Lokoel v Aberun & another (Environment and Land Appeal E001 of 2024) [2026] KEELC 2941 (KLR) (14 May 2026) (Ruling)

Lokoel v Aberun & another (Environment and Land Appeal E001 of 2024) [2026] KEELC 2941 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2941 (KLR) Republic of Kenya In the Environment and Land Court at Lodwar Environment and Land Appeal E001 of 2024 CK Nzili, J May 14, 2026 Between Wilson Ekaale Lokoel Appellant and Billy Aberun 1st Respondent Eliye Springs Limited 2nd Respondent Ruling 1.There are two applications in this file due for ruling. By an application dated 3/12/2025, the court is asked to find the respondent guilty of contempt of court orders issued on 18/6/2025. The application is supported by an affidavit sworn on 3/12/2025 by Wilson Ekaale Lokoel. He says that following the judgment of the court of 16/10/2025, he served it upon the respondents as per an affidavit of service dated 17/11/2025, attached as annexure marked WEL-(1), (2), and (3). 2.Despite service, the applicant deposes that the respondents have remained in possession, use, and occupation of the plot No. 507. The applicant terms the acts as blatant disregard of court orders, amounting to belittling and undermining the authority of the court and the rule of law. 3.In the second application dated 16/12/2025, the court is asked to stay execution of the judgment delivered on 18/6/2025 and all the consequential orders, set it aside ex debito justitiae, issue directions for rehearing the appeal de novo on merit. 4.The reasons are contained on the face of the application and in a supporting affidavit of Billy Aberun, sworn on 16/12/2025. It is deposed that the appellant filed a memorandum of appeal on 8/5/2024, which he did not pay for. It is deposed that the court proceeded to hear and determine the appeal in the absence of a memorandum of appeal duly filed and served. 5.Further, the applicant deposes that the appeal was heard and served in the absence of service upon him of the memorandum of appeal, record of appeal, written submissions, or a hearing notice. The applicant deposes that while directions were issued on 19/11/2024, the court directed the Deputy Registrar to notify the parties of the proceedings; there is no indication that this was ever done, and therefore, he only became aware of the judgment or orders on 16/10/2025, when he was served with the impugned judgment. 6.The applicant deposes that failure to attend court was not intentional and was due to sufficient cause. The applicant deposes that he has an arguable response to the appeal and shall suffer substantial prejudice if the orders sought are not granted. 7.The applicant deposes that he has been advised by his lawyer that service of court documents is an important component in the administration of justice, whose omission is an affront to his right to a fair hearing, and amounts to a denial of the right to present his case before the decision was made against him. The applicant deposes that he has made the application in good faith and in the interest of justice. 8.The 2nd application is opposed by a replying affidavit sworn on 8/4/2026, which was outside the timelines given. 9.The applicant in the first application relies on written submissions dated 10/2/2026. Reliance is placed on Shimmers Plaza Ltd -vs- National Bank of Kenya Ltd [2015], Samuel M.N. Mweru & Others -vs- National Land Commision & Others [2020] eKLR, Hadkinson -vs- Hadkinson [1952] 2 ALLER 567, Michael Sistu Mwaura Kamau vs Director of Public Prosecutions & another [2018] eKLR, Econet Wireless Kenya Ltd -vs- Minister for Information & Communication of (K) [2005] eKLR, Rose Nafula Wanyama -vs- Nusra Nasamba Chibanga & Another [2019] KECA 192[KLR], Fred Matiang’i, the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government -vs- Miguna Miguna & Others [2018] eKLR and Republic -vs- Ahmed Abolfathi Mohammed & Another[2019] eKLR. 10.The 1st respondent relies on written submissions dated 8/4/2026. Reliance is placed on Mutitika -vs- Baharini Farm Limited [1985] KLR 229, Amir Suleiman -vs- Amboseli Resort Limited [2004] eKLR, Sheila Cassatt Issenberg & another -vs- Antony Machatha Kinyanjui [2021] KEHC 5692 (KLR), Samuel M. N. Mweru & Others -vs- National Land Commission & 2 others. [2020] KEHC 9233 (KLR) and Carey -vs- Laiken [2015 SCC 17]. 11.There are four issues for the court’s determination, namely:1.If the respondent was condemned unheard in the manner in which the appeal was placed for directions, given directions, admitted for hearing, given direction or manner of disposal, heard and determined.2.If the respondent is guilty of contempt of court.3.Whether the respective applicants are entitled to the reliefs sought.4.What is the order as to costs? 12.Order 42 Rule 11 of the Civil Procedure Rules provides that upon filing of the appeal, the appellant shall, within 30 days, cause the matter to be listed before a judge for directions under Section 79B of the Act, after which, if the appeal is admitted, the Registrar shall notify the appellant to serve the memorandum of appeal on every respondent within 7 days. 13.The appellant, upon notifying all the parties under Order 42 Rule 13 of the Civil Procedure Rules, is supposed to cause the appeal to be listed for giving directions. The judge shall thereafter give directions on the filing of a record of appeal. A notice shall also be sent to the court appealed from to forward the lower court file under Order 42 Rule 13 of the Civil Procedure Rules. 14.Order 42 of Rule 16 of the Civil Procedure Rules provides that any party to an appeal who does not intend to appear in person or through an advocate at the hearing of the appeal may file a declaration in writing to that effect and lodge written submissions of the arguments in support or opposition to the appeal and serve the opposite party. 15.Order 42 Rule 17 of the Civil Procedure Rules provides that a notice of the hearing date shall be served upon the respondent as per Order 5 of the Civil Procedure Rules. Order 42 Rule 20 of the Civil Procedure Rules provides that if the respondent does not appear or he did not file a declaration, under Order 42 Rule 16(1) of the Civil Procedure Rules, the court may hear the appeal ex parte. 16.Order 42 Rule 23 of the Civil Procedure Rules provides that where an appeal is heard ex parte and judgment pronounced against the respondent, he may apply to the court for re-hearing of the appeal, and if he satisfies the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called out, the court shall rehear the appeal on such terms as to costs or as it deems fit. 17.The respondent is blaming the appellant for not serving him with the appeal. The court record shows that on 19/11/2024, the court ordered that the Deputy Registrar serve the parties with a mention notice for 17/12/2024. When the matter came up for directions on 25/3/2025, the appellant was present while the respondent was absent. The court made orders that the respondent be served with the directions of the court that the appeal would be canvassed by way of written submissions, together with the timelines to file and a judgment notice. 18.It is not clear whether the appellant complied with those orders. It is also true that the respondent did not file any written submissions or appear at the judgment date on 18/6/2025. 19.In Pere -vs- Osoi Civil Appeal Appl. No. E008 of 2019 [2025] KECA 1417 [KLR] (3rd July 2025) (Ruling), the court held that appellate practice is predicated upon parties appearing, mainly through appointed counsel, to urge their respective cases through advocacy in which they address the court in an effort to persuade it to decide the matter in their favour. 20.The court held that it is at the heart of the right to be heard, which is the clearest signature of a fair trial. Evidence of service of court processes and proceedings is lacking. If the party's defaulting appearance was the respondent, the onus is on the appellant to satisfy the court that he had served the respondent. 21.Sufficient cause is on the person seeking indulgence of the court, as held in Pere -vs- Osoi (supra), to show what prevented him from appearing. The discretion to re-hear the appeal upon setting aside the judgment is exercisable on principle and based on evidence. The respondent is yet to execute the decree and take up vacant possession. 22.The prejudice and inconvenience suffered by the respondent, unlike the applicant, who did not participate in the appeal, are less. There is no evidence that the applicant was aware of the pending appeal. 23.In M’Mbogo -vs- Mohamed Civil Appeal Appl. No. E079 of 2020 [2023] KECA 344 [KLR], the court cited with approval Hamida Yaroi Shek Nuri -vs- Faith Tumaini Kombe & Others [2019] eKLR, that a notice of appeal, as an important document, has to be filed and served. 24.I think I have said enough to make a finding that the application dated 16/12/2025 has merits. It is allowed with no order as to costs. 25.On whether contempt of court is established, the law was discussed in Kioko & 6 Others -vs- Muli & Others Civil Appeal No. 528 of 2019 [2026] KECA 693 [KLR] (25th March 2026) (Judgment). The court held that the operative law is in Section 5 of the Judicature Act and Section 63(c) of the Civil Procedure Act. The court cited Wekesa & Others -vs- Munialo [2025] KECA 679 [KLR], and Samuel M.N. Mweru & Others -vs- National Land Commission & 2 Others [2010] eKLR, on the ingredients of contempt, namely terms of the order be clear, unambiguous, and binding, or the defendant having knowledge of or proper notice of the order, and lastly, acting in breach of the terms of the order. 26.The respondent has said that he did not participate in the appeal. Knowledge of the outcome and its binding nature on him has to be demonstrated by the applicant as held in Shimmers Plaza Ltd -vs- National Bank of Kenya Ltd [2015] KECA 945 [KLR] and Wekesa & Others -vs- Munialo (supra). 27.The court finds the contempt unproven to the required standards. The application is dismissed with costs. 28.Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 14TH DAY OF MAY 2026.HON. C.K. NZILIJUDGE, ELC KITALE.In the presence of:Court Assistant - DennisNo appearance.