[2025] KEELC 66 (KLR)
The court found that the appellants had provided a sufficient and plausible explanation for their non-attendance, namely network challenges and counsel's engagement in another court. The court noted that the appeal was dismissed prematurely as the requirements of Order 42 Rule 35(2) had not been met, since one year...
Source-derived case information.
- Citation
- [2025] KEELC 66 (KLR)
- Parties
- Appellant: Joseph Wasike Chesika & 4 others; Respondent: Nathan Wekesa Kisika & 7 others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E007 of 2023
- Procedural Posture
- Environment and Land Appeal / Ruling on Application for Reinstatement of Dismissed Appeal
- Outcome
- application allowed; appeal reinstated
- Judges
- CK Nzili
- Legal Topics
- Reinstatement of Appeal, Dismissal for Want of Prosecution, Judicial Discretion, Order 42 Rule 35 Cpr, Substantive Justice, Delay and Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Wasike Chesika & 4 others
Appellant
Nathan Wekesa Kisika & 7 others
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application for Reinstatement of Dismissed Appeal
Legal Issues
- 1 Whether sufficient cause was shown to warrant reinstatement of the dismissed appeal.
- 2 Whether the dismissal for want of prosecution was premature under Order 42 Rule 35(2) of the Civil Procedure Rules.
- 3 Whether the respondents would suffer prejudice if the appeal is reinstated.
Ratio Decidendi
The court found that the appellants had provided a sufficient and plausible explanation for their non-attendance, namely network challenges and counsel's engagement in another court. The court noted that the appeal was dismissed prematurely as the requirements of Order 42 Rule 35(2) had not been met, since one year had not lapsed and directions had not been given. The respondents did not demonstrate any prejudice that would result from reinstatement, nor did they refute the appellants' explanation. The court exercised its discretion in favor of reinstatement, guided by the principles of substantive justice under Article 159(2)(d) of the Constitution and relevant case law. Consequently,...
Court Disposition
application allowed; appeal reinstated
Orders
- The application for reinstatement of the appeal is allowed.
- Costs of the application awarded to the respondents.
Full Case Text
Judgment text and source record
25 paragraphs
Chesika & 4 others v Kisika & 7 others (Environment and Land Appeal E007 of 2023) [2025] KEELC 66 (KLR) (21 January 2025) (Ruling)
Neutral citation: [2025] KEELC 66 (KLR)
Republic of Kenya
In the Environment and Land Court at Kitale
Environment and Land Appeal E007 of 2023
CK Nzili, J
January 21, 2025
Between
Joseph Wasike Chesika & 4 others
Appellant
and
Nathan Wekesa Kisika & 7 others
Respondent
Ruling
1. What is before the court is an application for reinstatement of an appeal dismissed on 22/5/2024, for want of prosecution. The reasons are contained on the face of the application dated 25/5/2024 and in a supporting affidavit of Mua Wambua Mark Advocate. The advocate avers that while a NTSC was served upon him, he had network challenges on the mention date. He says that he was also engaged in Nakuru Court of Appeal No. 124 of 2020, hence the non-appearance was not intentional.
2. Counsel says that there was an error apparent on the face of the record for one year had not lapsed for Order 42 Rule 35(2) C.P.R. to be invoked for the appeal to be ripe for dismissal, since directions had not been given.
3. Learned counsel says that it is in the interest of justice to reinstate the appeal, the applicants are yet to be supplied with the lower court proceedings, so as to file the Record of Appeal.
4. The applicants say that they stands to suffer more than the respondents if the appeal is not reinstated, otherwise they have filed the application without delay.
5. The application is opposed through a replying of Joseph Kamau sworn on 14/6/2024 on the following grounds:(1)That both counsels on record had been served with the NTSC.(2)That there was no representation for the appellants when the matter was called out.(3)That there are no good reasons warranting a review of the orders
6. The applicants rely on written submission dated 7/11/2024 and invite the court to be guided by the case law of Philip Chemwolo & Another -vs- Augustine Kubende [1986] eKLR.
7. To reinstate or not reinstate a dismissed appeal is a discretionary power of the court to be exercised judiciously. The guiding principles to consider were set out in Ngugi -vs- Thogo (Civil Application 373 of 2018) [2021] KECA 88 [KLR] (22nd October, 2021) (Ruling) and in Kihuyu Ndirangu -vs- Reuben Kinyanjui [2002] eKLR.
8. Sufficient and plausible cause for non-attendance must be shown. An explanation for the delay in compliance must be given. The basis of granting the relief must be clear. This court has to consider also Article 159 2(d) of the Constitution on substantive justice. Prejudice to the opposite party if reinstatement is granted has to be indicated by the respondents.
9. Applying the guiding principles, the applicants have given an explanation for non-attendance. The respondents have not refuted that explanation. The prejudice to be suffered by the respondents has not been indicated. The respondents have not said that the subject matter of the appeal has changed such that the reinstatement of the appeal would be in vain due to change of circumstances.
10. I therefore allow the application with costs to the respondents. Lower court file be availed. Mention before the Deputy Registrar on 6/2/2025.
RULING DATED, SIGNED AND DELIVERED AT KITALE THIS 21ST DAY OF JANUARY, 2025. HON. C.K. NZILIJUDGE, ELC KITALE.