Salimba & another v Sibelenje (Suing on her Behalf and on Behalf of the Estate of Silas Sibelenje Sibelo) (Environment and Land Appeal E013 of 2025) [2026] KEELC 4418 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that courts cannot dismiss a lawsuit for non-attendance on a mere mention date, so wrongly dismissed suits can be reinstated.
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 learned magistrate erred in law and fact in allowing an application filed by a stranger to the suit (the firm of Florah Malanda Advocates not being properly on record under Order 9 Rule 9)
- 2.Whether the representation of the Respondent by the firm of Florah Malanda Advocates was irregular
- 3.Whether the trial court erred in allowing the Respondent's application notwithstanding insufficient reason for the failure to attend court, given that the suit was dismissed for want of prosecution at a mention date without evidence of service of the mention notice
Key legal issues
#Whether the application dated 27th February 2025 was competently filed by a firm not properly on record
No prejudice was occasioned by the order allowing the new firm to come on record being issued at the determination of the application rather than at inception, since the application was ultimately allowed
Order 9 Rule 9 provides the procedure for change of advocates after judgment. The application included a prayer for leave for Florah Malanda Advocates to come on record. The suit had merely been dismissed for non-attendance and the application was allowed; therefore no prejudice befell the opposing party from the sequencing of the leave order.
Whether the trial court erred in setting aside the dismissal of the suit for want of prosecution
The dismissal was irregular because it occurred on a mention date, without evidence of service of the mention notice, and no provision permits dismissal for want of prosecution on a mention date
The proceedings of 18th July 2024 show the matter was listed for mention for directions. The date had been given in the absence of both parties and no mention notice was exhibited. Order 17 governs dismissal for want of prosecution and its procedure was not followed; Order 12 on non-attendance applies to hearing dates, not mention dates. The trial court rightly reviewed and set aside the dismissal.
Legal principles established
#- A first appellate court must re-analyse the evidence before the trial court and draw its own conclusions
- There is no provision for dismissal of a suit for want of prosecution on a date fixed for mention; Order 12 relates to non-attendance on dates fixed for hearing
- Technicalities of procedure should not be used to defeat substantive justice where no prejudice is occasioned
Court orders
#- 1.The appeal lacks merit and is hereby dismissed
- 2.Each fair party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Vihiga Principal Magistrate's Court (PMELC)
- Vihiga PMELC No. E026 of 2023
- Jurisdiction invoked
- First appeal to the Environment and Land Court from the subordinate court's ruling
Relief refused
#The Appellant's appeal challenging the ruling of 12th June 2025 reinstating the suit
The trial court did not err in allowing the application; the suit was dismissed on a mention date without evidence of service of the mention notice, and Order 12 applies only to hearing dates, not mention dates
Costs
Each party to bear their own costs of the appeal ('let each fair party bear its own costs of the appeal')
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.
The appeal lacks merit and is hereby dismissed.
As the suit is yet to be heard and determined on merit, let each fair party bear its own costs of the appeal.
There is no provision for dismissal of a suit for want of prosecution on a date when the same is coming up for mention.
An appeal to this court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled.
Issues in the judgment
#The judgment text is corrupted at paragraphs 3-4 and 22-23: text appears out of sequence or truncated, garbling the narration of the application dates and the Respondent's explanation
The parties' names are never stated in the judgment; they are identified only as Appellant/Respondent, and the suit parcel/claim is identified only through the description of the underlying plaint
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salimba & another v Sibelenje (Suing on her Behalf and on Behalf of the Estate of Silas Sibelenje Sibelo) (Environment and Land Appeal E013 of 2025) [2026] KEELC 4418 (KLR)", Case Analysis (2026). Vihiga PMELC No. E026 of 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4418/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.