Odongo & 3 others v Onyango (Environment and Land Appeal E014 of 2023) [2026] KEELC 3277 (KLR) (6 May 2026) (Ruling)

Odongo & 3 others v Onyango (Environment and Land Appeal E014 of 2023) [2026] KEELC 3277 (KLR) (6 May 2026) (Ruling) Neutral citation: [2026] KEELC 3277 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Appeal E014 of 2023 FO Nyagaka, J May 6, 2026 Between Patricia Odongo 1st Appellant Peter Okello 2nd Appellant Mbuse Okello 3rd Appellant Ndar C/O Ndiege 4th Appellant and Dominic Otieno Onyango Respondent Ruling 1.By way of Notice of Motion dated 25th November 2025, the Applicant seeks the following orders:1.…Spent2.…Spent3.…Spent4.That upon hearing of this application inter-parties orders be issued setting aside the orders of 1/4/2025 where this appeal was dismissed for want of prosecution and re-opening the appeal for hearing to its logical conclusion.5.That upon hearing of the application orders be issued staying the intended execution by eviction and for costs in Ndhiwa PMC Land Case No. E023 of 2021.6.That upon hearing of application inter-parties, orders be issued authorizing Polycarp Odhiambo Odongo to substitute Patricia Achola Odongo (Deceased) 1st Appellant and permitting amendment of the appeal accordingly. 2.The Application is expressed to be brought under sections 1A, 1B, 3A of the Civil Procedure Act, Cap 21 Laws of Kenya; and Order 51 Rule 1, Order 9 Rule 9, Order 12 Rule 6, Order 22 Rule 25, Order 8 Rule 3, Order 1 Rule 10 and Order 12 Rule 7, of the Civil Procedure Rules and all the enabling provisions of the law. 3.The Application is premised on the grounds on the face of it and the averments in the annexed joint affidavit of the 2nd – 4th Applicants. 4.The Applicants deponed that Kirui Advocates, who were their advocates on record at the time informed them that they were not going to be heard for the appeal, and that they did not need to attend court as the appeal would be canvassed by written submissions and the outcome communicated to them. Further, that Patricia Odongo (Deceased) was the point person liaising with Kirui Advocate. 5.The deponents averred that Patricia Achola Odongo died on 2nd October, 2024 leaving them confused as to how to reach counsel since she was the only one with direct contact to counsel. They annexed and marked POO-d a copy of the Burial Permit for Patricia Achola. Further, that they made numerous attempts to get updates from the offices of Kirui Advocates in Kongo but we could only reach his clerk Caroli Omulo through 0737527093 who revealed on phone that the Advocate ceased attending to the matter because he could no-longer get instructions from them following the illness and demise of the 1st Appellant. 6.The Applicants averred that they were shocked to be served with an eviction notice dated 15/9/2025 together with a bill of costs, decree dated 30/11/2023, and assessment Notice for the Ndhiwa ELC E023 of 2021 which they annexed and marked as POO-b, POO-f, POO-i, and POO-g. That they were advised to obtains letters of Administration Ad litem for the Estate of the 1st Appellant to enable substitution before lodging this application which they did. 7.The deponents averred that it is in the interest of justice that Polycarp Odhiambo Odongo be allowed to substitute Patricia Achola Odongo and to deal with the appeal. Further, that the Respondent shall suffer no prejudice if this application is allowed. 8.The Respondents filed a grounds of opposition dated 3rd December 2025 where they opposed the application, save for prayer 2, on the following grounds;1.Save for granting leave to come on record as prayed in prayer 2 of the application, the appellants/Applicants are guilty of laches and are not entitled to equitable reliefs sought, in that:a.Judgment in the trial court was delivered on the 7th March 2023 and appeal was filed timeously on the 21st March 2023.b.Appeal was never followed up for the rest of 2023 and the whole of 2024 and was finally dismissed on the 1st April 2025.c.No reasonable cause has been shown for the inordinate delay before prosecuting the appeal and the allegation made in the supporting affidavit are not meritorious.2.The Appellants/Applicants cannot claim to be condemned unheard whereas their defence was heard in full and dismissed and the memorandum of appeal dated the 21st day of March 2023 does not have much merit that can controvert the holdings of the court in the judgment delivered on the 7th March 2023.3.There is no reasonable ground shown to justify the grant of the equitable relief of stay of execution since the Respondent has complied with Section 152E of The Land Act Applicants’ submissions 9.Learned Counsel for the Applicant filed submissions dated 30th January 2026. Counsel basically recollected the contents of the supporting affidavit and urged that it was as a result of those circumstances that an eviction notice dated 15/9/2025 together with a bill of costs dated 13/03/2023 was served upon the remaining Applicants. Counsel cited Order 40 Rule 6 of the Civil Procedure Rules and urged that it is evident that a substantial loss will result to the Applicant unless the orders sought in this application are granted. Additionally, this application has been made without unreasonable delay. Counsel cited the case of Kedoki & another v Nchoe [2025] KEELC 5012 (KLR) and prayed that the stay of execution may be granted. 10.Learned counsel posited further that the appeal was dismissed for reasons of want of prosecution and which arose from the fact that the 1st Applicant had died. Allowing the application will essentially grant the Applicants time to put their house in order including substituting the 1st Applicant in the suit for reasons of her death. Counsel urged the court to look at the special circumstances of this case and hold that the Applicants are entitled to a stay of execution. 11.On whether the orders issued on the 1/4/2025 dismissing the appeal for want of prosecution should be set aside, Counsel cited Order 42 rule 21 of the Civil Procedure Rules and urged that essentially, where the appellant proves that he/she was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the court shall re-admit the appeal. He cited K .G. Patel & Sons Ltd v John Kabukuru Gituro [2016] KEHC 3247 (KLR) and urged that, reinstatement of an appeal is at the discretion of the court. Disputed issues ought to be determined on merits and litigants should not be debarred from pursuing their rights. The dismissal of the appeal came about as a result of a lack of proper communication from the counsel and the death of the 1st Applicant who was always in contact with the advocate. The Applicants were keen on prosecuting their case and were waiting for feedback from Kirui who was their advocate. 12.Counsel urged that there was no inordinate delay in prosecution of the case, there was no intentional delay and the same delay was not an abuse of the court process. The Applicants have given sufficient reasons for all that happened and therefore the court should grant the orders under such circumstances. 13.On the substitution of the 1st Applicant, Counsel urged that upon her demise, Polycarp Odhiambo Odongo took out letters of Grant of Administration Ad Litem for the estate of Patricia Achola Odongo, which orders were issued on the 17/11/2025 granting Polycarp the said grant. As a result, Polycarp has the requisite capacity to represent the 1st Applicant in this suit and therefore, the Respondents implored the court to allow the substitution. 14.Counsel prayed that the application ne allowed with costs, citing the case of Ocean Engineering Works Ltd & Another v SBM Bank of Kenya Ltd (Civil Appeal 112 of 2021) [2024] KEELC 4724 (KLR) and Section 27 (1) of the Civil Procedure Act (Cap 21) on costs. Respondents’ submissions 15.Learned Counsel for the Respondent submitted that for a court to set aside an order for dismissal for want of prosecution the Applicant must prove the following- That there was no inordinate and inexcusable delay; That the delay, if any, has not caused serious prejudice to the other party; That reinstatement of the case serves the interest of justice; By showing a reasonable excuse for the delay; By showing that the case or appeal has merit or triable issues; The setting aside should balance the need for expeditious disposal of the suit with substantive justice. 16.Counsel submitted that the profligate change of advocates since the dispute commenced in 2021 by the Applicant is indicative that the Applicants have not been giving their advocates adequate instruction and or fees. Further they have failed to observe the court decree for over two years and are now only applying after an eviction notice was served on them on 30th November 2025 although they were supposed to vacate the lands within 45 days from 7th March 2023. That the Applicants further have failed to show that the appeal which was dismissed for want of prosecution has any merit or any triable issues that may justify the reinstatement of the appeal for hearing inter parties. 17.Counsel urged that in the event that the court considers allowing the application, the Applicants should be condemned to pay costs to the Respondent. He however maintained the prayer that the application be dismissed with costs. Analysis and Determination 18.The germane issue for determination is; Whether the court should set aside the order for dismissal for want of prosecution issued on 1st April 2025 19.The law concerning dismissal of an appeal for want of prosecution is contained in Order 42 Rule 35 (1) & (2) which provides as follows: -1.Unless within three months after the giving of directions under rule 13 the appeal shall be set down for hearing, the Respondent shall be at liberty to either set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.2.If, within one year after service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal. 20.Where a party wishes to set aside an order of dismissal of suit for want of prosecution are guided by the provisions of Order 42 Rule 35 as read within the prism of the principles applicable under Order 12 Rule 7 of the Civil Procedure Rules and Section 3 of the Civil Procedure Act. This is because there is no provision for reinstatement of an appeal dismissed under Order 42 Rule 35, but Order 12 Rule 7 gives the Court discretion to, in the interests of justice set aside an order of dismissal of a matter which has not been set down for hearing within the provided timelines in relation to a suit, claim or petition. Thus, I am of the view that the principles applicable in the latter circumstances and under Section 3 of the Act would apply to appeals dismissed for want of prosecution. 21.Order 12 Rule 7 provides that,“Where under this Order judgement has been entered or the suit has been dismissed, the court on application may set aside or vary the judgement or order upon such terms as may be just.” 22.Section 3 of the Act provides that,“In the absence of any specific provision to the contrary, nothing in this Act shall limit or otherwise affect any special jurisdiction or power conferred, or any special form or procedure prescribed, by or under any other law for the time being in force.” 23.The Applicants’ contention is that the 1st Appellant was the contact person with counsel on record, one Kirui advocate. Further, that since her death on 2nd October 2024, they were unable to contact counsel or follow up the matter. Notably, the matter was dismissed on 1st April 2025 and further, as from the 19th July 2023, when orders were issued by this court, no further action was taken by either party for two years. The Applicants have conveniently not stated when and how their advocate communicated the issue of them not being required in court for hearing of the Appeal or exhibited any such communication. 24.It should not be lost sight of that in many an instance, where the Plaintiff or an appellant for that matter takes no steps at all in their case, and gives no reason for the delay, courts will not hesitate to swing the knife and cut the subject into pieces in order to bring down the sword of damocles hanging over an innocent party endlessly. This was the court’s view in the case of Nzoia Sugar Company Limited v West Kenya Sugar Limited [2020] eKLR where it held:-“Balancing the positions of the two parties, I take the view that delay of two years in prosecuting a matter is inordinate and unreasonable. The plaintiff has not explained it. The mere fact that the defendant has not demonstrated prejudice is not sufficient to sustain a suit that the plaintiff has shown no interest in prosecuting for the two years before the application for dismissal was made. It would appear that the suit was filed for the sole purpose of obtaining injunctive orders, and once the same were denied the plaintiff lost interest in the matter.” 25.Having perused the court record, I am not convinced that the explanation for the delay by the Applicants is sufficient. It is not lost to this court that there appears to have been lack of diligence on the Applicant’s part in following up the matter. After instructing their lawyers to appeal, they did nothing until something not of their own was done. Then they were somehow able to contact the office of counsel after they were awakened by the eviction orders and service of the bill of costs. Even when the alleged appellant died, they did not move their counsel with instructions that she had died and seek advice on what to do next, indeed, she was the only contact person. They knew their contact “was gone”, so to say, hence they should have acted by seeking legal advice on who to be the contact replacement then. 26.The above inaction on the part of the Applicants clearly abandoned the appeal as they had been issued with status quo orders. It follows that if they were desirous of prosecuting the appeal, they were in a position to inquire how to get updates on their appeal but chose not to. In any event they each were separate parties in the matter with equal interests in it since they did not give in writing and file any authority to plead to the deceased appellant. Therefore, it was upon them to follow up on their advocate and the appeal, the unfortunate death of the 1st Appellant notwithstanding. 27.In the circumstances, I find no merit in the Application and it is dismissed with no order as to cost costs. 28.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 6TH DAY OF MAY 2026.HON. DR. IUR NYAGAKA*JUDGEHOMA BAY ELCA E014 OF 2023, RULING D.O.D 6.5.2026