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ELCDismissedNot stated in the judgment (appeal from Provincial Appeals Committee, transferred via Meru ELC to Chuka ELC)· [2018] KEELC 785 (KLR)

Joseph Miiru Kirumpu & 2 others v Veronica Gataru Gerrald [2018] KEELC 785 (KLR)

Environment and Land Court
20 November 2018
PNP.M. NJOROGE
2,539 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The court refused to reinstate a land appeal dismissed for delay, ruling parties must actively follow their own cases and appeals need a judge's legal certification.

What this practically means

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Executive summary

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The 2nd and 3rd appellants applied under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules to set aside an order of 25th July 2017 dismissing their appeal for want of prosecution and to reinstate it. They explained their non-attendance by hospitalisation of the 2nd appellant at Gatunga Mission Health Centre and the 3rd appellant's visit to him, and claimed they were never notified when the appeal file was transmitted from the Provincial Appeals Committee (after disbandment following repeal of the Land Disputes Tribunals Act) to Meru ELC and then to Chuka ELC. They also claimed the 1st appellant misled them that the appeal had been allowed. The respondent opposed, stating she had won all previous disputes. The court rejected the non-notification claim, holding it is always the appellants' duty to prosecute suits diligently and follow up developments. It found the hospital discharge summary internally inconsistent and the claim of being misled implausible, since successful parties would promptly extract orders. More fundamentally, the court noted that section 8(9) of the Land Disputes Tribunals Act permits an appeal to the High Court only on a point of law within sixty days and only where a judge certifies an issue of law is involved. No such certification existed and the Appeals Committee had not concluded the appeal, so it was not properly before the court. Applying the Supreme Court's jurisdictional principle, the application was dismissed.

Key legal issues

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01

Whether the dismissal of the appeal for want of prosecution should be set aside

Holding

The application was dismissed because the applicants' explanations for non-attendance and for the delay in learning of the dismissal were unsatisfactory

Reasoning

The court found the applicants did not follow up their appeal despite the duty to prosecute suits diligently. The hospital discharge summary was internally inconsistent, suggesting it was issued before discharge. The claim that the 1st appellant misled them into believing the appeal had succeeded was implausible, since they would have rushed to court to extract orders in their favour rather than wait over a year.

p. 4
02

Whether the appeal was properly before the ELC court

Holding

The appeal was not properly before the court because no judge had certified that an issue of law, other than customary law, was involved, and the Appeals Committee had not concluded hearing the appeal

Reasoning

Section 8(9) of the Land Disputes Tribunals Act requires certification by a judge that an issue of law is involved before an appeal from the Appeals Committee is admitted to hearing. No such certification existed, and the appeal had not been heard and concluded by the Appeals Committee. Invoking the Supreme Court's jurisdictional pronouncement, the court held the appeal was improperly before it.

p. 4

Legal principles established

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  • It is the duty of appellants or plaintiffs to prosecute their suits diligently and to follow up developments in their cases
  • An appeal from a Provincial Appeals Committee to the High Court lies only on a point of law within sixty days and only where a Judge has certified that an issue of law (other than customary law) is involved
  • A court can only exercise jurisdiction as conferred by the Constitution or written law and cannot arrogate to itself jurisdiction exceeding that conferred by law

Court orders

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  1. 1.The application dated 22.8.2018 seeking to set aside the order of dismissal dated 25th July 2017 and reinstate the appeal is dismissed

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51 Rule 1
  • Land Disputes Tribunals ActSection 8(9)
  • Land Dispute Tribunal Act, 1990

Cases cited (1)

  • Samuel Kamau & Another versus Kenya Commercial Bank & Another
    Supreme Court Civil Application No. 2 of 2011
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules (application to set aside dismissal order); appeal regime under section 8(9) of the Land Disputes Tribunals Act

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, "Joseph Miiru Kirumpu & 2 others v Veronica Gataru Gerrald [2018] KEELC 785 (KLR)", Case Analysis (2018). Not stated in the judgment (appeal from Provincial Appeals Committee, transferred via Meru ELC to Chuka ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/785/eng@2018-11-20

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