[2025] KEELC 4121 (KLR)
The court found that although the appellant's counsel was not candid regarding the availability of the lower court proceedings and had been indolent in following up, the mistake was attributable to the advocate and not the litigant. The court exercised its discretion not to penalize the appellant for the advocate's...
Source-derived case information.
- Citation
- [2025] KEELC 4121 (KLR)
- Parties
- Appellant: Olemama Tome; Respondent: Peipei Ole Mosoiko; Respondent: Nooldupo Ene Sankui; Respondent: Lekakeny Sakui Tome
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kilgoris
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E020 of 2024
- Procedural Posture
- Environment and Land Appeal / Ruling on Notice to Show Cause Regarding Delay in Filing Record of Appeal
- Outcome
- Application allowed; appellant granted extension of time to file and serve record of appeal.
- Judges
- MN Mwanyale
- Legal Topics
- Appeal Delay, Record of Appeal, Notice to Show Cause, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Olemama Tome
Appellant
Peipei Ole Mosoiko
Respondent
Nooldupo Ene Sankui
Respondent
Lekakeny Sakui Tome
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Notice to Show Cause Regarding Delay in Filing Record of Appeal
Legal Issues
- 1 Whether sufficient cause was shown for the delay in filing the record of appeal.
- 2 Whether the mistake of counsel should be visited upon the litigant in the circumstances.
Ratio Decidendi
The court found that although the appellant's counsel was not candid regarding the availability of the lower court proceedings and had been indolent in following up, the mistake was attributable to the advocate and not the litigant. The court exercised its discretion not to penalize the appellant for the advocate's error, holding that the interests of justice required giving the appellant an opportunity to file the record of appeal. The court therefore granted a final extension of time for filing and serving the record of appeal, emphasizing that the right to be heard should not be defeated by counsel's procedural lapses where the litigant is otherwise keen to prosecute the matter.
Court Disposition
Application allowed; appellant granted extension of time to file and serve record of appeal.
Orders
- The record of appeal in this appeal and Appeal No. E21/2024 shall be filed and served within 15 days.
- The matter shall be mentioned for directions on 23/6/2025.
Full Case Text
Judgment text and source record
26 paragraphs
Tome v Mosoiko & 2 others (Environment and Land Appeal E020 of 2024) [2025] KEELC 4121 (KLR) (29 May 2025) (Ruling)
Neutral citation: [2025] KEELC 4121 (KLR)
Republic of Kenya
In the Environment and Land Court at Kilgoris
Environment and Land Appeal E020 of 2024
MN Mwanyale, J
May 29, 2025
Between
Olemama Tome
Appellant
and
Peipei Ole Mosoiko
1st Respondent
Nooldupo Ene Sankui
2nd Respondent
Lekakeny Sakui Tome
3rd Respondent
Ruling
1. The Appellant herein filed a Memorandum of Appeal dated 9th of August 2024 against the Judgement dated 18/7/2024 delivered by Hon. W.C Waswa in Kilgoris SPMEL No. 86/2023.
2. No further action was taken by him despite several mentions to confirm filing of the Record of Appeal and the Appellant was prompted into action upon service of the Notice to Show Cause which was slated for 5/5/2025.
3. On 5/5/2025, the Appellant counsel sought and was granted time to file an affidavit showing cause. In the meantime, this Appeal was consolidated together with Appeal No. 21/2024 as both appeals are against the same Judgement, but filed by different appellants.
4. Mr. Nyaberi learned counsel for the Appellant filed an affidavit in response to the Notice to Show Cause stating interalia.Indicating that he had been following proceedings with the court registry which proceedings were not ready. Hence the delay in filing the record of Appeal arose from the non-availability of the proceedings, but the Appellant was desirous of prosecuting the Appeal. He annexed one such letter calling for the proceedings.
5. I have perused the lower court file and I have seen that the proceedings were availed before the ELC on 22nd January 2025, meaning that the Advocate herein has not been candid on the issue of lack of proceedings but has been indolent given the matter was mentioned on 3/3/2025 and had previously been mentioned on 20/01/2025 when the proceedings were not ready.
6. There is no sufficient cause shown for the delay in filing the record of Appeal, but since the Affidavit was sworn by the advocate and it appears to be solely his mistake in not following up, the court shall not visit this mistake on the litigant and shall give the litigant a chance to file the record of Appeal.
7. The court directs, the record of Appeal in this Appeal as well as Appeal No. E21/2024 be filed and served 15 days and come up for directions on 23/6/2025.
DATED AT KILGORIS THIS 29TH DAY OF MAY 2025. HON. M.N. MWANYALEJUDGEIn the presence ofCA – Emmanuel/SylviaMr. Nyaberi for the AppellantMr. Miruka for the RespondentMs. Wekesa for the Appellants in Appeal E021/24