Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedCivil Appeal No. 208 of 2011 (arising from Nyahururu SPMCCC No. 116 of 2004)· [2018] KEELC 3560 (KLR)

OL Kalaou West Farmers Co-operative Societies Ltd v David Kibue Kinyanjui [2018] KEELC 3560 (KLR)

Environment and Land Court
18 April 2018
MOM.C. Oundo
2,597 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

#

Kenya's Environment and Land Court reinstated a dormant 2011 land appeal, confirming dismissal for delay is a last resort where a fair trial remains possible.

What this practically means

#

Executive summary

#
This was a Notice of Motion dated 5th July 2017 brought by the Appellant under Order 42 Rule 21, Order 45 Rule 1(a), Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution, seeking review and setting aside of the court's orders of 22nd June 2017 dismissing the appeal for want of prosecution, and reinstatement of the appeal. The applicant contended there was sufficient cause and an error on record, that it had moved swiftly after the dismissal, and that the lower court file and typed proceedings could not be traced for a long time, frustrating preparation of the record of appeal. The respondent opposed, relying on Kamahuha Ltd v Standard Chartered Bank, arguing no new matter or evidence existed to justify review, that the appeal lodged in 2011 was never prosecuted despite numerous mention dates, Notice to Show Cause proceedings and extended timelines, and that the applicants continued occupying the respondent's one acre of land. The court, per M.C. Oundo J, restated the law under Order 42 Rule 35(2) on dormant appeals, applied Ivita v Kyumbu on want of prosecution, and held that although there was some lack of diligence, the applicant had not totally lost interest and the respondent had shown no prejudice. Dismissal being a draconian act, the court found sufficient reason to review the dismissal order. The appeal was reinstated, the record of appeal admitted, timelines for service and written submissions set, with costs of the application borne by the applicant.

Key legal issues

#
01

Whether conditions for review under Order 45 Rule 1 were satisfied

Holding

Sufficient reason existed to review the dismissal order of 22nd June 2017

Reasoning

The court held that although there was some lack of diligence by the applicant and its advocates, the applicant had not totally lost interest, having promptly filed the review application and a record of appeal. The respondent showed no prejudice. Substantive justice under Article 159 favoured reinstatement.

p. 3
02

Dismissal for want of prosecution and its rationale

Holding

Order 42 Rule 35 governs dismissal of dormant appeals; dismissal is discretionary and drastic

Reasoning

The court reviewed Order 42 Rule 35(1) and (2), noting the appeal had lain dormant since 2011 and was dismissed suo motu. It balanced the delay against the applicant's continued pursuit of the matter and the absence of demonstrated prejudice to the respondent, relying on Ivita v Kyumbu.

p. 3

Legal principles established

#
  • Order 42 Rule 35(2) targets dormant appeals abandoned for a minimum period of one year
  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can nevertheless be done
  • Dismissal of a case is a draconian act to be used sparingly; courts should prefer sustaining suits where a fair trial remains possible

Court orders

#
  1. 1.The order made on 22nd June 2017 dismissing the appeal for want of prosecution is set aside and Civil Appeal No. 208 of 2011 is reinstated
  2. 2.The Appellant's record of appeal is admitted as being properly on record
  3. 3.The Appellant to serve the record upon the Respondent (if not already served) within 14 days
  4. 4.The Appeal to be disposed of by way of written submissions; Appellant to file and serve written submissions within 14 days and Respondent within 14 days of service
  5. 5.Costs of the application to be borne by the applicant

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 21
  • Civil Procedure RulesOrder 45 Rule 1(a) and 1(b)
  • Civil Procedure RulesOrder 42 Rule 35(1) & (2)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Constitution of KenyaArticle 159

Cases cited (2)

  • Kamahuha Ltd vs. Standard Chartered Bank of Kenya Ltd & 2 others
    [2013] eKLR
  • Ivita vs Kyumbu
    [1984] KLR 441
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "OL Kalaou West Farmers Co-operative Societies Ltd v David Kibue Kinyanjui [2018] KEELC 3560 (KLR)", Case Analysis (2018). Civil Appeal No. 208 of 2011 (arising from Nyahururu SPMCCC No. 116 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3560/eng@2018-04-18

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