Omwanda v Onduru & another (Environment and Planning Appeal E001 of 2023) [2025] KEELC 8451 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a landowner's appeal because he failed to pay court-ordered costs on time and could not prove his excuse.
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 trial court erred in dismissing the application dated 21st June 2023 seeking reinstatement of the suit
Key legal issues
#Procedural basis for reinstatement of a suit dismissed for want of prosecution under Order 17 Rule 2
The application lies under Order 17 Rule 6, not Order 12 Rule 7; quoting the wrong provision does not oust the court's consideration of the application on its merits
The court held that dismissal under Order 17 Rule 2 differs from non-attendance under Order 12, and the correct route to set aside is under Order 17 itself. However, misquotation of provisions does not bar consideration on the merits. The court proceeded to consider the application notwithstanding the parties' error.
Whether the appellant showed sufficient cause / reasonable grounds for reinstatement
The appellant failed: the conditional reinstatement order of 26th April 2023 required payment of throw away costs of Kshs. 10,000 within 15 days; the cheque was never delivered and the alleged agreement for collection was unproven
Counsel Roselyn Obare denied on affidavit any agreement to collect the cheque from the appellant's offices. The appellant produced no proof of the alleged communication. The burden of proof rested on the appellant, and the conditional setting aside order meant the suit stood dismissed on non-compliance.
Duty of a first appellate court
This being a first appeal, the court has a duty to re-examine and re-evaluate the evidence and arrive at its own conclusion
Citing Abok James Odera and Selle v Associated Motor Boat Co., the court restated that a first appellate court must re-evaluate, re-assess and reanalyse the evidence on record and draw its own conclusions, making allowance for not having seen or heard the witnesses.
Legal principles established
#- An application to set aside dismissal of a suit for want of prosecution under Order 17 Rule 2 may be brought under the same Order, within a reasonable time
Court orders
#- 1.The appeal is without merit and dismissed with no order as to costs
- 2.Orders accordingly
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (trial court, Homa Bay)
- Homa Bay ELC No. 20 of 2020
- Jurisdiction invoked
- First appellate jurisdiction under the Environment and Land Court Act over appeals from the magistrates' court; court did not cite a specific article
Relief refused
#Setting aside the order of 21st June 2023 dismissing the suit and reinstatement of the suit
The appellant was given several and enough opportunities to prosecute his case, including leniency in the condition of reinstatement, but failed to comply; no proof of the alleged agreement for the respondent's counsel to collect the cheque
Costs
Appeal dismissed with no order as to costs
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.
In my humble view, the Appellant was given several and enough opportunities to prosecute his case, including leniency in the condition of reinstatement, but failed to do the same.
The appellant did not provide any proof of this alleged communication between himself and counsel. Therefore, I am inclined to agree that there was no such agreement.
The appeal is without merit and dismissed with no order as costs.
It is clear that a party has the liberty to move the court under the same Order whereunder the dismissal took place.
Issues in the judgment
#Conflicting dates for the trial court ruling: earlier stated as 26th October 2023, later as 26th April 2024
Conflicting dates for the conditional reinstatement orders: order of 26th April 2023 referred to as orders issued on 29th June 2022 / 26th of June 2023 in submissions
The court frames the single issue narrowly but the parties raised multiple grounds; only one issue framed for determination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omwanda v Onduru & another (Environment and Planning Appeal E001 of 2023) [2025] KEELC 8451 (KLR)", Case Analysis (2025). ELC Appeal (Homa Bay ELC No. 20 of 2020 appeal) – Memorandum of Appeal dated 8th November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8451/eng@2025-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.