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ELCAllowedNot stated in the judgment (appeal arising from Mbita ELC No. E010 of 2021; related appeal ELCA No. 9 of 2023)· [2025] KEELC 5363 (KLR)

Pius & 2 others v Odoyo (Environment and Land Appeal E052 of 2022) [2025] KEELC 5363 (KLR)

Environment and Land Court of Kenya
14 July 2025
NYNyagaka, Dr. Iur
1,834 words in judgment
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The bottom line

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Kenya's Environment and Land Court gave landowners another chance to file their appeal record after an honest mistake, showing courts value justice over strict deadlines.

What this practically means

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Executive summary

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This is a ruling by Hon. Dr. Iur Nyagaka, Judge of the Environment and Land Court, delivered on 14th July 2025 via the Teams platform, on the Appellants/Applicants' notice of motion dated 1st April 2025. The Applicants sought leave to file a Record of Appeal out of time and to set aside or vary the orders of 12th February 2025 directing parties to file written submissions on the appeal. The appeal was against a ruling by Hon. Nicodemus N. Moseti in Mbita ELC No. E010 of 2021 delivered on 21st September 2022. The Applicants' advocate explained that she had ceased acting, and that she later discovered another appeal, ELCA No. 9 of 2023, with similar parties had been filed by the firm of J.O. Otieno & Co. Advocates; the record of appeal was inadvertently omitted in the present file because the two matters were mistakenly taken to be consolidated, and the withdrawal of the other appeal left the present one 'bare'. The Respondent opposed, arguing inordinate delay of about 888 days, that numerous chances to file the record had lapsed since 3rd March 2023, that execution had already proceeded with the Applicants evicted on 8th June 2024, and that the application was a delaying tactic, relying on Fakir Mohammed v Joseph Mugambi and Habo Agencies Limited v Wilfred Odhiambo Musingo. The court treated the application as one for review under Order 45 Rule 1(1) of the Civil Procedure Rules, found that the omission was a new and important matter not within the applicant's knowledge, held the failure was not intentional, and in the interest of justice allowed the application. The Applicants were given 30 days to file the record of appeal, failing which the appeal stands dismissed; both parties were given 15 days to file submissions; the Respondent was granted leave to file a supplementary record of appeal if the Appellants' record was incomplete; the appeal was set for hearing on 14th October 2025; and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the court should set aside or vary its directions of 12th February, 2025 and grant leave to file the Record of Appeal out of time

Holding

The application was allowed; the failure to file the record of appeal was attributable to a mistaken belief that the appeal had been consolidated with ELCA No. 9 of 2023, which was a new matter not within the applicant's knowledge when the directions were issued.

Reasoning

The court framed the application as one for review under Order 45 Rule 1(1). Review lies on discovery of new and important matter not within the applicant's knowledge despite due diligence, on error apparent on the face of the record, or for other sufficient reason. The court found that the advocate who was on record when the 30-day direction was made had ceased acting, and the party believed the record filed in the withdrawn appeal sufficed because the appeals were mistakenly taken as consolidated. Upon withdrawal of ELCA No. 9 of 2023, the present appeal was left 'bare', revealing the omission. The failure was found unintentional, and the court exercised its discretion in the interest of justice.

p. 4

Legal principles established

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  • An application for review of an order may be founded on discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, applied for without unreasonable delay.
  • Where failure to comply with a court direction was inadvertent and not intentional, the court may in the interest of justice exercise its discretion to allow compliance with a time limit, attaching a default sanction of dismissal.

Court orders

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  1. 1.The application dated 1st April, 2025 is allowed as prayed
  2. 2.The Applicants are granted 30 days to file their Record of Appeal, failing which the appeal stands dismissed
  3. 3.The Appellants have 15 days to file submissions and the Respondent has 15 days
  4. 4.Leave granted to the Respondent to file a supplementary record of appeal in case the Appellants' record is not complete, to be done with the submissions
  5. 5.Hearing of the Appeal set for 14th October, 2025
  6. 6.Each party to bear its own costs
On appeal from
Chief Magistrates' Court at Mbita (Environment and Land)
Mbita ELC No. E010 of 2021
Jurisdiction invoked
Inherent discretion of the court and Order 45 Rule 1(1) of the Civil Procedure Rules for review of orders

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, "Pius & 2 others v Odoyo (Environment and Land Appeal E052 of 2022) [2025] KEELC 5363 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal arising from Mbita ELC No. E010 of 2021; related appeal ELCA No. 9 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5363/eng@2025-07-14

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