https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3376

Nyangweso v Ondiek & 2 others (Land Case Appeal E018 of 2025) [2026] KEELC 3376 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEELC 3376 (KLR) Republic of Kenya In the Environment and Land Court at Migori Land Case Appeal E018 of 2025 FO Nyagaka, J June 3, 2026 Between Hellen Achieng Nyangweso Appellant and Lucas Angonga Ondiek & 2 others & 2 others & 2 others & 2 others & 2 others & 2 others & 2 others Respondent Ruling 1.Before me is a Notice to Show Cause why this Appeal should not be dismissed for want of compliance with Order 24 Rules 2 and 11 of the Civil Procedure Rules. The basis of the Notice is that the Appellant filed the appeal against the Judgment of Hon. Chrispine Noel Choka Oruo SPM of Rongo ELC No. 17B OF 2022 dated 24th April 2025 delivered on 16th May, 2025. The appellant filed it on 12th June 2025. The Memorandum of Appeal erroneously indicated that the judgment was delivered a year earlier, that is, on 16th May 2024. 2.The Record shows that at the original file of the lower court was, in the intervening period, forwarded to this Court. Further, the record shows that the Deputy Registrar had written to the Principal Magistrate, Rongo Law Courts on 24th of June 2025 requiring him to forward typed certified copies of the proceedings and judgment, the decree and documentary exhibits produced in the file. 3.Having received the original file, on 10th July 2025 this Court issued a Notice to the Appellant to fix the appeal for directions under Order 42 Rule 11 of the Civil Procedure Rules. Further, in the Notice the court gave conditions that the Decree to the Judgment appealed from be filed within fifteen (15) days and the appeal be fixed for directions within 30 days of the notice failure of which a Notice to Show Cause for want of compliance would be issued. On 23rd July 2025 the appeal was placed by the Registry before the Judge for admission. Since the original court record had been received, upon admitting the Appeal the learned Judge directed that the Appellant complies with the Notice dated 10th July 2025 and then fixed the appeal for mention on 30th October 2025 to confirm compliance. 4.The record shows further that the Appellant filed the Decree on 16th July 2025. It shows further that on 23rd September 2025 the Appellant filed the Record of Appeal. 5.On the material date of 30th October 2025, the file was placed before the judge and by then no other step than ones mentioned above had been taken. It was then that the Notice to Show Cause which is before this court was issued, with further directions that it to be served by the Deputy Registrar on the parties. It was fixed hearing for the 27th of January 2026. On 27th of January 2026 the Appellants counsel attended court and prayed for fourteen (14) days to file an Affidavit showing cause why the Appeal should not be dismissed for want of compliance. The Notice to Show Cause was fixed for hearing on 6th February 2026 but came up on the 9th of February 2026 when the Appellant’s counsel attended court. He apologized for having filed the Affidavit showing Cause late, that is to say, only that morning. The Judge gave a date for the Ruling now being delivered. 6.Thus, it is clear that by the time the Notice to Show Cause was issued, the Appellant had filed the decree but not served both the Memorandum of Appeal and the Record of Appeal. 7.The Appellant opposed notice of dismissal of the appeal through an Affidavit sworn by her learned counsel on 9th February, 2026. In it he deposed that as learned counsel in the matter he was familiar with the facts of the appeal and had the requisite authority from the appellant to swear this affidavit on her behalf. He gave the summary of the background and filing of the appeal as captured above, and annexed a copy of the Memorandum of Appeal as AOK1 and the decree as AOK 2. 8.He then deposed that after the issuance of the decree they filed the Memorandum of Appeal on 22nd October 2025(sic). He explained that the delay in filing the Record of Appeal was occasioned by the fact that it took the appellant some time to pay the Advocate their fees and the court filing fees. Further, the office was also overwhelmed with office work because the counsel who had previously handled the matter resigned on the 16th day of September 2025. He annexed as AOK3 a copy of his letter of resignation. He added that the appellant had since served the record of appeal on all the respondents. He annexed as AOK4 a copy of the affidavit of service. He deponed that the appellant was desirous of prosecuting the appeal, believing it had an overwhelming chance of success. The appeal concerned a dispute over land, a highly emotive issue, and should therefore, in the interests of justice, it be heard and determined on its merits. Submissions None of the parties filed their submissions. Analysis and Determination 9.This court has considered the Notice to Show Cause why the appeal should not be dismissed. It is of the view that the main issue for determination is whether there is merit in the Notice. 10.It not in dispute that the Hon. Hon. Chrispine Noel Choka Oruo SPM delivered against the Judgment in Rongo ELC No. 17B OF 2022. What is, however, unclear is whether the appellant is not aware that it was delivered on 16th May, 2025 and not 16th May 2024, a year earlier. Be that as it may, and assuming that the date referred to was an error, the appeal against the judgment was filed it on 12th June 2025 which was within the time of appealing. It is also not in dispute that this Court received the original lower court file in readiness for the hearing of the appeal, and that the Court issued a Notice to the appellants on 10th July 2025 for her to fix the appeal for directions under Order 42 Rule 11 of the Civil Procedure Rules. It is also not in dispute that the appellant filed herein the decree of the lower court on 16th July 2025 as directed by the court. Further, that by the time the Notice to show cause was issued, although Record of Appeal had been filed, the appellant herself had neither moved the Court to fix the appeal for directions or acknowledged the same as had been given nor had she served the Record of Appeal upon filing it. 11.What appears to be in dispute is that the Memorandum of Appeal was filed on 22nd October 2025, the date deponed by learned counsel for the appellant. But the record is that the appeal was filed on 12th June, 2025. But it is also not in dispute that despite the Record of Appeal being filed on 23rd September 2025 it was not served on the Respondents until the 15th January 2026, the 20th January 2026 on the 3rd Respondent and both the 1st and 2nd Respondents respectively. By this time of service, the Notice to show cause had long been served on the appellant because the Mention Notice served by the appellant was dated 30th October 2025. That was about three months after knowledge of the date due, which was 27th January 2026. 12.The appellant, through learned counsel, blamed the inaction on his delay in paying the Advocate fees and the court filing fees. He also lay blame on a lot of work in the office due to the resignation of learned counsel who previously handled the matter. 13.This court has carefully considered the reasons given vis a vis the law regarding the conduct of appeals. It has also considered the record both at this stage and in the lower court.Order 42 Rule 2 provides that,“Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed.”Further, Order 42 Rule 11 provides,“A judge of the High Court shall, within thirty days of the filing of an appeal under section 79B of the Act, peruse the appeal and give directions in accordance with the provisions of section 79B of the Act.” 14.Additionally, Order 42 Rule 12 provides for the service of the Memorandum of Appeal within seven days of admission of the appeal. 15.The record herein shows, as stated above, that indeed this court endeavoured to make the parties to this appeal act within the timelines the law provides for. That was why upon issuing the directions on 10th July 2025 the same was notified of the appellant and he filed the Decree on 16th July 2025. What the appellant did not do then was to fix the application appeal for directions within 30 days as was directed on 10th July 2025. 16.This court then asks itself whether that failure would disentitle the appellant from a chance to prosecute this appeal. The court is of the considered view that that reason alone would be one that Article 159(2)(d) of the Constitution would cure hence he court excuse the party. However, this court has still to look at entire conduct of the Appellant in this matter so as to arrive at a just conclusion of the notice to show cause. 17.It is not in dispute that the judgment appealed against was delivered on 16th May 2025 and the instant appeal filed on 12th June 2025. The lower court record factual information or position which this court should consider as against the instant Notice to Show Cause also shows that immediately upon the delivery of the judgment, specifically on the 20th of May 2025, which was only four days later, learned counsel who now represents the Appellant in this matter filed, on behalf of one Johnson Otieno Adera who was named an aggrieved party, an application dated 20th May 2025 in that court. The said applicant brought it under 45 Rule 1 of the Civil Procedure Rules and Sections 3A and 80 of the Civil Procedure Act. 18.In the said application the applicant sought a review of the Judgment, and the setting aside thereof, and the consolidation of the suit with ELC No. 30B of 2023 wherein he, Johnson Adera, had sued Lucas Angonga Ondiek and others. The application was placed before the honorable Principle Magistrate on 21st May 2025. The trial magistrate gave directions that service of the same be done and it be heard on 17th June 2025. On the material date the applicant’s counsel indicated to the court that on 29th May 2025, the Environment and Land Court had stayed the execution of judgment in the trial Court matter, and that application was to be heard before the ELC on 16th July 2025. He thus sought that the application before the trial magistrate put in abeyance. The court did so and gave a mention date of the matter on 31st July 2026. It is still in abeyance. 19.It is worth noting that the learned counsel who represented the aggrieved party in the trial court is the same one who filed the instant appeal on behalf of the appellant and now represents her. The record shows that the trial court matter proceeded at first with the parties acting in person until 08th December 2023 when the 1st Defendant, now 2nd Respondent, appointed Mr. Oduk Advocate to represent him. The advocate would soon after, that is on, 11th April 2024 withdraw from acting. The lower court record shows then that at no point in time did Mr. Kenyatta represent the appellant in the trial Court until after judgment when he filed a Notice of Appointment of Advocates dated 19th May 2025 on the same date and then filed the application dated 20th May 2025 only a day after. Thus, he only began to represent her into this appeal from then on. 20.This Court has considered the reasons advanced vis a vis the record and the law. It has also considered that Order 45 Rule 1(2) permits a party who is not appealing to apply for a review of a judgment or order where the grounds for appeal is not common to that of the review sought. Therefore, it finds that although the aggrieved party had applied for a review of the judgment the instant appeal could still proceed to hearing if compliance is met, subject only to the common grounds of cancellation of the title in issue and fraud. That notwithstanding, this still leaves the court with the obligation of determining the merits of the facts given by the applicant. 21.It is worth noting that the applicant contends that the delay on their part was that the appellant delayed in paying them fees for the matter and for fling the appeal. Regarding this reason, this court notes that the instant appeal was filed in time. The only issues that arose were the inaction in taking the requisite steps as per Order 42 Rules 2, 11, 12 and 13 of the Civil Procedure Rules, to name a few. These did not require funds as would entitle the appellant to delay in taking them. Again, even if they would have done so, there is no evidence by way of deposition by the Appellant herself that she did not pay the requisite fees in time. The facts show the appellant did not wish to pursue the appeal, perhaps knowing, possibly through learned counsel who is acting for both her and the aggrieved party in the lower court, that there is an application for review of the judgment, hence adopting a wait and see attitude. This is because on 19th May 2025 the Appellant instructed counsel to Act for her and a day after the Aggrieved Party instructed him. Then on 12th June while counsel was acting for both filed the instant appeal. 22.Again, the appellant did not at any point in time disclose to this court that there was an application for review of the judgment although she and the Aggrieved Party have the same Advocate representing them and who has purported to show cause in that behalf. The deliberate inaction is shown by the facts as borne by the record that the decree was only filed after this Court ordered that is be. The appellant did not initially bother to file it without being prompted. 23.Be that as it may, and assuming that the benefit of doubt to her should be given for reason it late signing of the same, then the further facts show that the Record of Appeal was filed on 23rd September 2025 and despite there being a Notice to Show Cause in place and the appellant being aware of it as by 30th October 2025 she did not serve it until the last days of the hearing on 27th January 2026. Further, despite asking for 14 days to show cause, the same was not done until the last day of hearing on 6th February 2026 and done without leave of the Court. In essence the appellant is a party who can only rely on being cajoled by the Court all the time. 24.Furthermore, to me the appellant is either deliberately untruthful or has other cards hidden under the table and equity cannot condone that. This is because she either misled the trial Court that she had moved the ELC Court for stay of execution of the Judgment therein, and had been granted it, when she informed the court accordingly on 17th June 2025 or indeed she has a parallel file to this one running elsewhere wherein the stay of execution was granted and therefore pending therein and other proceedings going on. This is because in this appeal, the Appellant has neither filed an application for stay of execution nor ever been granted any stay of execution. However, when her learned counsel appeared before the trial Court on 17th of June 2025 he informed the court as follows,“On 29th May 2025 the ELC Court stayed the execution of judgment in this matter. The application for stay is coming for hearing on 16th July 2025. Our application for review can be held in abeyance pending the hearing of the ELC application in the High Court”. 25.None of these events referred to obtain in the instant file. Were it not that the original of the trial Court was not availed to this Court or the Record of Appeal filed, these untruths or hidden cards or confusion could not have come to the fore. 26.Their upshot is that there is no sufficient cause shown for the appeal to be spared of dismissal. But the appellant had no good reason for delay in action as required by law than deliberate inaction. In any event she has given inaccurate facts about the filing of the appeal. At any rate no reasons or good explanations have been given for the other delays in action noted above than mere deliberate inaction knowing that the appeal is being fought from another front: the review. The upshot is that therefore the appeal is dismissed for noncompliance. There shall be no orders as to costs.It is so ordered. RULING DATED, SIGNED AND DELIVERED VIA THE TEAMS PLATFORM THIS 3RD DAY OF JUNE 2026.HON. DR. IUR NYAGAKAJUDGEIn the presence of,Ms Opiyo State Counsel for the 3rd RespondentMr. Kenyatta Advocate for the AppellantNo appearance for the 1st and 2nd Respondent