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ELCDismissedELC Case (consolidated lead file ELC Case No. 11 of 2022), Kakamega

Eboso v Azelwa (Enviromental and Land Originating Summons 11 of 2022) [2026] KEELC 3638 (KLR)

Environment and Land Court
3 June 2026
ANA. Nyukuri
982 words in judgment
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The bottom line

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The Environment and Land Court refused to stop judgment, ruling that a party who skips court for two years without explanation cannot claim discretionary relief.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kakamega (A. Nyukuri, J) on a notice of motion dated 9th April 2025 filed by the respondent seeking to arrest the judgment directed to be delivered on 3rd April 2025, with costs in the cause. The respondent explained that the suit, originally filed in Eldoret, was transferred to Kakamega without his counsel being notified, and that network challenges frustrated efforts to join virtual court sessions; he asserted he had a triable defence. The applicant, through his guardian ad litem Sammy Amwayi Keiza, opposed the application as an abuse of process, asserting the respondent had been served with mention and hearing notices on multiple occasions but failed to attend, that equity aids the diligent and not the indolent, and that any professional negligence by the respondent's advocate should be pursued elsewhere. The court found a single issue: whether the applicant deserved the orders sought. Relying on its inherent jurisdiction under sections 3 and 63(e) of the Civil Procedure Act, the court reviewed the record and found the respondent's counsel had attended court in Kakamega in 2023 but then failed to appear on at least four hearing dates over two years despite service, on the last of which the applicant's case and the defence case were closed. The court held there was no impending judgment capable of being arrested since the matter had not been fixed for judgment, found the explanation for non-attendance implausible, and noted the respondent had filed no witness statement and had not sought to reopen his case or defend the suit. The application was dismissed with 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 applicant (respondent in the motion) deserves the orders sought, namely arrest of judgment

Key legal issues

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01

Whether the respondent was entitled to an order arresting judgment

Holding

The application was dismissed. The court held it had inherent jurisdiction under sections 3 and 63(e) of the Civil Procedure Act, but the prayer failed because the matter had not been fixed for judgment, so there was no impending judgment to arrest. The respondent's explanation for two years of non-attendance was implausible, he had not sought to reopen his case or defend the suit, and had filed no witness statement.

Reasoning

The court traced the chronology: the file transferred from Eldoret to Kakamega in 2022; counsel attended directions in 2023 and fixed hearing dates, but the respondent and his counsel failed to appear on 29th September 2023, 20th March 2024, 16th October 2024 and 3rd February 2025 despite service, when the applicant's case closed. Given this record of indolence and the absence of any fixed judgment date, the discretion was not exercised in the respondent's favour.

p. 3

Legal principles established

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  • A court cannot arrest a judgment where the matter has not been fixed for judgment; there must be an impending judgment capable of being arrested.
  • Equity aids the diligent and not the indolent; a party who is served with hearing notices but does not attend court for two years cannot obtain discretionary relief absent a plausible explanation.

Court orders

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  1. 1.The notice of motion dated 9th April 2025 is dismissed with costs
  2. 2.It is so ordered

The bench

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

AN
majority

Wrote the judgment

Jurisdiction invoked
Sections 3 and 63(e) of the Civil Procedure Act (inherent jurisdiction of the court)
Consolidated with
ELC Case No. 9 of 2023, ELC Case No. 10 of 2022, ELC Case No. 11 of 2022 (lead file), ELC Case No. 13 of 2022, ELC Case No. 15 of 2022

Relief refused

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Prayer to arrest the judgment to be delivered as directed on 3rd April 2025

The matter had not been fixed for judgment; there was no impending judgment capable of being arrested, and no merits in the explanation for the respondent's two-year non-attendance

p. 2

Costs

Application dismissed with costs to the applicant (costs of the application to the applicant).

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.

Therefore, this matter has not been fixed for judgment, to warrant a prayer for arresting a judgment. Thus, there is no impending judgment capable of being arrested.
p. 2arrest of judgment - prerequisite of an impending judgment
The case herein belongs to the respondent. He has not told the court why, for two years he never took any steps in regard to his case. He has not sought to reopen his case, or to be allowed to defend the suit.
p. 2diligence required of a litigant
For the reasons above, I am convinced that there is no merit in the application dated 9th April 2025, which I hereby dismiss with costs.
p. 3final orders - dismissal with costs

Issues in the judgment

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material

The delivery date appears as 3rd June 2026, which post-dates the application of 9th April 2025 and replying affidavit of 11th July 2025 by an implausible interval (the affidavit of 11 July 2025 postdates a 3 April 2025 direction but the judgment is dated 2026); the year 2026 is possibly a typographical error for 2025.

minor

The judgment's narrative states the matter was fixed for judgment as directed on 3rd April 2025, yet the court finds the matter was not fixed for judgment; the two passages sit in tension.

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, "Eboso v Azelwa (Enviromental and Land Originating Summons 11 of 2022) [2026] KEELC 3638 (KLR)", Case Analysis (2026). ELC Case (consolidated lead file ELC Case No. 11 of 2022), Kakamega. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3638/eng@2026-06-03

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