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ELCDismissed· [2025] KEELC 5217 (KLR)

Vincent v Kotiani & another (Environment and Land Appeal E026 of 2023) [2025] KEELC 5217 (KLR)

Environment and Land Court
3 July 2025
ECE.C. Cherono
1,706 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Bungoma dismissed an application to set aside orders and stay judgment, finding two months of unexplained delay and inaction inexcusable.

What this practically means

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Executive summary

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The Respondents/Applicants filed a Notice of Motion dated 19/02/2025 seeking a temporary stay of execution of a judgment and the setting aside and review of a ruling delivered on 18/02/2025, which had dismissed their earlier application dated 19/12/2024 for want of prosecution. Their case, deposed by their advocate Wekesa Phinny Wanjala, was that the appeal was to be canvassed by written submissions but they were never served with the Appellant's submissions, and that counsel failed to attend the 18/02/2025 mention because she was unwell. The Appellant/Respondent opposed, describing the application as jumbled and misleading, and asserting the applicants had breached the court's orders by cutting trees and cultivating the suit land. The court, citing Shah v Mbogo, held that the discretion to set aside orders requires sufficient cause. Counsel's sickness claim was unsupported by any medical note or leave records, and the application was filed some two months after the impugned orders with no explanation, the delay being inordinate, unexplained and inexcusable. The court also noted no prayer had been made for reinstatement of the dismissed application, rendering the motion procedurally and substantively uncertain. On stay, the court found the applicants had 51 days to file submissions, had access to documents via the e-filing system, never sought to arrest the judgment, and exhibited clear indolence. The application was dismissed with costs.

Key legal issues

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01

Whether sufficient cause was shown to set aside the dismissal for want of prosecution of 18/02/2025

Holding

No. Counsel's claim of sickness was unsupported by documentary evidence and the application was filed about two months later with no explanation for the delay

Reasoning

The court held the discretion to review is wide but requires demonstration of sufficient cause. Counsel's sick-leave assertion lacked a medical note or leave approval records. Further, the ~two-month delay in filing the application was inordinate, unexplained and inexcusable. Additionally, the application sought to set aside the dismissal without seeking reinstatement of the underlying application, rendering it procedurally and substantively uncertain.

p. 3
02

Whether stay of execution of the judgment delivered on 14/11/2024 ought to issue

Holding

No. The stay prayer failed because it was pegged on the declined review; the applicant was indolent, having 51 days to file submissions and never moving to arrest the judgment

Reasoning

Directions for written submissions were taken on 23/09/2024 and judgment delivered on 14/11/2024, a span of about 51 days. The applicant never filed submissions, never sought an adjournment or application to arrest judgment, and pleadings are accessible through the e-filing system even absent service. The court found clear indolence and inaction.

p. 4

Legal principles established

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  • The discretion to set aside or review a decision is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay
  • A court of record cannot act on bare assertions; claims such as counsel's sickness must be supported by verifiable evidence

Court orders

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  1. 1.The Respondents' Notice of Motion dated 19th February 2025 is dismissed with costs

Authorities

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Cases cited (1)

  • Shah v Mbogo and Another
    [1967] EA 116
Jurisdiction invoked
Inherent jurisdiction of the court to review/set aside its own orders; application under the court's discretion to set aside orders for want of prosecution

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, "Vincent v Kotiani & another (Environment and Land Appeal E026 of 2023) [2025] KEELC 5217 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5217/eng@2025-07-03

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