Okello v Attorney General & 5 others (Environment and Land Appeal E107 of 2024) [2026] KEELC 234 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated a land suit wrongly dismissed without proper notice, even though the plaintiff had delayed for years.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court erred in declining to set aside the order dismissing the suit for want of prosecution
The appeal was allowed; the dismissal order of 23/11/2020 was set aside and the suit reinstated on conditions
The order dismissing the suit was made ex parte when both parties were absent and no notice to show cause under Order 17 Rule 2 was served. Where a court fixes a date in the absence of parties, it must notify them. Although the appellant's delay of nearly four years was inexcusable, the delay did not justify the un-procedural dismissal. The discretion to reinstate was therefore wrongly declined by the trial court.
Compliance with Order 17 Rule 2 of the Civil Procedure Rules before dismissing a suit for want of prosecution
No notice to show cause was given or served, so the dismissal breached Order 17 Rule 2(1)
Order 17 Rule 2(1) requires the court to give notice in writing to the parties to show cause why the suit should not be dismissed where no step has been taken for one year. There was no evidence any party applied for dismissal, none was present, and no notice to show cause was served on the appellant. The mention date of 23rd November 2020 was fixed by the court in the absence of the parties.
Duty of a first appellate court
A first appeal is by way of retrial; the court re-analyses the evidence and draws its own conclusions
Relying on Selle & Another v Associated Motor Boat Company Limited and Others [1968] EA 123, the court stated it is obligated to re-analyse the material placed before the trial court and draw its own conclusions, though making due allowance for the fact that it did not see or hear the witnesses.
Legal principles established
#- Where the court gives a date for an activity in a matter in the absence of the parties, the court has the obligation to sufficiently notify the parties
- Dismissal of a suit for want of prosecution without compliance with Order 17 of the Civil Procedure Rules (notice to show cause) is un-procedural and cannot stand notwithstanding delay by the applicant
Court orders
#- 1.The ruling of the trial court dated 9/12/2024 is set aside and substituted with an order allowing the application dated 27/8/2024
- 2.The order dated 23/11/2020 dismissing the suit for want of prosecution is set aside and the suit reinstated to hearing on condition that the appellant takes a date for hearing of the suit within forty-five (45) days hereof failing which the suit shall stand dismissed
- 3.Costs of the application dated 27/8/2024 are awarded to the respondents
- 4.Each party to bear own costs of the appeal
- On appeal from
- Magistrates' Court at Kisumu (ELC)
- Kisumu MC ELC No. 181 of 2018
- Jurisdiction invoked
- First appeal to the Environment and Land Court from the Magistrates' Court (appeal against ruling in Kisumu MC ELC No. 181 of 2018)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okello v Attorney General & 5 others (Environment and Land Appeal E107 of 2024) [2026] KEELC 234 (KLR)", Case Analysis (2026). Kisumu ELC Appeal arising from Kisumu MC ELC No. 181 of 2018 (Memorandum of Appeal dated 16th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/234/eng@2026-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.