Opere v Nyakwama & another (Environment and Land Appeal E023 of 2024) [2025] KEELC 8554 (KLR)
The bottom line
#Kenya's High Court spared an appeal from dismissal because the court registry's delay, not the appellant's fault, caused the missing certified decree.
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 appellant’s appeal should be dismissed for noncompliance with the provisions of the law on the procedure of filing and prosecuting appeals
Key legal issues
#Whether the appeal should be dismissed for failure to file a certified copy of the decree under Order 42 Rule 2
No; dismissal was not warranted because the appellant was never given timelines to file the decree, and the delay was attributable to the unavailability of typed proceedings rather than the appellant's fault.
The court examined Order 42 Rules 2 and 11, noting they are silent on the consequence of non-compliance. It found the appellant had not been given timelines within which to file the certified decree, had written requesting proceedings and judgment, and the typed proceedings were only certified after the Notice to Show Cause was issued. Since the delay stemmed from the registry rather than the appellant, the court found no fault and allowed the appeal to proceed subject to strict timelines.
Legal principles established
#- Where timelines fixed by law or the court are not complied with, the court may sanction the party at fault, including dismissal for non-compliance.
- Order 42 Rules 2 and 11 do not expressly prescribe the consequence of an appellant's failure to file a certified decree, and where no timelines were set and proceedings were unavailable, no fault attaches to the appellant.
Court orders
#- 1.The appeal allowed to proceed for determination
- 2.Appellant to file and serve written submissions and the Supplementary Record of Appeal within ten (10) days from the date of the ruling, in default the appeal to stand struck out automatically, with costs to the Respondents
- 3.Appeal to be mentioned on 15th January 2026 to confirm compliance and give further directions
- 4.No order as to costs on the issue of the Notice to Show Cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (Migori)
- Migori CMCELC no. 60 of 2018
- Jurisdiction invoked
- Appellate jurisdiction under section 79B of the Civil Procedure Act read with Order 42 Rules 2 and 11 of the Civil Procedure Rules
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.
Given the aforestated, I find no fault on the part of appellant and allow the appeal to proceed for determination subject to the appellant filing and serving written submissions on the and the Supplementary of Record of appeal within only ten (10) days from the date of this ruling, in default the appeal shall stand struck out automatically, with costs to the Respondents.
There shall be no order as to costs on this issue of the Notice to Show Cause.
The Appeal shall be mentioned on 15th January 2026 to confirm the filing and service of the Supplementary Record of Appeal and submissions in time, and giving further directions if that shall have been complied with.
Issues in the judgment
#Inconsistent dates: judgment of the lower court said to be delivered on 17th September 2024 but the appellant deponed he requested proceedings for a judgment delivered on '17th September 2025'.
Contradictory date for the Notice to Show Cause: stated as issued on 5th February 2025, but later described as issued on 26th March, 2025.
Drafting/typographical errors throughout, including 'suficient', 'afidavit', 'the was never served', 'dismissal of it matter', and reference to 'the applicant’s replying affidavit' where the respondent's is meant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Opere v Nyakwama & another (Environment and Land Appeal E023 of 2024) [2025] KEELC 8554 (KLR)", Case Analysis (2025). Migori CMCELC No. 60 of 2018 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8554/eng@2025-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.