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ELCAllowedAppeal No. E004 of 2021 (Notice of Motion dated 25th March, 2025)· [2025] KEELC 8279 (KLR)

Kyuvi v Kwinga & another (Environment and Land Appeal E004 of 2021) [2025] KEELC 8279 (KLR)

Environment and Land Court
27 November 2025
EOE. O. Obaga
1,461 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Obaga J) determines a notice of motion dated 25th March, 2025 in which the Appellant/Applicant sought setting aside of orders made on 23rd January, 2025 striking out the memorandum of appeal, reinstatement of the appeal, and deeming of the record of appeal as duly filed. The Applicant explained that the ruling and directions of 16th October, 2024 were not diarized by counsel's office staff, and counsel was on leave when the matter came up on 23rd January, 2025, producing a diary extract confirming the matter was not listed. The Respondents opposed, arguing the appeal had already been dismissed once and reinstated, that the Applicant had been indulged before, and that the matter should proceed to the National Land Commission for investigations regarding parcels 300A and 300B Emali. The court framed a single issue: whether the Applicant met the threshold for the orders sought. Holding that it has a wide discretion to set aside its own orders to be exercised judiciously, the court found sufficient cause shown: the non-attendance resulted from counsel's leave and failure of diary management, not intent to overreach, and a record of appeal had already been filed. The court accepted the Applicant's submission, anchored in Philip Chemwolo, that blunders by advocates should not bar a party from being heard. The application was allowed in terms of prayers 2 and 3; the appeal was reinstated and admitted to hearing, with directions on filing submissions, mention on 4th February, 2026, and costs in the cause.

Key legal issues

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01

Whether sufficient cause was shown for counsel's non-attendance on 23rd January, 2025 to justify setting aside the orders striking out the memorandum of appeal

Holding

Sufficient cause was shown: counsel was on leave and the matter had not been diarized, as evidenced by the diary extract, and the record of appeal had already been filed.

Reasoning

The court noted it has a wide discretion to set aside its orders, to be exercised judiciously. Counsel's failure to attend was due to being on leave and the matter not being diarized, confirmed by the diary extract for 23rd January, 2025. The appeal had not been dismissed a second time as the Respondents claimed, since the ruling of 16th October, 2024 found the appeal was never dismissed. As a record of appeal had been filed, albeit late, the Applicant should be allowed to urge the appeal, applying the broad equity approach in Philip Chemwolo.

p. 3

Legal principles established

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  • The court has a wide discretion to set aside its own orders, to be exercised judiciously.
  • A mistake by counsel should not be visited upon the client by depriving the party of a hearing.

Court orders

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  1. 1.Setting aside the orders of 23rd January, 2025 striking out the Memorandum of Appeal and reinstating the appeal (prayer 2)
  2. 2.Deeming the record of appeal as duly filed (prayer 3)
  3. 3.The appeal is admitted to hearing
  4. 4.Appellant to file and serve written submissions within 21 days
  5. 5.Respondents to file their submissions within 21 days of being served
  6. 6.Mention on 4th February, 2026
  7. 7.Costs of the application to be costs in the cause
On appeal from
Lower court (magistrates' court)
Jurisdiction invoked
Inherent discretion of the court to set aside its own orders (appeal pending before the Environment and Land Court)

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, "Kyuvi v Kwinga & another (Environment and Land Appeal E004 of 2021) [2025] KEELC 8279 (KLR)", Case Analysis (2025). Appeal No. E004 of 2021 (Notice of Motion dated 25th March, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8279/eng@2025-11-27

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