Kipkoech & 4 others v Cheruiyot (Environment and Land Appeal 13 of 2023) [2025] KEELC 154 (KLR)
The bottom line
#Kenya's High Court reinstated an application wrongly dismissed on a mention date, confirming courts cannot decide substantive issues without all parties' consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the Record of Appeal was fatally defective for omitting the trial magistrate's notes
The omission rendered the record defective but not incurably so; the court dispensed with the requirement under the proviso to Order 42 Rule 13(4) and Article 159(2)(d) and declined to strike out the appeal
Order 42 Rule 13(4)(c) lists the trial notes, but Proviso (ii) empowers the judge to dispense with documents not listed in paragraphs (a), (b) and (f). The Respondent could have raised the defect at a preliminary stage but failed to. The court independently perused the trial file, verified what occurred on 18th May 2023, and found no jurisdictional defect or prejudice. Procedural lapses not going to jurisdiction should not fetter substantive justice.
Whether the trial magistrate could lawfully dismiss the application for want of prosecution on a mention date
No; the dismissal on a mention date without consent of the parties and without hearing was unlawful and the order was set aside
Relying on Nzioki vs Kitusa, Tetra Pak Limited vs Macheo Limited and Rahab W. Evans vs Esso Kenya Ltd, the court held that substantive issues may only be determined on a mention date by consent of all parties and in exceptional circumstances. The Respondent's advocate was absent, so no consent existed. The dismissal was therefore not within the law, though Order 12 does permit dismissal for want of prosecution in appropriate cases.
Whether an application can be dismissed for want of prosecution under Order 51
Contrary to the Appellants' contention, Order 12 applies to applications as well as suits, but the circumstances here did not warrant dismissal
The court rejected the argument that Order 51 precludes dismissal for want of prosecution of applications, since applications cannot be left unprosecuted indefinitely. However, since the date in question was a mention date and not a hearing date, and the application raised substantive issues of abatement and death of a defendant, the proper course was to fix it for hearing rather than dismiss it.
Legal principles established
#- A court cannot determine substantive issues on a mention date absent consent of all parties
- Order 12 of the Civil Procedure Rules applies to both suits and applications, so an application may be dismissed for want of prosecution
- Defects in a record of appeal that do not go to jurisdiction or prejudice the adverse party should not nullify the appeal
Court orders
#- 1.The order of the trial court made on 18th May, 2023 dismissing the Appellants' Application dated 14th March, 2023 for want of prosecution be and is hereby set aside
- 2.The said Application is remitted back to the Chief Magistrate's Court for directions and to be heard and determined on its merits
- 3.The Application shall be heard and determined by any other Magistrate other than Hon. Peter Nyagaka Areri (SPM); the Appellants are at liberty to approach that court for leave to file their Supplementary Affidavit
- 4.The Appellants are awarded the costs of this Appeal
- On appeal from
- Chief Magistrate's Court, Eldoret
- Eldoret CM ELC No. 86 of 2018
- Jurisdiction invoked
- Appeal from the Chief Magistrate's Court under the Civil Procedure Act and Order 42 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkoech & 4 others v Cheruiyot (Environment and Land Appeal 13 of 2023) [2025] KEELC 154 (KLR)", Case Analysis (2025). Eldoret CM ELC No. 86 of 2018 (Appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/154/eng@2025-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.