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ELCAllowedAppeal from Kitui SPMCC No. 386 of 2005 ( Memorandum of Appeal dated 16th August, 2012)· [2019] KEELC 3228 (KLR)

Mercellina Kanyaa v Francis Mwanzia Kanyaa [2019] KEELC 3228 (KLR)

Environment and Land Court (High Court), Machakos

24 May 2019

OAO.A. Angote

1,584 words in judgment

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The bottom line

A Kenyan court revived a land suit dismissed for delay, ruling that delay stops counting once someone asks to dismiss the case.

What this practically means

Executive summary

The Appellant appealed against a Ruling of Hon. A.G. Kibiru in Kitui SPMCC No. 386 of 2005 delivered on 17th July, 2012, dismissing her suit for want of prosecution on the ground that she had not explained failure to prosecute between June, 2007 and May, 2012. The Respondent opposed, arguing the appeal was filed out of time under Section 79G of the Civil Procedure Act and that the delay in prosecution was inordinate. The court first held that, excluding the period certified in the Certificate of Delay as requisite for preparation of the certified ruling (24th July to 7th September, 2012), the appeal filed on 21st September, 2012 was within the thirty-day period. On the merits, the court found the learned Magistrate erred: delay in prosecuting a suit can only run up to the date the dismissal application is filed, since the plaintiff could not prosecute while that application was pending. The relevant period was from 3rd October, 2006 to 30th August, 2007, slightly over ten months, which is below the one-year threshold in Order 17 Rules 2 and 3 of the Civil Procedure Rules and not inordinate. The plaintiff had also produced medical records explaining her illness. The court allowed the appeal, set aside the lower court's decision of 17th July, 2012, dismissed the Respondent's application dated 2nd May, 2007 with no order as to costs, and directed each party to bear their own costs of the appeal.

Key legal issues

Whether the appeal was filed out of time under Section 79G of the Civil Procedure Act

Holding

The appeal was filed within time; the period certified as requisite for preparation of the certified copy of the ruling is excluded from the thirty-day computation.

Reasoning

Section 79G requires appeals from subordinate courts to be filed within thirty days, excluding time certified as requisite for preparing a copy of the decree or order. The Certificate of Delay showed the certified ruling was ready on 7th September, 2012. Excluding 24th July to 7th September 2012, the appeal filed on 21st September, 2012 fell within thirty days.

Whether the trial court erred in dismissing the suit for want of prosecution

Holding

Yes. The relevant delay was only about ten months (3rd October, 2006 to 30th August, 2007), less than the one year under Order 17 Rules 2 and 3, and thus not inordinate.

Reasoning

The Magistrate wrongly counted delay from June 2007 to May 2012, but once the defendant filed the dismissal application on 30th August, 2007, the plaintiff could not prosecute the suit until that application was heard. The actual delay was about ten months, under the one-year threshold in Order 17, and medical records explaining the plaintiff's illness had been produced. The dismissal was therefore erroneous.

p. 2

Legal principles established

The period for computing delay in prosecuting a suit runs only up to the date the application for dismissal for want of prosecution is filed; a party cannot be expected to prosecute the suit while a dismissal application is pending.
Time requisite for preparation and delivery of a certified copy of the ruling, as certified in a Certificate of Delay, is excluded in computing the thirty-day period under Section 79G.

Court orders

1.The lower court's decision dated 17th July, 2012 in Kitui SPMCC No. 386 of 2005 be and is hereby set aside
2.The Respondent's Application dated 2nd May, 2007 and filed on 30th August, 2007 in Kitui SPMCC No. 386 of 2005 be and is hereby dismissed with no order as to costs
3.Each party to bear his/her own costs in respect to the Appeal

Authorities

Legislation

Civil Procedure ActSection 79G
Civil Procedure Rules, 2010Order 17 Rules 2 and 3

On appeal from: Senior Principal Magistrate's Court, Kitui; Kitui SPMCC No. 386 of 2005
Jurisdiction invoked: Section 79G of the Civil Procedure Act (appeal from a Subordinate Court to the High Court)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Mercellina Kanyaa v Francis Mwanzia Kanyaa [2019] KEELC 3228 (KLR)", Case Analysis (2019). Appeal from Kitui SPMCC No. 386 of 2005 ( Memorandum of Appeal dated 16th August, 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3228/eng@2019-05-24

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