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ELCDismissedEnvironment and Land Appeal E008 of 2022· [2023] KEELC 16467 (KLR)

Were v Mbori (Suing as the Legal Representative of the Estate of the Late Isaac Mbori Oyugi)

Environment and Land Court
27 March 2023
GOGMA Ongondo
405 words in judgment
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The bottom line

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A Kenyan land appeal was thrown out because the appellant ignored a court deadline to file the appeal record and never explained why.

What this practically means

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Executive summary

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This was a ruling in an appeal (Environment and Land Appeal E008 of 2022) lodged at the Environment and Land Court at Homa Bay by Joseph Ochilo Were against Edward Oganga Mbori, suing as the legal representative of the estate of the late Isaac Mbori Oyugi. The memorandum of appeal, dated February 17, 2022 and filed April 5, 2022, raised five grounds, including that the trial magistrate erred in finding that the appellant trespassed onto Parcel No. Central Kasipul/Kamuma/1875 and in denying the appellant sufficient audience to put his defence. On January 18, 2023, the court directed the appellant's counsel to file and serve a complete record of appeal within 21 days, in default of which the appeal would be dismissed, invoking Article 159(2)(b) of the Constitution and section 3 of the Environment and Land Court Act. Kisaka, counsel for the respondent, applied for dismissal of the appeal for non-compliance. Service of the order was proved by an affidavit of service sworn on March 9, 2023 by Lucia Mutiva, an authorized process server. The court found that the appellant's counsel had neither complied with the order nor given any reasons for the failure, held the respondent's application meritorious, and dismissed the appeal with costs to the respondent. The ruling was delivered at Homa Bay on March 27, 2023 by GMA Ongondo, J.

Key legal issues

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01

Whether the appeal should be dismissed for non-compliance with the court's order of January 18, 2023

Holding

The appeal was dismissed because the appellant's counsel, though duly served, neither complied with the order to file a complete record of appeal within 21 days nor offered any reason for the failure.

Reasoning

The court had on January 18, 2023 directed the appellant's counsel to file and serve a complete record of appeal within 21 days, failing which the appeal would stand dismissed. Service of that order was proved by an affidavit of service sworn on March 9, 2023 by Lucia Mutiva, an authorized process server. The appellant neither complied nor explained the default, so the respondent's application to dismiss was found meritorious and allowed.

p. 2

Legal principles established

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  • A party who fails to comply with a court order to file a record of appeal within a set time, without explanation, risks dismissal of the appeal in the spirit of Article 159(2)(b) of the Constitution and section 3 of the Environment and Land Court Act.

Court orders

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  1. 1.The appeal be and is hereby dismissed with costs to the respondent
On appeal from
Magistrates' Court
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts (Environment and Land Court Act)

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, "Were v Mbori (Suing as the Legal Representative of the Estate of the Late Isaac Mbori Oyugi)", Case Analysis (2023). Environment and Land Appeal E008 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16467/eng@2023-03-27

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