https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3677

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC APPEAL NO. E001 OF 2026** **JACOB SAMBASI** **ARAHAM MWALE** **PETER KIBIWOTT TALAM------------------------------------APPELLANTS** **VERSUS** **RUTH KANDIE KOROS** **JAMES KIPKEMBOI KOROS-----------RESPONDENTS/APPLICANTS** **RULING** 1. The court, by an application dated **8/12/2025**, is asked to strike out the appeal filed through a memorandum of appeal dated **2/4/2025**. The reasons are contained on the face of the application and in a supporting affidavit sworn by James Kipkemboi Koros on **8/12/2025**. 2. It is deposed that despite filing the memorandum of appeal on **2/4/2025**, the same was never served upon the respondents within **7** days from the date of filing or at all. Equally, it is deposed that the appellants have never applied for nor paid for the typed proceedings as required by the law, despite the same having been available for collection, since **16/7/2025**. 3. The respondents depose that the appellants have also not extracted a decree and availed it before this court. Furthermore, the respondents depose that the appellants should have, by now, complied, filed, and served upon them with the record of appeal within **60** days from the date when the typed proceedings were certified, that is, on or before **15/9/2025**. 4. In view of the foregoing, the respondents depose that the appellants are using this appeal as a means to delay and frustrate the decree holders from realizing and enjoying the fruits of their judgment, with no intention whatsoever to pursue the appeal. 5. The appellants were served with the application on **6/2/2026**, but they did not file a replying affidavit. 6. Nevertheless, the appellants appeared before the court during the hearing on **24/3/2026** through the 2nd appellant. The 2nd appellant told the court that the appeal was admitted for hearing on **7/10/2025** and that they were awaiting the court's directions. 7. The 2nd appellant pleaded for more time to prepare the record of appeal, since they were acting in person and did not understand the court procedures. Learned counsel Mr. Karani for the respondents urged the court to find that the delay of almost one year without action is inordinate, the respondents were being prejudiced, the subject matter is agricultural land which the appellants were supposed to restore to its original status, having extracted murram therefrom, leaving it unfilled, making the land unusable by the respondents. 8. In a rejoinder, the appellants expressed regret and were sorry for not taking action in fast-tracking the hearing of the appeal. The court record shows that this appeal was initially filed with the High Court of Kenya, Kitale, and was transferred to this court only on **23/2/2026**. **Order 42 Rule 35** of the Civil Procedure Rules outlines the conditions under which an appeal may be dismissed for want of prosecution. 9. Striking out a suit or pleadings generally has been termed as a draconian step to be exercised sparingly. See ***D.T. Dobie & Co. (K) Ltd. -vs- Muchina [1982] eKLR***. 10. The right of a party to be heard before any adverse action or decision is taken against them is so basic as held in ***Abbas Sherally & Another vs Abdul Fazaiboy Civil Appl. No. 33 of 2003*** as cited in ***Vishva Stone Supplies Co. Ltd -vs- RSR Stone [2006] Ltd [2020] eKLR***. 11. The court notes that the appeal was admitted for hearing on **7/10/2025**. The respondents had the option, after **3** months, to list the appeal for hearing or apply for striking out for want of prosecution. This application was filed before the **3** months had expired. 12. To give meaning to the constitutional right of appeal, and in the interest of justice, in lieu of striking out the appeal, I direct that the appellants do file and serve a record of appeal within **45 days** from the date hereof. 13. There is no stay of execution of the judgment dated **12/3/2025**. Equally, there is no extracted decree which was duly served upon the appellants to pay the general damages or restore the land to its initial status. Therefore, it is not true that the appellants are prejudicing the applicants in any way towards the realization of the fruits of their judgment 14. The upshot is that I dismiss the application dated **8/12/2025** with no order as to costs. 15. Orders accordingly. **Ruling dated, signed,** via **Microsoft Teams/Open Court** at **Kitale** on this **17th** day of **June 2026.**  **HON. C.K. NZILI** **JUDGE, ELC KITALE.** **Ruling delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **17th** day of **June 2026.** **In the presence of:** Court Assistant - Matui/Nancy 1st, 2nd, and 3rd appellants N/A for the 1st applicant/respondent James Kipkemboi Koros  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**