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ELCDismissedNot stated in the extract· [2018] KEELC 4068 (KLR)

Desderio Willis Mbaka & 8 others v Presbyterian Foundation & 2 others [2018] KEELC 4068 (KLR)

Environment and Land Court
28 February 2018
ONO.P.M. Njoroge
1,905 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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This was an appeal to the Environment and Land Court at Chuka against the decree of the Senior Resident Magistrate's Court in Chuka SRMCC No. 32 of 2007, a land dispute in which the respondents, as plaintiffs, had claimed ownership of land parcel Karingani/Muiru/975 on which they had constructed a health centre. The appeal was admitted on 30th September 2009 but was never set down for hearing for close to ten years. Despite repeated court directions - including an order of 5th December 2017 granting the appellants' advocate access to the lower court's file and 14 days to file a supplementary record of appeal containing the decree - the appellants failed to comply. The respondents complained that the claim that the lower court file was inaccessible was false, as the file had always been attached to the appeal file. The court agreed, finding the explanation 'veritably mendacious' and the delay deliberate, inexcusable and offensive to Article 159(2)(b) of the Constitution ('Justice shall not be delayed'), Section 1A of the Civil Procedure Act and Section 3(1) of the Environment and Land Court Act. Noting that under Order 42 Rule 35(1) and (2) of the Civil Procedure Rules the appeal would have been dismissed years earlier, the court dismissed the appeal for want of prosecution. Although costs normally follow the event, the court found the underlying dispute bore a strong public interest litigation character and ordered each party to bear its own costs both in the lower court and on appeal.

Key legal issues

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01

Dismissal of appeal for want of prosecution

Holding

The appeal, admitted on 30th September 2009 but never set down for hearing, was dismissed for want of prosecution

Reasoning

The Memorandum of Appeal was dated 29th January 2009 yet the decree was never extracted or included in the record. Had Order 42 Rule 35(1) and (2) of the Civil Procedure Rules been applied, the appeal would have been dismissed years earlier. The explanation that the lower court's file was inaccessible was found to be false, as the file was attached to the appeal file. The delay of nearly ten years was deliberate and inexcusable, offending Article 159(2)(b) of the Constitution.

p. 2
02

Costs in public interest litigation

Holding

Although costs normally follow the event, the court ordered each party to bear its own costs because the dispute bore a strong public interest litigation character

Reasoning

The court acknowledged that costs follow the event and would ordinarily have been awarded to the respondents. However, upon reviewing the plaint, memorandum of appeal and proceedings, it found the issues raised evinced a strong veneer of public interest litigation, and therefore exercised discretion to make no order as to costs in both courts.

p. 3

Legal principles established

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  • Courts have a constitutional duty under Article 159(2)(b) to ensure justice is not delayed, and inordinate, inexcusable delay in prosecuting an appeal justifies dismissal

Court orders

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  1. 1.This appeal is dismissed
  2. 2.Parties shall bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure RulesOrder 42 Rule 35(1) and (2)
  • Environment and Land Court ActSection 3(1)
  • Constitution of Kenya, 2010Article 159(2)(b) and 159(2)(e)
On appeal from
Senior Resident Magistrate's Court, Chuka
SRMCC No. 32 of 2007
Jurisdiction invoked
First appeal under the Civil Procedure Act and Environment and Land Court Act (specific provision not stated in the extract)

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, "Desderio Willis Mbaka & 8 others v Presbyterian Foundation & 2 others [2018] KEELC 4068 (KLR)", Case Analysis (2018). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4068/eng@2018-02-28

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