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ELCDismissedKitale ELC Appeal No. E001 of 2026· [2026] KEELC 3677 (KLR)

Sambasi & 2 others v Koros & another (Environment and Land Appeal E001 of 2026) [2026] KEELC 3677 (KLR)

Environment and Land Court
17 June 2026
818 words in judgment
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The bottom line

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Kenya's Environment and Land Court declined to strike out a delayed land appeal, giving the appellants 45 days to file their record instead.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale on a notice of application dated 8/12/2025 in which the respondents sought to strike out an appeal filed by way of memorandum of appeal dated 2/4/2025, for want of prosecution. The applicants deposed that the memorandum of appeal was never served within seven days of filing or at all, that the appellants had neither applied for nor paid for typed proceedings which had been available since 16/7/2025, that no decree had been extracted, and that the record of appeal ought to have been filed within sixty days of certification of the proceedings (by 15/9/2025). They alleged the appeal was an abuse aimed at delaying execution of a judgment dated 12/3/2025 over agricultural land from which the appellants had extracted murram. The appellants, who did not file a replying affidavit but appeared in person through the 2nd appellant, pleaded for more time, expressing regret for the delay. The court noted the appeal had been admitted for hearing on 7/10/2025, that the application was filed before the expiry of the three-month period after which the respondents could have listed the appeal or sought striking out, and that striking out is a draconian step to be exercised sparingly. The court further found no stay of execution or extracted decree was in place, so no prejudice to the respondents was demonstrated. Balancing the constitutional right of appeal against the delay, the court declined to strike out the appeal and instead directed the appellants to file and serve a record of appeal within 45 days. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the appeal should be struck out for want of prosecution under Order 42 Rule 35

Holding

The application was dismissed; striking out was declined and substituted with a direction to file the record of appeal within 45 days

Reasoning

The court noted that Order 42 Rule 35 outlines the conditions for dismissal of an appeal for want of prosecution. The appeal had been admitted for hearing on 7/10/2025, and the application was filed before the expiry of the 3-month period within which the respondents could have sought striking out. Given the constitutional right of appeal, the inordinate delay, the appellants' in person status and their expression of regret, the court opted to give the appellants a final opportunity rather than strike out the appeal.

p. 4
02

Whether the respondents were being prejudiced in realizing the fruits of their judgment

Holding

No prejudice was established as there was no stay of execution and no decree had been extracted and served

Reasoning

The respondents alleged that the appeal was being used to delay execution of the judgment dated 12/3/2025, which required the appellants to pay general damages and restore agricultural land from which murram had been extracted. The court found there was no stay of execution of that judgment and no extracted decree had been served on the appellants, so the claim of prejudice was not made out.

p. 4

Legal principles established

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  • Striking out a suit or pleadings is a draconian step to be exercised sparingly
  • A party has a basic right to be heard before any adverse action or decision is taken against them
  • A respondent may, after 3 months from admission of an appeal, list it for hearing or apply for striking out for want of prosecution

Court orders

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  1. 1.The application dated 8/12/2025 seeking to strike out the appeal is dismissed
  2. 2.The appellants to file and serve a record of appeal within 45 days from the date of the ruling
  3. 3.No order as to costs
Jurisdiction invoked
Appellate jurisdiction under Order 42 of the Civil Procedure Rules (appeal transferred from the High Court, Kitale, to the ELC)

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, "Sambasi & 2 others v Koros & another (Environment and Land Appeal E001 of 2026) [2026] KEELC 3677 (KLR)", Case Analysis (2026). Kitale ELC Appeal No. E001 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3677/eng@2026-06-17

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