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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal should be dismissed for want of prosecution
- 2.Whether the consent orders of 3rd October, 2024 in TAMU MCELC No. E004 of 2022 should be set aside
- 3.Who should bear costs of the application
Key legal issues
#Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35 of the Civil Procedure Rules
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
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.
Who bears responsibility for progressing the appeal
The appellant bears the burden of paying for proceedings and preparing the record of appeal
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.
Legal principles established
#- 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
#- 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.Failing compliance, the appeal shall stand dismissed for want of prosecution with costs to the Respondents (Applicants)
- 3.Costs of the present application are awarded to the Applicants (Respondents in the appeal)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
#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.
The appeal therefore qualifies for dismissal for want 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).
Costs of the present application are awarded to the Applicants herein (Respondents in the appeal). Orders accordingly.
Issues in the judgment
#The judgment does not state the appeal number of this matter, only the trial court case number (TAMU MCELC No. E004 of 2022)
The judgment is labelled 'RULING' though the brief treats it as the decision on the application dated 10th May, 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.