https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4166

Sungur v Tarambete Self Help Group & another (Environment and Land Appeal 10 of 2021) [2026] KEELC 4166 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4166 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Appeal 10 of 2021 LC Komingoi, J July 2, 2026 Between Panato Liash Sungur Appellant and Tarambete Self Help Group 1st Respondent Komanda Self Help Group 2nd Respondent Ruling 1.This ruling is in respect of the Notice of Motion dated 5th March 2026 brought under (Under Order 51, Rule 1 of the Civil Procedure Rules, Order 42 Rule 21 or the Civil Procedure Rules, Article 159 (2) (d) of the Constitution, Section IA, 1B and 3A of the Civil Procedure Act and, and all other enabling provisions of the Law. 2.It seeks orders:-1.Spent2.That this Honorable court be pleased to set aside its orders of 19th January, 2023 which struck out the Record of Appeal for being defective.3.That this Honorable court be pleased to reinstate the Appeal with leave to file a supplementary record of appeal to regularize the same and the same be heard on merit.4.That the cost of this Application be provided for. 3.The grounds are on the face of the Application and are set out in paragraphs 1 to 5. 4.The Application is supported by the affidavit of Panato Liash Sungur, the Appellant/Applicant sworn on the 5th March 2026. 5.The Application is opposed. There is a Replying Affidavit sworn by Joyce Waturi Kiruchi, a representative of the Respondents sworn on the 30th March 2026. 6.On the 22nd April 2026, the court with the consent of the parties directed that the Notice of Motion be canvassed by way of written submissions. 7.The Appellant’s submissions are dated 5th June 2026. Counsel submitted that this court has discretion to grant the orders sought. Reliance is placed on the cases of Kiprotich Vs Matata (2024) KEHC 808, where the Court cited with approval the cases of CMC Holdings Vs Nzioki (2004) KLR 173; Shah Vs Mbogo (1967) EA 166; Patel Vs East Africa Cargo Handling Service Limited (1074) E.A 75. 8.It is also submitted that the Record of Appeal and the entire appeal were struck out for being defective as there were no copies of judgment and typed proceedings.It is the Appellant’s submission that the omission of the said documents was due to his previous counsel’s mistake who was actually present when the appeal was struck out. 9.It is further submitted that a litigant should not be penalized for mistake of counsel. Reliance is placed on the case of Lucy Bosire Vs Kehancha Divisional Land Disputes Tribunal & 2 others. 10.It is submitted that Articles 50 (1) of the Constitution guarantees a fair hearing and that Article 159 (2) (d) enjoins courts to administer justice without undue regard to procedural technicalities.Reliance is placed on the case of Philip Chemwolo Vs Augustine Kubende (1982-88) KAR 103, 11.He urges the Court to exercise discretion in his favour and set aside the orders issued on 19th January 2023 and that the Appeal be reinstated. He prays that each party do bear own costs. 12.The Respondents’ submissions are dated 8th June 2026. Counsel submitted that the Appellant lodged the appeal and was severally ordered to comply with the court’s directions for filing a record of appeal but he did not do so. That the delay of three years is not excusable. Reliance is placed on the case of Kenya Power & Lighting Company Limited Vs Odeny (2025) KEHC 17348 ( KLR). 13.It is further submitted that equity aids the vigilant and not the indolent and the Appellant is very indolent. 14.It is submitted that the commencement of execution woke up the Appellant and that it has been held that execution process is a lawful exercise. Reliance is placed on the case of James Wangalwa & Another Vs Agnes Naliaka Cheseto (2012) eKLR. 15.It is submitted that the appeal is a waste of this courts’ time and that the same ought to not be reinstated. They pray that the application be dismissed with costs. 16.I have considered the Notice of Motion, the affidavit in support, the response thereto, the written submissions and the authorities cited. The issue for determination is whether this Application is merited. 17.It is the Appellant/Applicant’s case that he was represented by counsel who ought to have ensured that the proper Record of Appeal was filed. That a mistake of counsel ought not to be visited on him. 18.The Respondent’s contention on the other had is that the Applicant has been indolent and they should be allowed to enjoy the fruits of their judgment. 19.It is not in dispute that the Appellant was represented by counsel in the Appeal. This however does not give him an excuse to go to slumber. He ought to have been interested in the status of the Appeal. 20.I have considered the circumstances under which the Record of Appeal and the entire appeal, were struck out and I find that the Appellant deserves the right to be heard on appeal. 21.This court therefore exercises discretion in his favour. 22.In conclusion, I find merit in this application, and grant the orders sought namely:-a.That the orders of 19th January 2023 are hereby set aside.b.That the Appeal is hereby reinstated.On condition that:i.The appellant do pay Kshs15,000/- throw away costs to the Respondents within 30 days from the day of this rulingii.The Appellant do file a supplementary record of Appeal within 30 days of this ruling.In default: The Record of Appeal and the Appeal shall stand struck out.c.That the Appellant do bear costs of this application. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 2ND DAY OF JULY 2026.L KOMINGOIJUDGEIn presence of :Ms Theuri for the AppellantMr Kanyi Kiruchi for the RespondentCourt Assistant : Irene/Derrick