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ELCAllowedCivil Appeal No. 8 of 2017

Kasuki & 50 others v National Land Commission & 4 others (Environment and Land Appeal 8 of 2017) [2026] KEELC 4687 (KLR)

Environment and Land Court
21 July 2026
2,285 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kajiado's Environment and Land Court reinstated 51 appellants' land appeal over SGR compensation, finding delays excusable despite opposition claims.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kajiado (M.D. Mwangi, J) determines a Notice of Motion dated 18th December 2025 by the Appellants, Francis Kasuki & 50 Others, seeking to set aside an order of 2nd December 2025 by Justice David Mugo dismissing their appeal (Civil Appeal No. 8 of 2017) for want of prosecution, and to reinstate the appeal. The Applicants attributed the dismissal to a declined adjournment occasioned by the sudden exit of prior counsel and the current counsel's pre-scheduled examinations, and to former counsel's failure to file a list of surviving appellants. The 1st Respondent argued the application was an abuse of process and that the court was functus officio; the 2nd Respondent cited inordinate delay since 2015 and the finality principle. The Court framed a single issue: whether sufficient cause existed to set aside the dismissal and reinstate the appeal. It held that reinstatement applications invoke statutory jurisdiction under Order 12 Rule 7 and Sections 1A, 1B and 3A of the Civil Procedure Act, so functus officio does not bar the court. Applying Shah v Mbogo, Ivita v Kyumbu and Philip Chemwolo, the Court found the delay substantial but not deliberately orchestrated, and noted the appeal concerns land rights arising from compulsory acquisition for the Standard Gauge Railway, protected under Article 40 of the Constitution. The application was allowed; the dismissal order was set aside, the appeal reinstated, with 45 days to comply with pre-trial directions, failing which reinstatement lapses. Applicants bear the costs of the application.

Questions the Court framed

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

  1. 1.Whether the Applicants have laid a sufficient basis to warrant the setting aside of the order made on 2nd December 2025 dismissing the appeal for want of prosecution and whether the appeal ought to be reinstated for hearing on its merits

Key legal issues

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01

Whether the Court is functus officio after dismissing the appeal

Holding

No; where the law expressly grants a court jurisdiction to set aside or vary its own orders, functus officio does not preclude the exercise of that jurisdiction.

Reasoning

The doctrine of functus officio embodies finality: once a court conclusively determines a matter it cannot revisit it except as provided by law. However, Order 12 Rule 7 of the Civil Procedure Rules empowers the court, on application, to set aside or vary a dismissal, while Sections 1A, 1B and 3A of the Civil Procedure Act obligate courts to facilitate just resolution and preserve inherent jurisdiction. Reinstatement is therefore a statutory jurisdiction, not an appellate review of the court's own decision.

p. 3
02

Whether the Applicants demonstrated sufficient cause for reinstatement despite prolonged delay

Holding

Yes. Although the delay was substantial and inexcusable in part, the explanations disclosed no deliberate obstruction or bad faith, and the Respondents can be compensated by costs and strict timelines.

Reasoning

Applying the Ivita v Kyumbu test, the Court found the delay substantial and noted non-compliance with directions on identifying surviving appellants. However, the explanations - transition of counsel and pre-scheduled examinations - showed no deliberate intention to obstruct justice. The subject matter, land rights from compulsory acquisition for the Standard Gauge Railway, implicates Article 40 proprietary interests and ought to be determined on merits where the Respondents can be compensated by costs and strict timelines.

p. 4

Legal principles established

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  • An application seeking reinstatement of a matter dismissed for non-attendance or want of prosecution does not invite the Court to sit on appeal over its own judgment but invokes jurisdiction expressly donated by statute and the Rules, so functus officio does not apply.
  • The discretion to set aside dismissal orders is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct or delay the course of justice.

Court orders

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  1. 1.The Notice of Motion dated 18th December 2025 is allowed; the order of 2nd December 2025 dismissing the appeal together with all consequential orders is set aside and the appeal is reinstated for hearing and determination on its merits
  2. 2.The Appellants shall, within Forty Five (45) days from the date hereof, fully comply with all outstanding pre-trial directions, including filing and serving a verified list of the surviving Appellants and taking all necessary steps to regularize the record of appeal, where necessary
  3. 3.In default of compliance with Order (b) within the stipulated period, the orders of reinstatement shall stand discharged unless the Court otherwise orders upon application
  4. 4.The Applicants shall bear the costs of the present application, in any event

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 159 of the Constitution of Kenya, Sections 1A and 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules

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 Notice of Motion dated 18th December 2025 is hereby allowed; the order made on 2nd December 2025 dismissing the appeal together with all consequential orders is hereby set aside and the appeal is hereby reinstated for hearing and determination on its merits.
p. 5Final orders - reinstatement of appeal
The Applicants shall bear the costs of the present application, in any event.
p. 5Costs of the application
Justice shall be administered without undue regard to procedural technicalities.
p. 5Article 159(2)(d) overriding objective
The test is whether the delay is prolonged and inexcusable, and, if it is, can justice nevertheless be done despite the delay.
p. 4Test for delay - Ivita v Kyumbu
Blunders will continue to be made from time to time and it does not follow that because a mistake has been made, the party should suffer the penalty of not having his case determined on its merits.
p. 4Mistakes should not deprive a party of a hearing on the merits

Issues in the judgment

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minor

The 1st Respondent's Grounds of Opposition are stated as filed on 26th March 2026, while the 2nd Respondent's Replying Affidavit is stated as sworn on 5th March 2026; the application itself is dated 18th December 2025, with the ruling delivered in July 2026 - dates appear internally inconsistent with an application opposed before the year of filing had elapsed.

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, "Kasuki & 50 others v National Land Commission & 4 others (Environment and Land Appeal 8 of 2017) [2026] KEELC 4687 (KLR)", Case Analysis (2026). Civil Appeal No. 8 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4687/eng@2026-07-21

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