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ELCDismissedChuka ELC Civil Appeal Case No. 04 of 2018· [2019] KEELC 2302 (KLR)

John Kamakia Nthatu v Festus Kithinji Njagi [2019] KEELC 2302 (KLR)

Environment and Land Court of Kenya
24 July 2019
1,680 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate a land appeal because the appellant only filed a Notice of Appeal, never a Memorandum of Appeal — so no appeal actually existed.

What this practically means

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Executive summary

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The applicant, John Kamakia Nthaatu, moved the Environment and Land Court at Chuka by a notice of motion dated 4th February, 2019, brought under sections 80 and 3A of the Civil Procedure Act and Order 51 and Order 12 Rule 7 of the Civil Procedure Rules, seeking setting aside of an order of 24th July, 2018 dismissing his appeal (Chuka ELC Appeal No. 4 of 2018) against a judgment of the Marimanti Principal Magistrates Court in E.L.C. No. 45 of 2017, and reinstatement of the appeal. He attributed the dismissal to a registry mix-up whereby the Marimanti file was sent to Chuka and registered as a fresh suit (Chuka CMCC No. 192 of 2018), and alleged he was never served with notice of the dismissal or given a hearing date. The respondent, Festus Kithinji Njagi, opposed the application, contending that the applicant had filed only a Notice of Appeal dated 5th April, 2018 and never a Memorandum of Appeal, so there was no appeal to reinstate; that the applicant was indolent, having ignored notices to attend directions; and that the application, brought about a year after dismissal, suffered inordinate delay. In a ruling of 24th July, 2018 the court had already found that a Notice of Appeal does not constitute an appeal in the High Court, an appeal being deemed filed only upon a Memorandum of Appeal under Order 42 Rule 1, and had marked the file closed. Adopting the respondent's submissions, the court found no appeal existed capable of reinstatement, noted the applicant's non-attendance and failure to file submissions, and dismissed the application with costs to the respondent.

Key legal issues

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01

Whether a Notice of Appeal constitutes an appeal for purposes of reinstatement

Holding

A Notice of Appeal is not an appeal in this court; without a Memorandum of Appeal there is nothing on record that can be reinstated

Reasoning

The court distinguished the Court of Appeal, where an appeal is initiated by a Notice of Appeal, from the High Court, where Order 42 Rule 1 of the Civil Procedure Rules requires a Memorandum of Appeal. Since the applicant filed only a Notice of Appeal on 6th April, 2018 and took no further step, the court found no appeal existed and the Notice was of no consequence.

p. 3
02

Whether the court should exercise its discretion to set aside the dismissal

Holding

The discretion could not be exercised because no appeal existed to reinstate; the applicant was also culpably indolent, ignoring the court's notices and directions

Reasoning

The applicant and his advocate failed to attend the directions hearing of 24th July, 2018 despite notice by registered post, and further ignored the court's order of 9th July, 2019 to file written submissions. The court declined to aid an indolent litigant and dismissed the application with costs to the respondent.

p. 4

Legal principles established

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  • A Notice of Appeal does not constitute an appeal in the High Court/ELC; an appeal to the High Court from a subordinate court is deemed filed only upon filing a Memorandum of Appeal under Order 42 Rule 1 of the Civil Procedure Rules

Court orders

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  1. 1.The application dated 4th February, 2019 is dismissed
  2. 2.Costs are awarded to Festus Kithinji Njagi, the intended respondent

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 79G
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 42 Rule 1
On appeal from
Principal Magistrates Court, Marimanti
E.L.C. No. 45 of 2017
Jurisdiction invoked
Sections 80 and 3A of the Civil Procedure Act and Order 51 and Order 12 Rule 7 of the Civil Procedure Rules (inherent power to set aside dismissal orders); appeal jurisdiction under Section 79G of the Civil Procedure 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, "John Kamakia Nthatu v Festus Kithinji Njagi [2019] KEELC 2302 (KLR)", Case Analysis (2019). Chuka ELC Civil Appeal Case No. 04 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2302/eng@2019-07-24

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