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ELCAllowedNot stated in the judgment (Appeal against BPRT Case No. E182 of 2023; Memorandum of Appeal dated 17th May, 2024)· [2026] KEELC 5263 (KLR)

Mwambweni v Nzaro (Environment and Land Appeal E004 of 2024) [2026] KEELC 5263 (KLR)

Environment and Land Court
29 June 2026
4,777 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court dismissed a landlord-tenant appeal for want of prosecution, rewarding a landlord kept waiting by years of delay and unfulfilled promises.

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 Kwale (L.L Naikuni, J) on a Notice of Motion dated 5th December, 2025 by Said Edward Nzaro, the Respondent in an appeal against a BPRT judgment of 16th April, 2024 in BPRT Case No. E182 of 2023. The BPRT had upheld a notice terminating the tenancy of the 1st Appellant and ordered payment of arrears of Kshs. 159,000 and mesne profits, dismissing the notice against the 2nd to 5th Applicants, with each party bearing its own costs. The Appellants appealed by Memorandum of Appeal dated 17th May, 2024 and a 110-page Record of Appeal filed 16th September, 2024, and obtained stay of execution on 29th July, 2024. The Respondent sought dismissal of the appeal for want of prosecution under Order 17 Rule 2 and Order 42 Rules 20 and 35 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act. The application was unopposed. The court traced a history of adjournments, failed undertakings to file a supplementary or fresh record of appeal, and the Appellants' non-appearance on 27th October 2025 and 19th November 2025. Applying Ivita v Kyumbu, Allan v Sir Alfred McAlpine, Naftali Onyango v National Bank and related authorities, the court found inordinate, inexcusable delay and prejudice to an elderly, ailing landlord deprived of rental income by the stay orders. Invoking Article 159(2)(b) and access-to-justice principles, the court allowed the application, dismissed the appeal for want of prosecution, and awarded the Respondent costs of both the application and the appeal.

Key legal issues

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01

Whether the appeal should be dismissed for want of prosecution

Holding

Yes. The appellants filed a Record of Appeal on 16th September 2024, then repeatedly failed to prosecute, sought amendments and a fresh record that never materialised, and did not appear on multiple mention dates despite the court extending leniency.

Reasoning

The court traced the procedural history, noting adjournments, a consent to file a fresh record of appeal that was never complied with, and non-appearance on 27th October 2025 and 19th November 2025. Applying Ivita v Kyumbu and Allan v Sir Alfred McAlpine, it found inordinate and inexcusable delay and likely prejudice to an elderly, ailing landlord deprived of rental income by stay orders. Invoking Article 159(2)(b) and the maxim that litigation must come to an end, the court dismissed the appeal.

p. 8
02

Whether the Respondent/Applicant was entitled to costs of the application and the appeal

Holding

Yes. Costs follow the event under Section 27(1) of the Civil Procedure Act; the successful applicant was awarded costs of both the application and the appeal.

Reasoning

The court restated that costs are discretionary and follow the event, citing Reids Heweet & Company v Joseph and Myres v Defries. Since the applicant had successfully established his case, the appellants were ordered to pay the costs of both the application and the dismissed appeal.

Legal principles established

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  • An appeal may be dismissed for want of prosecution where the appellant has shown inordinate, inexcusable delay and no sufficient cause, particularly after repeated indulgence by the court.
  • Costs follow the event under Section 27(1) of the Civil Procedure Act.
  • A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions.

Court orders

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  1. 1.The Notice of Motion application dated 5th December, 2025 be and is hereby found to be meritorious and hence allowed
  2. 2.The Appeal (Memorandum of Appeal dated 17th May, 2024 and 110 Pages Record of Appeal dated 16th September, 2024 against Said Edward Nzaro) be and is hereby dismissed for want of prosecution pursuant to Order 42 Rules 20 and 35 of the Civil Procedure Rules, 2010
  3. 3.Costs of the Notice of Motion application and the Appeal be awarded to the Respondent to be borne by the Appellant
On appeal from
Business Premises and Rent Tribunal, Mombasa
BPRT Case No. E182 of 2023
Jurisdiction invoked
Appellate jurisdiction over the BPRT decision under the Civil Procedure Act, Cap. 21 and Civil Procedure Rules, 2010 (Order 42); application brought under Order 17 Rule 2(1), Order 42 Rules 20, 35(2), Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Mwambweni v Nzaro (Environment and Land Appeal E004 of 2024) [2026] KEELC 5263 (KLR)", Case Analysis (2026). Not stated in the judgment (Appeal against BPRT Case No. E182 of 2023; Memorandum of Appeal dated 17th May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5263/eng@2026-06-29

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