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ELCAllowedNotice of Motion dated 3rd May 2019 (arising from Engineer PMCC Civil Suit No. 22 of 2017)· [2019] KEELC 1064 (KLR)

Stephen Kihara Githinji v Jackson Muiruri Nduati [2019] KEELC 1064 (KLR)

Environment and Land Court
5 November 2019
MOM.C. Oundo
3,058 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated an appeal dismissed for delay, ruling that suits should be kept alive where justice can still be done.

What this practically means

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Executive summary

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The Applicant, an appellant before the Environment and Land Court at Nyahururu, moved the court by Notice of Motion dated 3rd May 2019 seeking vacation of orders issued on 21st March 2019 dismissing his Appeal for want of prosecution and reinstatement of the Appeal. The underlying matter arose from an ex-parte judgment and decree of the Engineer Principal Magistrate's Court in Civil Suit No. 22 of 2017 delivered on 4th July 2017. The Applicant's earlier application for stay of execution was dismissed on 28th January 2018 with conditional directions to lodge the Appeal within 15 days and file the record of Appeal within 45 days. When the matter came up for compliance confirmation on 21st March 2019, the Applicant had neither complied nor appeared, and the court dismissed the Appeal on its own motion. The Applicant attributed the delay to counsel's indisposition and non-availability of the lower court record; the Respondent opposed, contending the Applicant was indolent and had only moved after execution proceedings commenced. The court, citing Order 42 Rule 35(1), Order 45 Rule 1 and the Ivita v Kyumbu test - whether the delay is prolonged and inexcusable and whether justice can be done despite it - held that dismissal is a draconian act to be exercised sparingly, that the Appellant had not lost interest given his reinstatement efforts, and that the Respondent had shown no prejudice. The court set aside the dismissal, reinstated the Appeal, directed filing of the record of Appeal within 45 days, and ordered costs in the cause.

Key legal issues

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01

Whether the dismissal of the Appeal suo motu for want of prosecution should be set aside and the Appeal reinstated

Holding

Yes - the court found sufficient reason to review and set aside its own dismissal order, the Appellant having demonstrated continued interest in prosecuting the Appeal and the Respondent having shown no prejudice.

Reasoning

The court reviewed the procedural history: after the stay application was dismissed with conditional timelines, the Appellant failed to comply and was absent when the matter was called out, prompting the court's own-motion dismissal. Applying Order 45 Rule 1 and the Ivita v Kyumbu test, the court found the Appellant had not totally lost interest given his reinstatement efforts, and that the Respondent had shown no prejudice. Substantive justice under Article 159(2)(b) favoured reinstatement with timelines.

p. 4
02

Purpose of Order 42 Rule 35(1) of the Civil Procedure Rules

Holding

The provision targets dormant Appeals abandoned after filing, where the Appellant demonstrates no interest in progressing the Appeal.

Reasoning

The court interpreted Order 42 Rule 35(1), which permits a Respondent either to set down a dormant Appeal for hearing or to apply by summons for its dismissal, as designed to deal with Appeals in which the Appellant takes no step towards admission, directions or hearing. This informed the court's view that dismissal on the court's own motion, while unusual, was aimed at an abandoned Appeal.

p. 3

Legal principles established

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  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay; the respondent must show prejudice.
  • Dismissal of a suit is a draconian judicial act to be done sparingly; courts should sustain suits where justice can still be done despite delay.

Court orders

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  1. 1.The order made on 21st March 2019 dismissing the Appeal for want of prosecution is set aside and the Appeal is reinstated
  2. 2.The Applicant/Appellant's record of Appeal shall be filed and served upon the Respondent within the next 45 days from the date of the ruling
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 3B, 63(e), 95
  • Civil Procedure RulesOrder 42 Rule 21, Order 42 Rule 35(1) & (2), Order 45 Rule 1, Order 50 Rule 1, Order 51 Rule 1
  • Constitution of KenyaArticle 50; Article 159(2)(b)

Cases cited (5)

  • Pyramid Haulers Co. Limited vs James Omingo Nyaaga & 3 Others
    [2017] eKLR
  • Eastern Province Kenya Ltd vs Rongai Workshop & Another
    [2014] eKLR
  • Pan African Paper Mills Limited vs. Sylvester Nyarango Obwocha
    [2018] eKLR
  • Cecelia Wanja Waweru vs Wainaina Muiruri & Another
    [2014]
  • Ivita vs Kyumbu
    [1984] KLR 441
On appeal from
Engineer Principal Magistrate's Court
Civil Suit No. 22 of 2017
Jurisdiction invoked
Order 42 Rule 21, Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3A, 3B, 63(e) and 95 of the Civil Procedure Act; Order 45 Rule 1 (review)

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, "Stephen Kihara Githinji v Jackson Muiruri Nduati [2019] KEELC 1064 (KLR)", Case Analysis (2019). Notice of Motion dated 3rd May 2019 (arising from Engineer PMCC Civil Suit No. 22 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1064/eng@2019-11-05

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