal had been filed, albeit late, the Applicant should be allowed to urge the appeal, applying the broad equity approach in Philip Chemwolo.
Legal principles established
#- The court has a wide discretion to set aside its own orders, to be exercised judiciously.
- A mistake by counsel should not be visited upon the client by depriving the party of a hearing.
Court orders
#- 1.Setting aside the orders of 23rd January, 2025 striking out the Memorandum of Appeal and reinstating the appeal (prayer 2)
- 2.Deeming the record of appeal as duly filed (prayer 3)
- 3.The appeal is admitted to hearing
- 4.Appellant to file and serve written submissions within 21 days
- 5.Respondents to file their submissions within 21 days of being served
- 6.Mention on 4th February, 2026
- 7.Costs of the application to be costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Lower court (magistrates' court)
- Jurisdiction invoked
- Inherent discretion of the court to set aside its own orders (appeal pending before the Environment and Land Court)
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.
I therefore find that this is a deserving case where this court should exercise its discretion in favour of the Applicant. Consequently, I allow the Applicant’s application dated 25th March, 2025 in terms of prayers 2 and 3.
The appeal filed herein is admitted to hearing. The Appellant shall file and serve written submissions within 21 days.
This court has a wide discretion to set aside its orders. This exercise of discretion has to be made judiciously.
blunders will continue to be made by advocates and that should not be used as a bar for the party at fault not to be heard.
Issues in the judgment
#The deponent states the appeal was listed for mention on 23rd January, 2023, an apparent typographical error for 2025.
Respondents' replying affidavit sworn on 30th September, 2025 matches the date of their submissions, while directions were given before; dates may be misprinted.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kyuvi v Kwinga & another (Environment and Land Appeal E004 of 2021) [2025] KEELC 8279 (KLR)", Case Analysis (2025). Appeal No. E004 of 2021 (Notice of Motion dated 25th March, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8279/eng@2025-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.