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ELCDismissedChuka ELC Civil Appeal Case No. 10 of 2019· [2019] KEELC 315 (KLR)

M’Twiga Borev Eliphas Kithinji Bore [2019] KEELC 315 (KLR)

Environment & Land Court of Kenya at Chuka
17 December 2019
PNP. M. Njoroge
837 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land appeal was dismissed after the appellant failed to file the required appeal documents on time, leaving the original eviction order in place.

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 judgment of the Chief Magistrates Court at Chuka (Hon. J. M. Njoroge, CM) dated 21st August 2019 in Civil Case No. 139 of 2016. The trial court had ordered the appellant to give vacant possession of land parcel No. Mwimbi/N. Mugumango/1964 within 90 days, granted a permanent injunction restraining the appellant and his family and agents from interfering with the respondent's land, and awarded costs to the respondent. The appellant filed a Memorandum of Appeal on 31st October 2019 seeking to set aside the ruling and to maintain status quo, raising three grounds including that the magistrate erred in finding the issues conclusively determined by the High Court at Meru in Succession Cause No. 93 of 1998, and that the appellant had a beneficial interest in the suit land. On 26th November 2019, the court granted a conditional stay of execution on condition that the appellant deposit Kshs. 500,000 as security within 14 days and file and serve a record of appeal within the same period. When the matter came up on 11th December 2019, the appellant, who had not filed the record of appeal, stated that he had been sick and expressed a desire to withdraw his appeal. The respondent asked for dismissal with costs. On 17th December 2019 the court, considering all the facts and circumstances, dismissed the appeal and awarded costs to the respondent. No authorities or statutes are cited in the judgment.

Key legal issues

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01

Consequences of an appellant's withdrawal of appeal and failure to file the record of appeal within directions

Holding

The court dismissed the appeal and awarded costs to the respondent after the appellant stated his desire to withdraw the appeal and admitted he had not filed the record of appeal as directed on 26th November 2019

Reasoning

The court had granted a conditional stay on 26th November 2019 on condition that the applicant deposit Kshs. 500,000 as security within 14 days and file and serve a record of appeal within 14 days. On 11th December 2019 the appellant explained non-compliance, citing illness, and expressed a desire to withdraw the appeal. The respondent asked for dismissal with costs. Considering all the facts and circumstances, the court dismissed the appeal with costs to the respondent.

p. 3

Legal principles established

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    Court orders

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    1. 1.This appeal is hereby dismissed
    2. 2.Costs are awarded to the respondent
    On appeal from
    Chief Magistrates Court of Kenya at Chuka
    Civil Case No. 139 of 2016
    Jurisdiction invoked
    Appellate jurisdiction of the Environment and Land Court over appeals from the Chief Magistrates' Court (instituted by Memorandum of Appeal dated 31st October 2019)

    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, "M’Twiga Borev Eliphas Kithinji Bore [2019] KEELC 315 (KLR)", Case Analysis (2019). Chuka ELC Civil Appeal Case No. 10 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/315/eng@2019-12-17

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