https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3063

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ENVIRONMENT AND LAND COURT APPEAL NO. E001 OF 2024** **GEORGE AKELLO OKONGO…………………….…………..APPELLANT** **VERSUS** **JARED OCHIENG OKONGO…………………………..…RESPONDENT** ***(Being an Appeal from the Ruling of Hon. CNC Oruo SPM, delivered on 14th November 2023 in Rongo PMELCC No. E003 of 2022)*** **JUDGEMENT** 1. Through a Notice of Motion Application dated 13th July 2023, the Appellant sought the following orders in the trial court; 2. **…Spent** 3. **That the honourable court be pleased to review, vary and set aside its ruling delivered on 21st July 2022 together with all consequential orders on such terms that are just in view of the circumstances of the case.** 4. **That the Honourable Court be pleased to reopen the Plaintiff’s case for de novo hearing on priority basis.** 5. The Applicant pleaded that his suit had been dismissed for want of prosecution, on 21st July 2022. Further, that the matter was dismissed on the aforementioned date after his former advocate Mr. Evance Odero Nyakwana stopped briefing him on its progress. He also learnt that the aforesaid advocate did not have a valid practicing certificate and was therefore not authorised to transact on behalf of clients. He urged that the mistake by an advocate should not visited upon the innocent and deserving litigant. Additionally, that the Defendant would not suffer any prejudice if the Application was allowed. 6. The Respondent opposed the Application vide an undated Replying Affidavit wherein he deponed that the due to the Applicants’ failure to undertake due diligence he was culpable. He pointed out that the documents filed and served were all drawn up and filed by Odero Nyakwana & Company Advocates. Since M/s Odero Nyakwana & Company Advocates was not authorised in the year 2022, all of these documents were invalid for purposes of the suit filed. He urged that the suit was fatally incompetent and urged the court to dismiss the Application. 7. The Appellant filed a Further Affidavit in response to the Replying Affidavit. He urged that at the time of instituting the suit, Mr. Evance Odero Nyakwana was operating his law firm office and offering all the legal services of an advocate. He had known the said advocate for many years and did not have any reason to doubt his competence and/or qualification. 8. He urged that the failure to have a practicing certificate did not invalidate the pleadings. Further, that the Defendant was not competent to draw any document but still proceeded and filed undated and unsigned response. He urged the court to expunge the response. 9. Upon considering the Application and the attendant responses, the trial court dismissed the Application with costs vide the ruling dated 13th November 2023. 10. Being aggrieved with the decision of the trial court, the Appellant instituted the present appeal vide a Memorandum of Appeal dated 16th February 2024 premised on the following grounds; 11. **The learned Magistrate erred in fact and in law in finding that 'no reasons had been given occasioning the 'delay' in filing the reinstatement Application.** 12. **The learned Magistrate erred in law and fact by failing to appreciate sufficiently or at all the reasons advanced in the impugned Application.** 13. **The learned Magistrate erred in law and fact in failing to appreciate sufficiently sections 1A, IB, 3A and s80 of the Civil Procedure Act, Order 51 (1) and Article 159(2) of the 2010 Constitution.** 14. **The learned Magistrate erred in law and fact by failing to take into account that the Applicant together with his family have been residing on the suit land since sometimes in 2013 and that by dismissing the suit, the court handed the Respondent a fertile ground to forcefully evict the Applicant.** 15. **The learned Magistrate erred in law and fact by failing to appreciate that the Applicant was an innocent party who had been disappointed by the previous advocate on record.** 16. **The learned Magistrate erred in law and fact by failing to appreciate that the mistakes of a counsel on record should not be visited upon the innocent litigant.** 17. The Appeal was canvassed by way of written submissions. The Appellant filed submissions dated 12th July 2025 through learned counsel while the Respondent filed his drawn and filed by him in person. **Appellants’ submissions** 1. Learned counsel for the Appellant submitted that reinstatement of a suit dismissed for want of prosecution is a discretionary remedy and not as of right, in any event, each case depends on its own circumstances. Being that the same is discretionary means that it is not strictly barred by the statute of limitations. He recalled the decision of the trial court and urged that the learned magistrate erred in fact since one year from the date of dismissal of the lower court suit would have begun on the 22nd of July 2023. That the same can also not be termed as an in ordinate delay depending on the circumstances. In all the instances, it is the advocate to be blamed as the issue in relation to the lacking practicing license by the advocate in the subordinate court was not known to him. 2. Learned Counsel urged that upon learning that his counsel on record did not have a valid practicing certificate, the Appellant immediately sought the aid of a new counsel. The plaintiff was not in court when the case was dismissed hence did not know of what transpired in court that day. He submitted that the mistakes of the counsel on record in the lower court matter should not be visited on a litigant unless both were out to mislead the court which was not the case here. He cited the case of Hellen Ngina Mutisya & another v Samson Njoroge Gochi (2016) in support of this submission. 3. He submitted that the Applicants presented valid reasons that his advocate on record for the lower court case did not have a valid practicing license and which led to his failure to participate at the trial. She urged that the documents drafted by the advocate in the lower court as valid, however, by practicing and attending the trial, the advocate on record would have been liable for professional misconduct. He pointed out that the learned magistrate held in his ruling that the plaintiff failed to prove the allegation that his advocate had no practicing certificate. However, evidence of the same is one that the court can take judicial notice of. In as much as that it would be reasonably be hard for the plaintiff to be aware of this fact, it is rather easy on the part of the court to confirm such an issue not as an obligation but in the interests of justice. 4. On whether the Learned Magistrate erred in failing to appreciate sufficiently sections 1A, 1B, 3A and 80 of the Civil Procedure Act, Order 51 (11 and article 159 (2) of the 2020 Constitution, counsel urged that the learned magistrate erred in not considering the overriding objectives set out in the cited legislation. He added that courts should exercise utmost restraint before dismissing any matter, especially one on reinstatement of a case dismissed for want of prosecution. He cited the case of **Utalii Transport Company Limited & 3 others v Nic Bank Limited & another [2014] eKLR** in this regard and urged that the learned magistrate erred in holding that such overriding objectives are insufficient to warrant the reinstatement of a case. He urged the court to allow the appeal with costs. 5. He urged that reinstatement of the suit will not in any way prejudice the Respondent in this appeal but will highly prejudice the Appellant if the same is not reinstated since he will both be evicted from where he currently stays and his rights to be heard denied in a single decision. **Respondents’ Submissions** 1. The Respondent submitted hat the Appeal is incompetent and liable to be struck out. He pointed out that pursuant to the Ruling in Migori ELCLMISC/E002/2024 dated 24th June 2024, the Appellant was granted leave to file the intended appeal within 14 days, which period expired on 8th July 2024. However, the Appellant filed the appeal on 24th July 2024. This was clearly outside the leave window granted to him, and without any fresh Application for extension of time. This rendered the appeal incompetent. 2. He urged that the Court, in the earlier ruling, specifically declined to deem the Memorandum of Appeal already filed as duly filed, instead granting express leave to file one within a defined window - which was not honoured. He urged that this non-compliance with court directions violated Article 159 (2) (b) of the Constitution regarding the requirement that justice shall not be delayed. It also frustrated the inherent judicial authority to control and enforce its own timelines. 3. The Respondent submitted that following the Appellant's withdrawal of proceedings in the lower court, the Respondent commenced arbitration pursuant to Article 50(1) of the Constitution and the Arbitration Act. On 22nd April 2024, a detailed Arbitral Award was rendered by an Arbitrator, thereby determining all issues in dispute between the parties. He urged that Section 32A of the Arbitration Act declares arbitral awards final and binding. Further, that the Appellant did not file any Application for setting aside the award under Section 35. That the 3-month statutory period expired on 22nd July 2024. Any proceedings attempting to revisit the same dispute, including this appeal, were barred by the doctrine of *res judicata*. 4. The Respondent submitted that the learned magistrate found the reasons for delay by the Appellant unconvincing and stated that the delay was inordinate. Further, that even if taken at face value, mistakes of counsel did not automatically entitle a litigant to reinstatement of a pleading, particularly where there is no diligence shown. He urged that the Appellant’s continuation in disregard for legal timelines even on appeal confirmed that the refusal to reinstate was correct. He prayed that the Appeal be dismissed with costs. **Analysis and Determination** 1. The duty of the court was laid down in **Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR**, where the court stated as follows- **“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”** 1. In **Williamson Diamonds Ltd and another v Brown [1970] EA 1**, the court held that: **“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.”** 1. Further, in **PIL Kenya Limited v Oppong [2009] KLR 442**, it was held that: **“It is the duty…of a first appellate court to analyze and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeking the witnesses and their demeanour and giving allowance for that”.** 1. Being an appeal arising from the application of the exercise of discretion by the trial court in an interlocutory application, and not the determination of the merits of the case through analysis of the law and evidence, the applicable principles have been stated in a number of authorities. In that regard, the appellate court has to consider whether exercised injudiciously and or proceeded on the wrong principles or included matters he ought not to have included or failed to take into account some he ought to have considered. Thus, in **Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] KECA 373 (KLR)** the court held as follows: ***“…Thus, where a trial Court has exercised its discretion on costs, an appellate Court should not interfere unless the discretion has been exercised injudiciously or on wrong principles. Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute “good reason” within the meaning of the rule”.*** 1. Further, in **Supermarine Handling Services Ltd versus Kenya Revenue Authority [2010] eKLR (Civil Appeal 85 of 2006)** the Court stated :- ***“… Thus, where a trial Court has exercised its discretion on costs, an appellate Court should not interfere unless the discretion has been exercised injudiciously or on wrong principles. Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute “good reason” within the meaning of the rule*”.** 1. Similarly, in **Farah Awad Gullet v CMC Motors Group Limited [2018] eKLR** the Court of Appeal held that: ***“…the Court of Appeal, in interfering with the exercise of discretion of the trial Judge appealed from, ought to satisfy itself that the exercise of that discretion either way was improper and therefore warrants interference.”*** 1. Moreover, in **Edward Sargent versus Chotabha Jhaverbhat Patel [1949] 16 EACA 63**, it was held that there is no bar to an appeal lying to an Appellate Court against an order made in the exercise of judicial discretion, but for the Appeal Court to interfere only if it be shown that the discretion was exercised injudiciously. 2. Also, in **Mbogo and Another v Shah [1968] EA 93** at **96** the court held: **“*For myself I like to put it in the words that a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has*** ***misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been mis-justice.”*** 1. Additionally, in **Agola v Ngodhe (An administrator to the Estate of Zakayo Ngodhe) (Environment and Land Appeal E025 of 2024) [2025] KEELC 1367 (KLR) (6 March 2025) (Judgment),** this court stated; ***“As for the instant appeal, it is clear that it arose from the low court’s exercise of discretion. Regarding appeals of such nature, the appellate court will not normally interfere with the discretion of the trial court unless the trial magistrate or judge exercised the discretion wrongly, injudiciously or misdirected himself in some matter thereby arriving at a wrong decision, the decision clearly wrong.”*** 1. Moreover, in **Nyaoke & 7 others v Ayaga (Environment and Land Appeal E024 of 2024) [2025] KEELC 7345 (KLR) (28 October 2025) (Judgment)** this court held, ***“Again, it is worth of note that this is an appeal that challenges the exercise of discretion by the trial court. The principles that govern the instances that an appellant court may interfere with a decision arrived at by exercise of discretion by a court appealed from are now settled. This court must be cautious in deciding to interfere with the discretion of the trial court. If I must do so, I should*** ***not substitute my decision with the that of the trial court. I must consider and find, if I have to overturn that decision, that the trial court failed to act judiciously or was plainly wrong on principles that he proceeded on or considered or failed to consider factors which he ought not or ought to have considered, respectively.”*** 1. Lastly, Madan, JA (as he then was) captured the principle more succinctly, in **United India Insurance Co. Ltd vs East African Underwriters (Kenya) Ltd (1985) EA 898,** as follows: **"The court of appeal will not interfere with the discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to various factors in the case. The court of appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account or fifthly, that his decision, albeit a discretionary one, is plainly wrong."** 1. The decisions above settle the legal and factual elements this court is obligated to consider. In the instant appeal, the orders that the Appellant seeks to have this court interfere with are discretionary orders. Thus, the issue arising for determination herein is **Whether the trial court erred in dismissing the Application dated 13th July 2023.** 2. Before an Appellate court can interfere with the same, it must be satisfied that the trial magistrate misdirected himself in some matter and as a result arrived at a wrong decision or that he misapprehended the law or failed to take into account some relevant matter. 3. The Application, which resulted in the impugned ruling sought orders for review and setting aside of the ruling of the trial court delivered on 21st July 2022 was dated and filed on 13th July 2023. That was a year later shy only nine days. 4. Review of orders or judgments is governed by Section 80 of the Civil Procedure Act which provides as follows: **“Any person who considers himself aggrieved:** **a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or** **b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”** 1. Order 45 of the Civil Procedure Rules reiterates the power of the court to review its own judgments or orders but proceeds to specify the circumstances under which the court may exercise its power of review. Order 45 Rule 1 (b) expressly provides that a court can review its judgment or order if an Applicant satisfies any of the following conditions: **(i) That he has discovered new evidence which after the exercise of due diligence was not within his knowledge or was not available at the time the order was made;** **(ii) That there was a mistake or error apparent on the face of the record; and** **(iii) That there is sufficient reason to warrant the review sought and that the Application had been made timeously.** 1. The Applicant filed the Application for review over a year after the impugned decision was delivered, unless explained, cannot be said to be timeous in any way shape or form. The Appellant did not explain what happened all that year period. He was not prudent to follow up on his matter for a year, if at all the allegations regarding the advocate he had instructed are truthful. 2. This Court has very carefully perused the said Application and the impugned decision. The trial magistrate was confronted with conflicting but clear facts regarding inaction and delay in the appellant (now) but Plaintiff then, in moving the court before the matter was dismissed for want of prosecution. Having considered those facts, I am in agreement with the trial court that the Application for review was filed without an appropriate explanation for the inordinate delay. The fact that an advocate did not have a practising certificate did not entitle the appellant to fail to move the court appropriately in time as the law requires, much as that was not the reason why the court dismissed the application. 3. It was not the responsibility of the advocate to follow up with the case alone. Instead, a party who is diligent had the duty to and will follow up often with his advocates to inquire what became of his suit of defence after it was in court. A party not acting on his matter or a matter lying inactive for a period as long as the one that caused the court to dismiss the suit without following up with the lawyer was greatly indolent or was inordinately slack in action. 4. In any event also, the instant appeal was instituted outside of the time limit granted for the same to be filed hence it was incompetent because no leave was sought to institute it out of time, the initial one having expired, and the appeal instituted about sixteen days afterwards. It is my considered view that the trial court correctly exercised its discretion, and also that this appeal was improperly instituted. Therefore, the upshot of the foregoing is that the Appeal lacks merit. It is dismissed with no order as to costs. 5. Orders accordingly. **JUDGMENT dated, signed and delivered virtually via the Teams Platform this 20th day of May 2026.** **HON. DR. IUR NYAGAKA** **JUDGE** **In the presence of,** Court Assistants: Ms. Lola Mr. Odongo, Okal Advocate for the Appellants Respondents Absent