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ELCPartially AllowedNot stated in the judgment (orders refer to TAMU MCELC No. E004 of 2022)

Orayo v Aluoch & 2 others (Suing as Joint Administrators of the Estate of Onjong’a Ongodo - Deceased) (Environment and Land Appeal E035 of 2024) [2025] KEELC 7061 (KLR)

Environment and Land Court
16 October 2025
864 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan land appeal stalled for a year got one last 30-day chance: file the record of appeal now or lose the appeal automatically.

What this practically means

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Executive summary

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The Respondents/Applicants moved the Environment and Land Court at Kisumu by Notice of Motion dated 10th May, 2025 seeking dismissal of the Appellant's appeal for want of prosecution, setting aside of consent stay orders of 3rd October, 2024 issued in the trial court (TAMU MCELC No. E004 of 2022), and costs. They contended that the Appellant, having secured stay of execution before the trial court, lost zeal for the appeal, continued to enjoy mesne profits from the suit land and destroy property, failed to pay for typed proceedings as directed by the Deputy Registrar on 13th March, 2025, and thereby abused court process. The application was unopposed; the Appellant was served but filed neither a response nor submissions. Counsel for the Applicants relied on Article 50 of the Constitution, Order 42 Rule 35(1) and (2) of the Civil Procedure Rules, and authorities including Birkett v James and Eastern Produce Kenya Limited. The court found the appeal was filed on 21st June, 2024 and that since then the Appellant had taken no positive step, had not paid for proceedings, and had failed to attend court. The court held the appellant bears the burden of expediting the appeal and that the appeal qualified for dismissal. However, in the interest of justice, it directed the Appellant to file and serve the record of appeal within 30 days of service of the ruling, failing which the appeal would stand dismissed with costs to the Respondents. Costs of the application were awarded to the Applicants. The application for setting aside the trial court's consent orders was not addressed or granted.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal should be dismissed for want of prosecution
  2. 2.Whether the consent orders of 3rd October, 2024 in TAMU MCELC No. E004 of 2022 should be set aside
  3. 3.Who should bear costs of the application

Key legal issues

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01

Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35 of the Civil Procedure Rules

Holding

The appeal qualified for dismissal as the appellant took no positive step since filing the memorandum of appeal and did not pay for proceedings as directed, but the court granted a conditional 30-day window in the interest of justice

Reasoning

The record showed the appeal was filed on 21st June, 2024; on 13th March, 2025 counsel was directed to provide the receipt for payment of court fees for proceedings, which was never done, and the appellant failed to attend subsequent court appearances. The court accepted the appeal qualified for dismissal but, in the interest of justice, allowed 30 days to file and serve the record of appeal, failing which the appeal would stand dismissed with costs.

p. 3
02

Who bears responsibility for progressing the appeal

Holding

The appellant bears the burden of paying for proceedings and preparing the record of appeal

Reasoning

The court held that it is the appellant's duty to pay for typed proceedings, follow up on their preparation, and compile the record of appeal. There was no evidence the appellant took any of these steps, nor did he respond to the application or file submissions despite being served.

p. 2

Legal principles established

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  • The appellant bears the burden of moving the appeal to expeditious disposal by paying for proceedings, following up on typing, and preparing the record of appeal
  • An appeal in which the appellant has taken no positive step since filing the memorandum of appeal qualifies for dismissal for want of prosecution, though the court may grant a final indulgence in the interest of justice

Court orders

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  1. 1.The Appellant is directed to file and serve the record of appeal within 30 days of the date of service of the ruling upon the Appellant
  2. 2.Failing compliance, the appeal shall stand dismissed for want of prosecution with costs to the Respondents (Applicants)
  3. 3.Costs of the present application are awarded to the Applicants (Respondents in the appeal)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court (Tamu)
TAMU MCELC No. E004 of 2022
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court (Order 42 of the Civil Procedure Rules); Article 50 of the Constitution invoked on fair hearing without unreasonable delay

Relief refused

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Immediate dismissal of the appeal for want of prosecution

The court, in the interest of justice, gave the Appellant a final window of 30 days to file the record of appeal instead of dismissing the appeal outright

p. 3

Setting aside of the orders of 3rd October, 2024 in TAMU MCELC No. E004 of 2022

The court did not make any order setting aside the consent stay orders; no such order appears in the final orders

Costs

Costs of the present application are awarded to the Applicants herein (Respondents in the appeal); upon default the appeal shall stand dismissed with costs to the Respondents (Applicants).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Appellant has the burden to move the process for expeditious disposal of the appeal by paying for the proceedings and following up on typing of the same and preparation of the record of appeal.
p. 2Burden on appellant to prosecute appeal
The appeal therefore qualifies for dismissal for want of prosecution.
p. 3Want of prosecution
However, for the interest of justice the court hereby directs the Appellant to file and serve record of appeal within 30 days of the date of service of this ruling upon the Appellant, failing which the appeal shall stand dismissed for want of prosecution with costs to the Respondents (Applicants herein).
p. 3Final orders - conditional extension
Costs of the present application are awarded to the Applicants herein (Respondents in the appeal). Orders accordingly.
p. 3Costs order

Issues in the judgment

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minor

The judgment does not state the appeal number of this matter, only the trial court case number (TAMU MCELC No. E004 of 2022)

minor

The judgment is labelled 'RULING' though the brief treats it as the decision on the application dated 10th May, 2025

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, "Orayo v Aluoch & 2 others (Suing as Joint Administrators of the Estate of Onjong’a Ongodo - Deceased) (Environment and Land Appeal E035 of 2024) [2025] KEELC 7061 (KLR)", Case Analysis (2025). Not stated in the judgment (orders refer to TAMU MCELC No. E004 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7061/eng@2025-10-16

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