Odongo & 3 others v Onyango (Environment and Land Appeal E014 of 2023) [2026] KEELC 3277 (KLR)
The bottom line
#Homa Bay's Environment and Land Court refused to revive a land appeal dormant for two years, ruling unexplained inaction amounts to abandoning your own case.
What this practically means
#Executive summary
#Key legal issues
#Whether the order dismissing the appeal for want of prosecution on 1st April 2025 should be set aside
The application fails; the Applicants did not demonstrate sufficient cause for the delay in prosecuting the appeal
The court applied Order 42 Rule 35 as read with Order 12 Rule 7 and Section 3 of the Civil Procedure Act, importing the principles for setting aside dismissal. Although the 1st Appellant died on 2nd October 2024, the appeal had lain dormant since 19th July 2023, long before her death. The Applicants gave no evidence of any communication from their advocate excusing non-attendance, only moved after eviction notices were served, and failed to follow up their own appeal despite being separate parties with equal interests. The delay of two years was inordinate and unexplained.
Whether the Applicants were entitled to a stay of execution pending the appeal
Stay was refused as the application was dismissed in its entirety
The Applicants relied on Order 40 Rule 6 and the case of Kedoki & another v Nchoe, urging substantial loss and absence of unreasonable delay. The Respondents countered that there was no merit or triable issues in the appeal and that they had complied with Section 152E of the Land Act. Having found the explanation for the dismissal of the appeal insufficient, the court found no merit in the entire application, including the stay and substitution prayers.
Legal principles established
#- There is no provision for reinstatement of an appeal dismissed under Order 42 Rule 35, but Order 12 Rule 7 gives the Court discretion, in the interests of justice, to set aside an order of dismissal of a matter not set down for hearing within the provided timelines
- Where a plaintiff or appellant takes no steps at all in the case and gives no reason for the delay, courts will not hesitate to dismiss the matter even absent demonstrated prejudice
Court orders
#- 1.The Notice of Motion dated 25th November 2025 is dismissed with no order as to costs
- On appeal from
- Ndhiwa Principal Magistrate's Court
- Ndhiwa PMC Land Case No. E023 of 2021
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act (Cap 21) and Order 51 Rule 1, Order 9 Rule 9, Order 12 Rule 6, Order 22 Rule 25, Order 8 Rule 3, Order 1 Rule 10 and Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odongo & 3 others v Onyango (Environment and Land Appeal E014 of 2023) [2026] KEELC 3277 (KLR)", Case Analysis (2026). ELCA E014 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3277/eng@2026-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.