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ELCDismissedELCA E014 of 2023

Odongo & 3 others v Onyango (Environment and Land Appeal E014 of 2023) [2026] KEELC 3277 (KLR)

Environment and Land Court
6 May 2026
2,491 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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Homa Bay's Environment and Land Court refused to revive a land appeal dormant for two years, ruling unexplained inaction amounts to abandoning your own case.

What this practically means

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Executive summary

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The Applicants, appellants in an appeal (Homa Bay ELCA E014 of 2023) against a judgment of the Ndhiwa Principal Magistrate's Court delivered on 7th March 2023, moved the court by Notice of Motion dated 25th November 2025 seeking reinstatement of their appeal, which was dismissed for want of prosecution on 1st April 2025, together with a stay of execution by eviction arising from the trial decree and substitution of the deceased 1st Appellant, Patricia Achola Odongo, by Polycarp Odhiambo Odongo under a grant of letters of administration ad litem. They attributed the inaction to their advocate's advice that attendance was unnecessary and to the death of the 1st Appellant, who was their sole contact with counsel. The Respondents opposed, citing laches, inordinate and unexplained delay since July 2023, absence of merit in the appeal, and compliance with Section 152E of the Land Act. The court framed one issue: whether the dismissal order of 1st April 2025 should be set aside. Applying Order 42 Rule 35 as read with Order 12 Rule 7 and Section 3 of the Civil Procedure Act, the court held there is no express reinstatement mechanism under Order 42 Rule 35 but the court retains discretion in the interests of justice. However, the appeal had been dormant for two years, predating the 1st Appellant's death, and the Applicants produced no evidence of their advocate's alleged communication and only stirred after being served with an eviction notice. The explanation for the delay was found insufficient and the application was dismissed in its entirety with no order as to costs.

Questions the Court framed

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

  1. 1.Whether the court should set aside the order for dismissal for want of prosecution issued on 1st April 2025

Key legal issues

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01

Whether the order dismissing the appeal for want of prosecution on 1st April 2025 should be set aside

Holding

The application fails; the Applicants did not demonstrate sufficient cause for the delay in prosecuting the appeal

Reasoning

The court applied Order 42 Rule 35 as read with Order 12 Rule 7 and Section 3 of the Civil Procedure Act, importing the principles for setting aside dismissal. Although the 1st Appellant died on 2nd October 2024, the appeal had lain dormant since 19th July 2023, long before her death. The Applicants gave no evidence of any communication from their advocate excusing non-attendance, only moved after eviction notices were served, and failed to follow up their own appeal despite being separate parties with equal interests. The delay of two years was inordinate and unexplained.

p. 5
02

Whether the Applicants were entitled to a stay of execution pending the appeal

Holding

Stay was refused as the application was dismissed in its entirety

Reasoning

The Applicants relied on Order 40 Rule 6 and the case of Kedoki & another v Nchoe, urging substantial loss and absence of unreasonable delay. The Respondents countered that there was no merit or triable issues in the appeal and that they had complied with Section 152E of the Land Act. Having found the explanation for the dismissal of the appeal insufficient, the court found no merit in the entire application, including the stay and substitution prayers.

p. 5

Legal principles established

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  • There is no provision for reinstatement of an appeal dismissed under Order 42 Rule 35, but Order 12 Rule 7 gives the Court discretion, in the interests of justice, to set aside an order of dismissal of a matter not set down for hearing within the provided timelines
  • Where a plaintiff or appellant takes no steps at all in the case and gives no reason for the delay, courts will not hesitate to dismiss the matter even absent demonstrated prejudice

Court orders

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  1. 1.The Notice of Motion dated 25th November 2025 is dismissed with no order as to costs

The bench

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

majority

Wrote the judgment

On appeal from
Ndhiwa Principal Magistrate's Court
Ndhiwa PMC Land Case No. E023 of 2021
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act (Cap 21) and Order 51 Rule 1, Order 9 Rule 9, Order 12 Rule 6, Order 22 Rule 25, Order 8 Rule 3, Order 1 Rule 10 and Order 12 Rule 7 of the Civil Procedure Rules

Relief refused

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Setting aside the orders of 1/4/2025 dismissing the appeal for want of prosecution and re-opening the appeal

The Applicants' explanation for the two-year inaction was insufficient; there was lack of diligence and inaction amounting to abandonment of the appeal

p. 5

Stay of intended execution by eviction in Ndhiwa PMC Land Case No. E023 of 2021

Falls with the main application, which was dismissed for want of merit

p. 5

Substitution of Polycarp Odhiambo Odongo for the deceased 1st Appellant Patricia Achola Odongo

Substitution was ancillary to the reinstatement prayer which failed

p. 5

Costs

Application dismissed with no order as to costs

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.

In the circumstances, I find no merit in the Application and it is dismissed with no order as to cost costs.
p. 5Final orders - dismissal of the application
This is because there is no provision for reinstatement of an appeal dismissed under Order 42 Rule 35, but Order 12 Rule 7 gives the Court discretion to, in the interests of justice set aside an order of dismissal
p. 4Legal basis for reinstating an appeal dismissed for want of prosecution
Having perused the court record, I am not convinced that the explanation for the delay by the Applicants is suficient.
p. 5Insufficient explanation for inordinate delay
where the Plaintifi or an appellant for that matter takes no steps at all in their case, and gives no reason for the delay, courts will not hesitate to swing the knife and cut the subject into pieces
p. 5Court's approach to unexplained inaction by an appellant

Issues in the judgment

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minor

The eviction notice date is inconsistently stated - the affidavit avers it was dated 15/9/2025 while the Respondents' submissions state service on 30th November 2025

minor

The bill of costs date is inconsistent - annexed as POO-f per the affidavit (bill of costs dated 13/03/2023 per submissions) versus an assessment Notice served with the eviction notice

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, "Odongo & 3 others v Onyango (Environment and Land Appeal E014 of 2023) [2026] KEELC 3277 (KLR)", Case Analysis (2026). ELCA E014 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3277/eng@2026-05-06

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