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ELCPartially AllowedKisumu ELC Appeal arising from Kisumu MC ELC No. 181 of 2018 (Memorandum of Appeal dated 16th December 2024)

Okello v Attorney General & 5 others (Environment and Land Appeal E107 of 2024) [2026] KEELC 234 (KLR)

Environment and Land Court
22 January 2026
2,018 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court reinstated a land suit wrongly dismissed without proper notice, even though the plaintiff had delayed for years.

What this practically means

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Executive summary

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The Appellant's suit, originally filed as KSM ELC Case No. 168 of 2017 and transferred to the Magistrates' Court at Kisumu, was dismissed for want of prosecution on 23rd November 2020 when both parties were absent at a mention date fixed by the court in their absence. By a Notice of Motion dated 27th August 2024 the Appellant sought to set aside that dismissal and reinstate the suit. By a ruling dated 9th December 2024 the trial court declined, finding the delay of two years and ten months unexplained and inexcusable. The Appellant appealed on the grounds that the dismissal was un-procedural and that the refusal to reinstate offended Articles 25 and 159 of the Constitution and Sections 1A, 3 and 3A of the Civil Procedure Act. The appeal was canvassed by written submissions; counsel for the Appellant relied on CMC Holding Ltd v Nzioki, Ivita v Kyumbu and Naftali Opondo Onyango v National Bank of Kenya Ltd, contending no notice to show cause under Order 17 was issued, while the 1st to 3rd Respondents, relying on Bilha Ngonyo Isaac v Kambu Farm Ltd and Shah v Mbogo, urged that reinstatement is discretionary and reinstatement would prejudice them. Asante J, applying Selle v Associated Motor Boat Co on the duty of a first appellate court, found the dismissal order was made ex parte without service of any notice to show cause as required by Order 17 Rule 2, and that a court fixing dates in the absence of parties must notify them. Although the delay was inexcusable, it did not justify the un-procedural dismissal. The court allowed the appeal, set aside the ruling of 9th December 2024, reinstated the suit on condition that the appellant take a hearing date within forty-five days failing which the suit stands dismissed, awarded costs of the application to the respondents, and ordered each party to bear own costs of the appeal.

Questions the Court framed

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

  1. 1.Whether or not the trial court erred in dismissing the application for setting aside the order dismissing the suit for want of prosecution

Key legal issues

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01

Whether the trial court erred in declining to set aside the order dismissing the suit for want of prosecution

Holding

The appeal was allowed; the dismissal order of 23/11/2020 was set aside and the suit reinstated on conditions

Reasoning

The order dismissing the suit was made ex parte when both parties were absent and no notice to show cause under Order 17 Rule 2 was served. Where a court fixes a date in the absence of parties, it must notify them. Although the appellant's delay of nearly four years was inexcusable, the delay did not justify the un-procedural dismissal. The discretion to reinstate was therefore wrongly declined by the trial court.

p. 5
02

Compliance with Order 17 Rule 2 of the Civil Procedure Rules before dismissing a suit for want of prosecution

Holding

No notice to show cause was given or served, so the dismissal breached Order 17 Rule 2(1)

Reasoning

Order 17 Rule 2(1) requires the court to give notice in writing to the parties to show cause why the suit should not be dismissed where no step has been taken for one year. There was no evidence any party applied for dismissal, none was present, and no notice to show cause was served on the appellant. The mention date of 23rd November 2020 was fixed by the court in the absence of the parties.

p. 4
03

Duty of a first appellate court

Holding

A first appeal is by way of retrial; the court re-analyses the evidence and draws its own conclusions

Reasoning

Relying on Selle & Another v Associated Motor Boat Company Limited and Others [1968] EA 123, the court stated it is obligated to re-analyse the material placed before the trial court and draw its own conclusions, though making due allowance for the fact that it did not see or hear the witnesses.

p. 3

Legal principles established

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  • Where the court gives a date for an activity in a matter in the absence of the parties, the court has the obligation to sufficiently notify the parties
  • Dismissal of a suit for want of prosecution without compliance with Order 17 of the Civil Procedure Rules (notice to show cause) is un-procedural and cannot stand notwithstanding delay by the applicant

Court orders

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  1. 1.The ruling of the trial court dated 9/12/2024 is set aside and substituted with an order allowing the application dated 27/8/2024
  2. 2.The order dated 23/11/2020 dismissing the suit for want of prosecution is set aside and the suit reinstated to hearing on condition that the appellant takes a date for hearing of the suit within forty-five (45) days hereof failing which the suit shall stand dismissed
  3. 3.Costs of the application dated 27/8/2024 are awarded to the respondents
  4. 4.Each party to bear own costs of the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Magistrates' Court at Kisumu (ELC)
Kisumu MC ELC No. 181 of 2018
Jurisdiction invoked
First appeal to the Environment and Land Court from the Magistrates' Court (appeal against ruling in Kisumu MC ELC No. 181 of 2018)

Relief refused

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Costs of the application dated 27/8/2024 sought by the appellant

Costs were instead awarded to the respondents despite reinstatement of the suit

p. 5

Costs of the appeal sought from the Respondent

Each party directed to bear own costs of the appeal

p. 5

Costs

Costs of the application dated 27/8/2024 awarded to the respondents; each party to bear own costs of the appeal

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.

The ruling of the trial court dated 9/12/2024 is set aside and substituted with an order allowing the application dated 27/8/2024 in the following terms
p. 5final orders - setting aside of trial court ruling
The order dated 23/11/2020 dismissing the suit for want of prosecution is set aside and the suit reinstated to hearing on condition that the appellant takes a date for hearing of the suit within forty-five (45) days hereof failing which the suit shall stand dismissed.
p. 5final orders - reinstatement of suit on conditions
Each party to bear own costs of the appeal.
p. 5final orders - costs
Where the court gives a date for an activity in a matter in the absence of the parties, the court has the obligation to suficiently notify the parties.
p. 4court's duty to notify parties of dates fixed ex parte
It is also clear that the trial court dismissed the suit for want of prosecution without compliance with the provisions of Order 17 of the Civil Procedure Rules.
p. 4non-compliance with Order 17 before dismissal
Although it is true that there was delay in bringing the application, the delay does not, in my view justify the un-procedural way in which the suit was dismissed.
p. 5delay does not cure un-procedural dismissal

Issues in the judgment

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minor

The judgment does not state the names of the parties anywhere; the case title and parties had to be described by role only

minor

The judgment contains two inconsistent accounts of the same mention: one that no party attended on 23rd November 2020, and another that the matter was mentioned five times in the absence of the parties

minor

Apparent typographical/date inconsistency: the memorandum of appeal is dated 16th December 2024 and appeals a ruling of 9th December 2024, but the record of appeal is dated 31st March 2025 and judgment delivered 22nd January 2026, while the parties' role labels shift between plaintiff/appellant

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, "Okello v Attorney General & 5 others (Environment and Land Appeal E107 of 2024) [2026] KEELC 234 (KLR)", Case Analysis (2026). Kisumu ELC Appeal arising from Kisumu MC ELC No. 181 of 2018 (Memorandum of Appeal dated 16th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/234/eng@2026-01-22

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