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ELCDismissedNot stated in the judgment as extracted· [2025] KEELC 7291 (KLR)

Inganji & another v Museve (Environment and Land Appeal E032 of 2023) [2025] KEELC 7291 (KLR)

High Court of Kenya (appellate side, Kakamega)
16 October 2025
ANA. Nyukuri
1,518 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The High Court in Kakamega refused to revive an appeal, holding that knowing about your advocate's death for eight months is no excuse for missing deadlines.

What this practically means

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Executive summary

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This is a ruling on the appellants' notice of motion dated 28th February 2025 seeking to set aside orders of 26th February 2025 confirming the dismissal of their appeal for want of prosecution, to reinstate the appeal, and to extend time to file and serve the record of appeal. The appellants explained that their counsel, Mr. Onindo, died shortly after the dismissal orders, that they could not retrieve their file from the advocate's office, and that by the time they instructed new counsel the compliance period had lapsed; they relied on West Mont Holding and Philip Chemwelo to argue their mistake was excusable. The respondent opposed, showing that the appellants had been granted successive indulgences since 2023, including 60-day windows on 11th June 2024 (after the appellants first disclosed the advocate's death) and 22nd October 2024 with a default dismissal order, none of which were complied with. Applying section 95 of the Civil Procedure Act and the Supreme Court's criteria in Nicholas Kiptoo Arap Korir Salat v IEBC, the court found the appellants' explanation untrue on the record: they knew of the advocate's death eight months before dismissal and had never complied with a single court order. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the death of the appellant's advocate and consequent inability to retrieve the file constituted a good and sufficient reason to set aside dismissal of the appeal and extend time

Holding

No. The appellants knew of the advocate's death by 11th June 2024, were given multiple extensions including a final 60-day indulgence with a default dismissal order, and failed to comply on every occasion without justifiable cause.

Reasoning

The court traced the chronology from filing in 2023, showing repeated non-compliance on consecutive occasions. The explanation that the advocate died immediately after the dismissal orders was contradicted by the record. An eight-month unexplained delay from June 2024 to February 2025 demonstrated lack of intention to prosecute the appeal, so the Salat criteria, particularly explanation of delay and absence of undue delay in bringing the application, were not satisfied.

p. 4

Legal principles established

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  • The discretion to extend time must be exercised judiciously and not whimsically, and may only be granted where the applicant satisfactorily explains the delay
  • Extension of time is an equitable remedy available only to a deserving party, and the applicant bears the burden of laying a basis for it

Court orders

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  1. 1.The application dated 28th February 2025 is dismissed
  2. 2.Costs of the application to the respondent
Jurisdiction invoked
Section 95 of the Civil Procedure Act (inherent power to enlarge time); appeal from a subordinate court (specific court not identified in the judgment)

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, "Inganji & another v Museve (Environment and Land Appeal E032 of 2023) [2025] KEELC 7291 (KLR)", Case Analysis (2025). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7291/eng@2025-10-16

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