Abade & another v Onyango & another (Environment and Land Appeal E009 of 2024) [2025] KEELC 7380 (KLR)
The bottom line
#A Kenyan court reinstated an appeal dismissed over a late survey fee payment, ruling that a short, explained delay cannot defeat substantive justice when the other side acted in bad faith.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellants' failure to pay their share of the survey fees within the court-ordered deadline justified dismissal of the appeal, and whether the dismissal should be set aside
The application was allowed; the dismissal was set aside and the appeal reinstated because the appellants gave sufficient reasons for the short delay and the respondents' conduct disentitled them from relying on it
The court found the appellants' delay was only a few days and attributable to circumstances including difficulties with the Ardhi Sasa portal. It further found that after the dismissal the respondents withdrew their own survey fee payment and moved against the appellants, showing bad faith. Under Article 159(2)(d) and the clean hands doctrine, reinstatement served substantive justice.
Whether the respondents' conduct of withdrawing survey fees paid after the dismissal constituted abuse of court process
Yes; the court held the respondents were not acting in good faith and were misusing the court's process
The 1st Respondent had urged survey as a settlement mechanism, paid his share, and even offered to pay the appellants' share, yet after dismissal he withdrew the payment, filed related costs bills, and sought to lock the appellants out of both appeal and survey. The court characterised this as predatory conduct and refused to countenance misuse of its process.
Legal principles established
#- Courts are obligated to determine matters on substantive justice rather than technicalities
- In matters requiring the exercise of discretion, clean hands are a prerequisite to obtaining the orders sought
Court orders
#- 1.The Notice of Motion dated 1st July 2025 is allowed with costs to the applicants
- 2.The appeal dismissed on 30th June 2025 is reinstated
- 3.The parties to proceed to make their respective shares of the payments for the survey fees as required by the earlier orders of the court
- 4.The appeal to be mentioned on 9th December 2025 to confirm whether the survey exercise has been conducted and the report duly filed
- On appeal from
- Mbita Law Courts
- No. 10 of 2023
- Jurisdiction invoked
- Order 3 Rule 9A and Order 12 Rule 7 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abade & another v Onyango & another (Environment and Land Appeal E009 of 2024) [2025] KEELC 7380 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7380/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.