Nyaturi & 3 others v Malala & another (Environment and Land Appeal E005 of 2021) [2026] KEELC 4944 (KLR)
The bottom line
#The Environment and Land Court in Kisumu refused to reinstate a land appeal dismissed four years earlier, finding the delay inexcusable and the eviction already complete.
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 order made on 17th February 2022 dismissing the appeal for want of prosecution should be set aside and the appeal reinstated
- 2.Whether an order of stay of execution and of proceedings in Tamu MCELC No. 2 of 2017 should issue
- 3.Who should bear the costs of the application
Key legal issues
#Reinstatement of appeal dismissed for want of prosecution
Reinstatement refused; the Applicants' account was internally inconsistent with the record and the delay of over four years was unexplained
The Applicants claimed their Advocate told them no appeal had been filed, yet the Memorandum of Appeal was filed eleven days after judgment, counsel attended two mentions, and fee receipts continued through 2022. Either they knew of the appeal and neglected it, or abandoned it; neither amounts to excusable mistake. Delay of over four years, with five months post-knowledge unexplained beyond bare impecuniosity, was insuperable. No arguable appeal was demonstrated and reinstatement would prejudice the Respondents.
Regularity of the dismissal before admission of the appeal
Dismissal under Order 42 Rule 35(2) was regular; the argument was not raised in the Motion and directions given showed the appeal was on its merits path
The court had given directions for the Record of Appeal and written submissions and fixed a judgment date, inconsistent with an appeal awaiting admission. Order 42 Rule 35(2) empowered dismissal after one year without setting down. Any complaint of want of jurisdiction or mandatory procedure breach should have been raised by timeous review or appeal, not smuggled into a reinstatement application four years later.
Stay of execution and proceedings
Refused; the power depends on a pending appeal, and in any event the conjunctive conditions of Order 42 Rule 6(2) were not met and the judgment stood substantially executed
With the appeal not reinstated there was no pending appeal. On the merits, the application came over five years after judgment, no security was offered, substantial loss was merely asserted, and the eviction had already been executed on 30th April 2026, so a stay would be an order in a vacuum.
Legal principles established
#- An applicant for reinstatement of an appeal dismissed for want of prosecution must show an excusable cause, absence of unreasonable delay, and no prejudice to the opposite party
- The principle that an Advocate's mistake should not be visited on the client presupposes a diligent litigant and must be weighed against the litigant's own conduct
- Impecuniosity baldly asserted is not a satisfactory explanation for delay
- A stay of execution under Order 42 Rule 6 presupposes a pending appeal
Court orders
#- 1.The Notice of Motion dated 30th April 2026 is hereby dismissed
- 2.Each party to bear own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Tamu Magistrates' Court (Tamu MCELC Case No. 2 of 2017)
- Tamu MCELC Case No. 2 of 2017
- Jurisdiction invoked
- Environment and Land Court Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159 of the Constitution of Kenya
Relief refused
#Setting aside of the 17th February 2022 dismissal and reinstatement of the appeal
No excusable mistake demonstrated; inordinate unexplained delay; no arguable appeal; balance of justice against reinstatement
Stay of execution and proceedings in Tamu MCELC No. 2 of 2017
No pending appeal as anchor; conditions under Order 42 Rule 6(2) not met; judgment substantially executed
Costs
Each party to bear own costs of the application.
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 Notice of Motion dated 30th April 2026 is hereby dismissed
Each party to bear own costs of the application.
The discretion is, however, not exercised capriciously; it exists to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error
Litigation must come to an end. Reinstating this appeal, more than five years after the judgment appealed from and more than four years after its dismissal, would visit substantial prejudice on the Respondents
execution of court orders must at all times proceed strictly through lawful process, and any grievance as to the manner of execution is to be pursued before the appropriate forum
Issues in the judgment
#Discrepancy in the date of dismissal of the appeal: the Replying Affidavit and Case Tracking System extract reference 2nd May 2022, while the Motion and submissions proceed on 17th February 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaturi & 3 others v Malala & another (Environment and Land Appeal E005 of 2021) [2026] KEELC 4944 (KLR)", Case Analysis (2026). ELCA No. E005 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4944/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.