Joseph Gathungu Rungendo & Lucia Muthoni Rugendo v Stanley Kabugi Kamulwa & Gabriel Njira-Ini Kamulwa [2017] KEELC 2635 (KLR)
The bottom line
#A Kenyan land appeal pending 16 years was dismissed because the appellants ignored court directions and never explained their delay.
What this practically means
#Executive summary
#Key legal issues
#Dismissal of appeal for want of prosecution
The appeal was dismissed for want of prosecution because the appellants and their counsel were indolent and the inordinate delay was unexplained, causing prejudice to the respondents.
The appeal had been pending for about 16 years since filing in 2000. After the appeal was struck out by Sergon J and reinstated with directions by Ombwayo J on 11th December 2014 to file a supplementary record within 14 days, the appellants neither complied nor took steps. The letter of 2nd December 2014 from the Deputy Registrar Nyeri was properly addressed to both counsels, and the 6th February 2015 letter notified transfer of the appeal, yet the record was only filed on 14th June 2016 without leave. The court held the delay was inordinate and unexplained and that courts should not indulge parties who do not assist them.
Credibility of the claim of non-notification of the ruling
The court rejected the 2nd appellant's claim that her counsel only learnt of the ruling from the Kenya Law Reports website, finding counsel was duly notified but did not attend.
The letter dated 2nd December 2014 from the Deputy Registrar Nyeri advising of delivery of the ruling on 11th December 2014 was addressed to counsel for both parties at the same postal address (P.O. Box 802 Kerugoya) used in earlier undisputed notices. Both counsel practise in Kerugoya; it was inconceivable that one received the letter and not the other. In the absence of evidence that the notice was not received, and since the onus lay on the appellants, the court concluded it was received but no action was taken.
Legal principles established
#- Parties and their counsel must diligently comply with court directions and timelines; the court is not obliged to indulge an indolent party.
- A notice correctly addressed to a party's advocate at their known postal address is presumed received by that advocate in the absence of contrary evidence.
Court orders
#- 1.The appeal is dismissed for want of prosecution
- 2.Costs of the appeal and the application awarded to the respondents
- On appeal from
- Environment and Land Court at Nyeri
- Jurisdiction invoked
- Appellate jurisdiction over the transferred appeal; application premised on Order 42 Rule 35(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Gathungu Rungendo & Lucia Muthoni Rugendo v Stanley Kabugi Kamulwa & Gabriel Njira-Ini Kamulwa [2017] KEELC 2635 (KLR)", Case Analysis (2017). Not stated in the judgment (Appeal filed in this Court on 23rd October 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2635/eng@2017-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.