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ELCStruck OutChuka ELC Appeal (Marimanti SPMC E&L Case No 37 of 2017)· [2025] KEELC 4795 (KLR)

Thuraine v Laikuru & 3 others (Environment and Land Appeal E006 of 2023) [2025] KEELC 4795 (KLR)

Environment and Land Court
23 June 2025
3,392 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land appeal because the appellant skipped the required step of first asking the trial court to reinstate his dismissed suit.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Chuka against the dismissal, on 17/10/2023 by Hon Mbayaki Wafula PM at Marimanti, of the appellant's suit arising from a land adjudication dispute over parcel 1851 Nkondi 'A' Adjudication Section. The underlying suit, filed in the High Court in 2009, sought to annul the findings of the District Land Adjudication Officer as biased and to vest the land in the appellant. The suit was dismissed for non-attendance and want of prosecution after the appellant failed to appear in the afternoon of the hearing date and his advocate, though present, was not ready and offered no explanation for the client's absence. The appeal contended that the trial court erred in dismissing the suit and in refusing an adjournment. The ELC (B M Eboso J) framed two intertwined issues: whether the trial court properly declined an adjournment and dismissed the suit, and whether grounds existed to set aside the dismissal. The court held that under Order 12 rule 3(1) of the Civil Procedure Rules, dismissal may be averted only on good cause recorded by the court; none was shown. The court further held that the appellant's proper remedy was an application under Order 12 rule 7 to set aside the dismissal, with affidavit evidence explaining his absence, and that appealing without exhausting that remedy was premature. The appeal was struck out with costs to the appellant.

Key legal issues

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01

Whether the trial court properly declined an adjournment and dismissed the suit

Holding

Yes - no good cause was shown for the appellant's absence, so dismissal under Order 12 rule 3(1) was proper

Reasoning

The plaintiff was obliged to attend court and tender evidence. After a last adjournment granted in the morning, the appellant failed to attend in the afternoon and his advocate offered no explanation for the absence. Order 12 rule 3(1) requires good cause, to be recorded by the court, before a suit is spared dismissal. In the absence of any explanation, the trial court had no basis for a further adjournment and properly dismissed the suit.

p. 7
02

Whether the appeal was properly before the court

Holding

No - the appeal was premature because the appellant did not first invoke Order 12 rule 7 to seek setting aside of the dismissal

Reasoning

Order 12 rule 7 provides a platform for a party whose suit has been dismissed to apply for setting aside upon just terms, tendering affidavit evidence explaining the absence. Only if dissatisfied with the trial court's ruling on such an application could the appellant appeal. Because the appellant bypassed that remedy without explaining his absence, the appellate jurisdiction was invoked prematurely and the appeal had to be struck out.

p. 7

Legal principles established

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  • A dismissal under Order 12 rule 3(1) may only be avoided where good cause is shown and recorded by the court
  • Before appealing against a dismissal under Order 12 rule 3(1), a party must first seek setting aside of the dismissal under Order 12 rule 7; an appeal without that step is premature
  • The duty of a first appellate court is to re-evaluate the evidence afresh and reach its own conclusions

Court orders

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  1. 1.The appeal is struck out for having been lodged prematurely
  2. 2.The appellant shall bear costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 rule 3(1)
  • Civil Procedure RulesOrder 12 rule 7
  • Civil Procedure ActSection 27
  • Land Adjudication ActSection 26

Cases cited (3)

  • Susan Munyi v Keshar Shiani
    (2013) eKLR
  • Abok James Odera t/a A. J Odera & Associated v John Patrick Machira t/a Machira & Co Advocates
    (2013) eKLR
  • MSA v KMKA
    Civil Application No E123 of 2014 eKLR
On appeal from
Principal Magistrate's Court at Marimanti
Marimanti SPMC E&L Case No 37 of 2017
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Principal Magistrate's Court (Environment and Land jurisdiction)

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, "Thuraine v Laikuru & 3 others (Environment and Land Appeal E006 of 2023) [2025] KEELC 4795 (KLR)", Case Analysis (2025). Chuka ELC Appeal (Marimanti SPMC E&L Case No 37 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4795/eng@2025-06-23

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