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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 3777 (KLR)

Kinaiyia & another (Suing as the Personal Representatives of Joseph Sein - Deceased) v Elesondai & 3 others (Environment and Land Appeal 19 of 2021) [2025] KEELC 3777 (KLR)

Not stated in the judgment (delivered virtually at Kajiado by L. Komingoi, Judge)
5 May 2025
783 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court gave two appellants a second chance to revive their dismissed appeal, but only on strict 21-day terms and at their own costs.

What this practically means

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Executive summary

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This Ruling determines a Notice of Motion dated 31st May 2024 brought by the Appellants under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The application sought setting aside of an order dismissing the appeal for want of prosecution made on 18th April 2023, readmission of the appeal for hearing on merit, extension of time to lodge and serve a record of appeal, and costs in the cause. It was supported by the affidavit of the Appellant Alfred Nkoshumu Kinaiya and opposed by the Respondents through a Replying Affidavit. The court directed written submissions. The Appellants, relying on Order 12 Rule 7 and authorities including the Salat decision, argued the delay was explained and that Articles 50 and 159 of the Constitution favoured determination on the merits. The Respondents countered that the Appellants were indolent, the underlying judgment was five years old, and discretion should favour parties who deserve it and finality in long-standing disputes concerning title to the suit property. Considering the Salat principles, the court found the reason for the delay explained and the Appellants deserving of the discretion, though it allowed the application reluctantly. It set aside the dismissal order of 18th April 2023, readmitted the appeal conditionally by directing that the record of appeal be filed within 21 days, failing which the appeal would stand dismissed, and ordered the Appellants to bear the costs of the application.

Key legal issues

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01

Whether the Appellants deserved the exercise of the court's discretion to set aside the dismissal of the appeal for want of prosecution and to extend time to file the record of appeal

Holding

The application was allowed: the dismissal order of 18th April 2023 was set aside and time extended by 21 days to file the record of appeal, with the Appellants to bear the costs of the application

Reasoning

The court applied the principles in the Salat case on extension of time. It found the reason for the delay had been explained and that the Appellants deserved the exercise of its discretion. The allowance was described as reluctant, and it was made conditional: the record of appeal had to be filed within 21 days, failing which the appeal would stand dismissed. The Appellants were also denied costs in the cause and ordered to pay the costs of the application.

p. 3

Legal principles established

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  • Where the reason for delay in prosecuting an appeal is satisfactorily explained, the court may exercise its discretion to set aside an order of dismissal for want of prosecution, notwithstanding the respondent's interest in finality.

Court orders

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  1. 1.The order dismissing the appeal on 18th April 2023 is set aside
  2. 2.The record of appeal to be filed within twenty one (21) days from the date of the Ruling, in default the appeal shall stand dismissed
  3. 3.Costs of the application to be borne by the Appellants

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Section 1A
  • Civil Procedure Act (Cap. 21)Section 1B
  • Civil Procedure Act (Cap. 21)Section 3A
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Bernard Muthee & Another VS Anita Kamba Mwiti
    [2021] eKLR
  • J.G. Builders VS Plan International
    [2015] eKLR
  • Pinpoint Solutions Ltd & Another VS Lucy Waithegeni Wanderi (as the legal administrator of James Nyanga Muchangi
    [2020] eKLR
  • Bernard M. Kisimu & another VS Morris Nzioka Kyongo & 2 others
    [2021] eKLR
  • Nicholas Kiptoo Arap Korir Salat VS IEBC & 7 others
    [2014] eKLR
  • Kenya Power & Lighting Company Ltd VS Benzene Holdings Ltd t/a Wyco Paints
    [2016] eKLR
  • William Koross (legal representative of Elijah C.A Koross) VS Hezekiah Kiptoo Komen & 4 others
    [2015] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21); Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Articles 50 and 159 of the Constitution

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, "Kinaiyia & another (Suing as the Personal Representatives of Joseph Sein - Deceased) v Elesondai & 3 others (Environment and Land Appeal 19 of 2021) [2025] KEELC 3777 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3777/eng@2025-05-05

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