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ELCDismissedMilimani CMCC 9710 of 2002 (Appeal)· [2018] KEELC 139 (KLR)

Jecinta Pere & another v Lucas Kiengwa Okara T/A Kenangwa Enterprises & another [2018] KEELC 139 (KLR)

High Court of Kenya (Environment and Land Court, Kajiado)
19 December 2018
COCHRISTINE OCHIENG
1,715 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Respondents moved the High Court (Environment and Land Court, Kajiado) by Notice of Motion dated 7th May 2018 seeking dismissal of the Appellants' appeal from Milimani CMCC 9710 of 2002 for want of prosecution, and in the alternative, vacation of stay of execution orders granted by the lower court on 31st October 2003 and 24th May 2004. The appeal concerned plots 143 and 144 Ongata Rongai, in respect of which the lower court had found the 1st Respondent the rightful proprietor and granted a permanent injunction. The Respondents argued that over fourteen years after filing the Memorandum of Appeal, the Appellants had taken no steps to set the appeal down for directions. The Appellants countered that the delay resulted from multiple applications by both parties, failure to trace the lower court file, successive transfer applications, and the Respondents' eviction of tenants and demolition of premises despite the stay orders. The court framed two issues: whether the appeal should be dismissed for want of prosecution, and whether the stay orders should be vacated. Relying on Jurgen Paul Flach v Jane Akoth Flach and Kirinyaga General Machinery v Hezekiel Mureithi Ireri, the court held that directions must first be taken under Order 42 rule 13 before an appeal can be dismissed for want of prosecution, and no directions had been given. On the stay orders, no sufficient reasons for setting them aside were furnished and no prejudice was demonstrated. The application was disallowed, costs were in the cause, and the appeal was to be set down for directions within 60 days.

Key legal issues

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01

Whether the appeal should be dismissed for want of prosecution

Holding

The application was declined because no directions had been given and the appeal had not been admitted

Reasoning

The court noted from the file that no directions had been given in accordance with Order 42 rule 13, meaning the appeal had not been admitted. Relying on Jurgen Paul Flach v Jane Akoth Flach and Kirinyaga General Machinery v Hezekiel Mureithi Ireri, directions must first be taken before a party can move to dismiss an appeal for want of prosecution. The court was therefore unable to dismiss the appeal until directions were taken.

p. 2
02

Whether the stay of execution orders should be vacated

Holding

The court declined to set aside or vary the stay orders

Reasoning

The court observed the appeal had been pending for too long due to many interlocutory applications by both parties, contributing to the delay. Uncontroverted averments showed the Respondents had evicted tenants and demolished structures despite the stay order. No sufficient reasons were furnished to set aside the stay, and no prejudice was demonstrated by the Respondent if the stay subsisted.

p. 2

Legal principles established

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  • Before a respondent can move the court to dismiss an appeal for want of prosecution, directions ought to have been given under Order 42 rule 13

Court orders

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  1. 1.The Notice of Motion Application dated the 7th May, 2018 is not merited and is disallowed
  2. 2.Costs will be in the cause
  3. 3.The Appeal to be set down for directions within the next 60 days from the date of the ruling

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(b)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42 rules 35(1), 35(2) and 13

Cases cited (2)

  • Jurgen Paul Flach v Jane Akoth Flach
    [2014] eKLR
  • Kirinyaga General Machinery v. Hezekiel Mureithi Ireri
    HCC No. 98 of 2008
On appeal from
Chief Magistrate's Court, Milimani
CMCCC No. 9710 of 2002
Jurisdiction invoked
article 159 (2) (b) of the Constitution, sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 rule 35 (2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jecinta Pere & another v Lucas Kiengwa Okara T/A Kenangwa Enterprises & another [2018] KEELC 139 (KLR)", Case Analysis (2018). Milimani CMCC 9710 of 2002 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/139/eng@2018-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.