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ELCPartially AllowedELC Appeal (Siaya), from ELC Case No. E010 of 2021, Siaya Principal Magistrate's Court

Adhiambo v Ochiel (Environment and Land Appeal E009 of 2025) [2025] KEELC 8065 (KLR)

Environment and Land Court of Kenya
20 November 2025
3,290 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Siaya's Environment and Land Court ruled a court cannot dismiss your application for skipping a mention, not a hearing, and sent it back for a fair decision.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Siaya against the ruling of Hon. Lester Simiyu, P.M. delivered on 14/4/2023 in ELC Case No. E010 of 2021, summarily dismissing the appellant's Notice of Motion dated 7/3/2023 which sought to set aside or vary a default judgment delivered on 27/4/2022, leave to file defence, and stay of execution. The application had been dismissed for non-compliance with directions issued on 10/3/2023 and for non-appearance of the parties on 12/4/2023. The appeal was canvassed by written submissions, with the appellant faulting the trial magistrate for misdirecting herself, breaching the right to be heard, and disregarding the contention that interlocutory judgment cannot issue in land matters absent a prayer for pecuniary damages. The respondent maintained the appellant was an indolent litigant repeatedly served, and that the decree had already been executed by cancelling his name in the register of L.R No. Siaya/Ojuando 'A#/1023 and substituting the respondent's. The court, guided by Section 78 of the Civil Procedure Act and Selle v Associated Motor Boat Co., found on the record that the applicant had fully complied with the directions by 29/3/2023, ahead of schedule, and that the respondent had filed a substantive response. It further held that the application was listed for mention, not hearing, so dismissal for non-attendance was unsupported by Order 12 Rule 1. Applying Mbogo v Shah, the court found the trial court's discretion was plainly misexercised, allowed grounds 1-6 of the appeal, remitted the application to the trial court for determination on its merits, and made no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the Trial Magistrate erred in law and fact by failing to exercise her discretion judiciously by summarily dismissing the applicant's application.
  2. 2.Whether the Learned Trial Magistrate abdicated her statutory duty in failing to address the substantial issues raised regarding the applicant's application thus causing a miscarriage of justice and arriving at a wrong verdict.
  3. 3.Whether the Learned Trial Magistrate failed to appreciate that under Order 10 Rules 4, 9, 6 and 10 of the Civil Procedure Rules, interlocutory judgment cannot issue in land matters unless the claim is accompanied by a prayer for pecuniary damages.
  4. 4.What orders as to costs.

Key legal issues

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01

Whether the trial court properly dismissed the application for non-compliance with directions

Holding

The dismissal was erroneous because the record showed the applicant had fully complied with the directions by 29/3/2023 and the respondent had filed a replying affidavit.

Reasoning

The court examined the record and found the order dated 9/3/2023 was served on the respondent's advocates on 29/3/2023, the defendant's written submissions were filed on 29/3/2023, and the plaintiff's replying affidavit was filed on 5/4/2023 - all within the timelines set on 10/3/2023. Compliance being established, the proper next step was to fix a ruling date, not to dismiss the application for non-compliance.

p. 6
02

Whether the application could be dismissed for non-attendance at a mention

Holding

No. The application had been scheduled for mention to fix a ruling date, not for hearing, so a substantive order of dismissal was unwarranted.

Reasoning

Order 12 Rule 1 permits dismissal where a suit fixed for hearing is called out and neither party attends. What was before the trial court was a mention, not a hearing. Further, both counsels were absent. The discretion to dismiss for non-attendance was therefore wrongly exercised, and since the appellant's discretion jurisprudence permits interference where the decision is plainly wrong, the appeal court intervened.

p. 6
03

The appropriate remedy upon finding the trial court's dismissal wrongful

Holding

The application should be remitted to the trial court for determination on its merits and a ruling rendered, rather than the appellate court determining the application itself.

Reasoning

Invoking Section 78 of the Civil Procedure Act, which empowers an appellate court to remand a case or determine it finally, the court chose remittal so that the application seeking to set aside the default judgment could be considered on its merits. The court expressly declined to determine the remaining issues, including the Order 10 argument on interlocutory judgment in land matters.

p. 7

Legal principles established

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  • An appellate court will only interfere with the exercise of discretion by a trial court where the discretion was exercised contrary to law, the trial court misapprehended the law, failed to take into account a relevant factor or took into account an irrelevant factor, or the decision is plainly wrong.
  • On a first appeal, the court has a duty to analyse and re-assess the evidence on record and reach its own independent decision.
  • An application listed for mention, not for hearing, cannot properly be dismissed for non-attendance; dismissal powers under Order 12 Rule 1 envisage a matter set down for hearing.

Court orders

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  1. 1.The appeal succeeds on grounds of appeal numbers 1-6
  2. 2.The application dated 7/3/2023 (dismissed by the trial court on 12/4/2023) is remitted to the trial court for consideration on its merits and a ruling to be rendered
  3. 3.There shall be no orders as to costs

The bench

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

majority

Wrote the judgment

On appeal from
Siaya Principal Magistrate's Court (ELC Case No. E010 of 2021)
ELC CASE NO. E010 OF 2021
Jurisdiction invoked
First appeal under Section 78 of the Civil Procedure Act

Relief refused

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Costs of the appeal

The court declined to grant costs despite allowing the appeal

p. 7

Costs

There shall be no orders as to costs.

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.

From the above documentation it is clear that the applicant plaintifi in the application had fully complied with the orders of the trial court by 29/3/2023 and which was ahead of time.
p. 6Compliance with court directions
It is noteworthy that the application had been scheduled for Mention and not for its hearing.
p. 6Dismissal for non-attendance at a mention
The trial courts decision to dismiss the application summarily was clearly wrong.
p. 6Interference with judicial discretion
The upshot of the foregoing is that the appeal succeeds on grounds of appeal numbers 1- 6. There shall be no orders as to costs.
p. 7Final orders and costs

Issues in the judgment

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minor

Internal inconsistency in dates: the plaint is said to be dated 25/4/2021 yet appearance was entered on 4/3/2021, and the request for judgment is dated 22/3/2022 while the respondent's submissions state it was filed on 23/03/2022; the mention notice is described as for 28/04/2022 in one passage and served on 24/4/2021 in the respondent's submissions.

minor

The application to set aside is referred to inconsistently as dated 7/10/2023 in one passage and 7/3/2023 elsewhere, and the ruling dismissing it is dated 12/4/2023 in the analysis while the grounds of appeal refer to a ruling delivered on the 14th day of April, 2023.

minor

Ground 8 and the appellant's submissions assert that service was never effected and that the defendant was sick, yet paragraph 2 of the judgment records that the defendant was duly served and did not appear at the hearing, an issue the court did not resolve.

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, "Adhiambo v Ochiel (Environment and Land Appeal E009 of 2025) [2025] KEELC 8065 (KLR)", Case Analysis (2025). ELC Appeal (Siaya), from ELC Case No. E010 of 2021, Siaya Principal Magistrate's Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8065/eng@2025-11-20

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