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ELCDismissedNot stated in the judgment

Ojwang v Onyango & 3 others (Environment and Land Appeal E002 of 2025) [2026] KEELC 99 (KLR)

Environment and Land Court
19 January 2026
2,481 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an appeal and related filings because the appellant missed a filing deadline, showing court deadlines with automatic strike-out consequences must be taken seriously.

What this practically means

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Executive summary

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The Applicant, Catherine Adhiambo Ojwang, filed a Notice of Motion dated 12th January 2026 seeking temporary injunctions restraining the Respondents from conducting burial rites or interment on Land Parcel No. Suna West/58 and contiguous parcels Suna West/1473 and Suna West 1476, and a stay of execution of the judgment and decree of the Migori Environment and Land Court (Magistrate's Court) in ELC Case No. 27 of 2018, pending the hearing and determination of her Appeal. The application was prompted by the death of the 2nd Respondent and the imminent threat of burial on the suit property. The Court, however, first determined whether any Appeal was actually pending. On 30th October 2025, the Court had given the Appellant a last chance to file the Record of Appeal and decree within fourteen days, in default of which the Appeal would stand struck out with no further reference to court. The fourteen days expired on 13th November 2025 without compliance. The Court held that the Appeal was thereby automatically struck out, and that the fixing of a mention date for 26th January 2026 did not make those orders non-final. Consequently, there was no Appeal pending upon which the application could be anchored. The Court found the Appellant's delay and inaction unreasonable and unexplained, rejected the explanation that delay in extracting the decree excused non-compliance, and held that the failure to serve the 3rd and 4th Respondents was attributable to the Appellant's own error in omitting them from the initial Memorandum of Appeal. The application and the Record of Appeal filed in a nonexistent Appeal were struck out, with costs to the Respondents.

Questions the Court framed

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

  1. 1.Whether there is an Appeal pending before the Court, which would form the basis of the instant application
  2. 2.Whether the Applicant was entitled to temporary injunction and stay of execution pending the hearing and determination of the Appeal

Key legal issues

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01

Whether there was a subsisting Appeal before the Court

Holding

There was no Appeal pending before the Court; the Appeal stood struck out automatically on 13th November 2025 upon the Appellant's failure to comply with the orders of 30th October 2025.

Reasoning

The orders of 30th October 2025 gave the Appellant a last chance to file both the Record of Appeal and decree in fourteen days, in default of which the Appeal would stand struck out with no further reference to court. The fourteen days elapsed on 13th November 2025 without compliance. The subsequent mention date of 26th January 2026 was not a reprieve; it was merely to confirm compliance. The Court held that the appellant's delay and inaction were unreasonable and unexplained, and the fixing of a mention date did not render the strike-out orders non-final.

p. 5
02

Whether the Appellant could move the Court for interim relief in a struck-out Appeal

Holding

The Appellant could not move the Court in a nonexistent Appeal; the application and the Record of Appeal filed after the strike-out were themselves struck out.

Reasoning

The Court found that since the Appeal had been struck out, the Appellant had no competent basis upon which to bring the application for temporary injunction and stay of execution. The Record of Appeal and the application were filed approximately two months after the Appeal had been struck out, without any application for extension of time to regularize the position. The Court reasoned that the correct course would have been to apply for extension of time or reinstatement, but no such application was made.

p. 4

Legal principles established

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  • An Appeal stands struck out automatically upon failure to comply with a court order requiring filing of the Record of Appeal and decree within a specified period, and the failure to comply leaves no Appeal pending upon which interim applications may be brought.
  • A mention date fixed after a compliance deadline does not soften the finality of a self-executing strike-out order; the mention is merely to confirm compliance and close the file.

Court orders

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  1. 1.The application dated 12th January 2026 is struck out
  2. 2.The Record of Appeal filed in a nonexistent Appeal is struck out
  3. 3.Costs of the application and the Record of Appeal are awarded to the Respondents

The bench

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

majority

Wrote the judgment

On appeal from
Migori Environment and Land Court (Magistrate's Court)
ELC Case No. 27 of 2018
Jurisdiction invoked
Order 40 Rule 1, Order 42 Rule 6 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, Paragraph 32 of the Environment and Land Court Practice Directions

Relief refused

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Temporary injunction restraining the Respondents from conducting or facilitating burial rites, burial ceremonies, interment, or any related activities on Land Parcel No. Suna West/58 and contiguous parcels Suna West/1473 and Suna West 1476

There was no Appeal pending before the Court as the Appeal had been struck out for failure to comply with the orders of 30th October 2025; the application was therefore filed in a nonexistent Appeal

p. 4

Stay of execution and/or further proceedings arising from the judgment and decree of the Migori Environment and Land Court (Magistrate's Court) in ELC Case No. 27 of 2018

The Appeal had been struck out automatically upon the Appellant's failure to file the Record of Appeal and decree within fourteen (14) days as directed on 30th October 2025, leaving no substantive Appeal to anchor the relief

p. 4

Costs

Costs to the Respondents

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.

This court therefore finds that there is no Appeal that is pending before it since the instant one was struck out. Costs of the Appeal follow the event. Therefore, the application and the Record of Appeal filed in a nonexistent Appeal are, too, struck out with the costs to the Respondents.
p. 5Final orders - strike-out of application and Record of Appeal in a nonexistent Appeal
It therefore means that by that date the Appeal stood struck out. In the circumstances then, there is no Appeal pending herein before this court.
p. 4Automatic strike-out upon non-compliance with self-executing orders
The argument that the fixing of the Appeal for mention for 26th January 2026 from 30th October 2026 made the orders of the latter date not final is a total misconception.
p. 4Mention date does not soften the finality of a self-executing strike-out order
This court is inclined to find that the delay and inaction on the part of the appellant was not only unreasonable but unexplained.
p. 4Unexplained delay and inaction by the Appellant

Issues in the judgment

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minor

The judgment refers to 30th October 2026 in one passage, which appears to be a typographical error for 30th October 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, "Ojwang v Onyango & 3 others (Environment and Land Appeal E002 of 2025) [2026] KEELC 99 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/99/eng@2026-01-19

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