Toncap Investment v LN Property Development Company Limited (Environment and Land Appeal E014 of 2023) [2025] KEELC 4265 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to revive a struck-out land appeal because the applicant proved nothing: no missing file, no timely application, and badly prepared evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 was met
Not met - no sufficient cause, no proof of the missing file, and the application was filed after unexplained delay of about two months from the order sought to be reviewed
The Applicant relied on sufficient cause, attributing non-compliance to the Tribunal's failure to avail its file. The Respondent proved service of the mention notice. The Court found the Applicant's conduct throughout inconsistent with a desire to prosecute the appeal, the delay in filing the application unexplained, and no official communication proving the file was missing or under reconstitution.
Whether the annexures supporting the application were admissible and relevant
The annexures were neither commissioned nor sealed as required by Rule 9 of the Oaths and Statutory Declaration Rules, and their content referred to a different tribunal file between different parties, rendering the depositions inadmissible hearsay
Rule 9 of the Oaths and Statutory Declaration Rules (made under Section 6 of the Oaths and Statutory Declarations Act, Cap 15) requires exhibits to be sealed under the commissioner's seal and marked with serial letters. The annexures failed this test, and even if compliant, referred to Kisii (Migori) BPRT No. 51 of 2014 between the Appellant and Luore Management, not the file under appeal.
Whether the unexplained delay in filing the review application defeated it
Yes - the application dated 15/08/2024 was filed on 24/09/2024, more than a month after it was drawn and two months after the strike-out order, with no explanation and no indication when the Applicant learned of the adverse order
Review applications must be brought without unreasonable delay. The Applicant gave reasons for the delay in preparing the record of appeal but none for the delay in filing the review application itself, and did not state when and how he came to know of the order striking out the appeal if he was truly unaware of the mention date.
Legal principles established
#- An applicant for review must establish discovery of new and important matter, mistake or sufficient cause, and must make the application without unreasonable delay.
- A party alleging that a tribunal file is missing or being reconstituted must produce official communication proving it; bare depositions are mere imagination.
- Exhibits to affidavits must be securely sealed under the seal of the commissioner for oaths and marked with serial letters of identification; uncommissioned annexures render depositions inadmissible hearsay.
- Even where transfer between stations may change a file's registration number, the parties to a file cannot change; a complaint relating to a wholly different file and different parties cannot support a claim of sufficient cause.
Court orders
#- 1.The Application dated 15/08/2024 is dismissed
- 2.Costs to the Respondent
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review of the court's own orders striking out an appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Toncap Investment v LN Property Development Company Limited (Environment and Land Appeal E014 of 2023) [2025] KEELC 4265 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4265/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.