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ELCPartially AllowedNot stated in the judgment (appeal against decision in RMCC No. 3 of 2011, Garissa)· [2019] KEELC 4892 (KLR)

Shamsa Mohamed Hussein & another v Sale Rage Bulle & another [2019] KEELC 4892 (KLR)

Environment and Land Court
30 January 2019
ECE. C. Cherono
1,314 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court revived a long-stalled land appeal on strict conditions, showing that even gross delay can be forgiven if you pay up and act fast.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court (E. C. Cherono, ELC Judge) on a Notice of Motion dated 14th November 2018 brought by the Appellant under Section 3A & 63 CPR, Order 42 Rules 22, 6 and 35 and Order 45 Rules 1 and 2 CPR. The appeal, arising from RMCC No. 3 of 2011 (Garissa), had been dismissed for want of prosecution by order of 18th September 2018, confirming an earlier direction of 16th March 2017 that the appeal stand dismissed if not prosecuted within 21 days. The Appellant sought setting aside of that dismissal and a stay of execution of the lower court decree, contending that failure to prosecute was caused by a missing court file, that her advocate was never served with notice of the 18th September 2018 session, and that the appeal had high chances of success. The Respondent, Salah Rage Bulle, opposed, describing the explanations as excuses and seeking to enjoy the fruits of the lower court judgment. The court held that the dismissal order had crystallized automatically upon the Appellant's default and that the 18th September 2018 proceedings were merely an affirmation requiring no attendance. Nevertheless, exercising its discretion, the court allowed the application on terms: the Appellant to pay throw away costs of Kshs. 10,000 within 7 days, after which the court would give directions on the hearing of the appeal. Judgment read and delivered in open court on 30th January 2019.

Key legal issues

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01

Whether the dismissal of the appeal for want of prosecution should be set aside

Holding

The court, exercising its discretion, set aside the effect of the dismissal by allowing the application on terms (throwaway costs and subsequent directions on hearing of the appeal).

Reasoning

The court found that the appellant's explanation for the delay - a missing court file and failed attempts to fix the matter for hearing - was accepted earlier on condition that steps be taken within 21 days. Although default occurred, the court balanced the appellant's demonstrated commitment against the respondent's entitlement to enjoy the decree, and exercised its discretion to revive the appeal upon payment of throwaway costs, with directions to follow for the hearing of the appeal.

p. 2
02

Whether service/attendance was necessary for the order of 18th September 2018

Holding

No - the 18th September 2018 order was an affirmation of an already-crystallized dismissal, not a fresh dismissal requiring the appellant's presence.

Reasoning

The court reasoned that the dismissal order took effect automatically once the appellant failed to comply with the 16th March 2017 directions to prosecute the appeal within 21 days. What occurred on 18th September 2018 was merely the affirmation of that order. Consequently, the absence of the appellant's advocate on that date caused no prejudice, and the claim of being unrepresented at the dismissal could not ground setting aside.

p. 2

Legal principles established

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  • Where an appeal is conditionally allowed to be set down for hearing within a stipulated period failing which it stands dismissed, the dismissal crystallizes automatically on default and does not require the presence of the appellant or his advocate when the court affirms it.

Court orders

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  1. 1.The application dated 14th November 2018 is allowed on the following terms:
  2. 2.The Appellant to pay the Respondent throw away costs of Kshs.10,000/= within 7 days from today
  3. 3.This court will thereafter give directions on the hearing of this Appeal

Authorities

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Legislation

  • Civil Procedure RulesSection 3A
  • Civil Procedure RulesSection 63
  • Civil Procedure RulesOrder 42 Rule 22
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42 Rule 35
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 45 Rule 2
On appeal from
Principal Magistrate's Court, Garissa
RMCC No. 3 of 2011 (Garissa)
Jurisdiction invoked
Section 3A & 63 Civil Procedure Rules, Order 42 Rules 22, 6, 35 and Order 45 Rules 1 & 2 CPR and all enabling provisions of the law

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, "Shamsa Mohamed Hussein & another v Sale Rage Bulle & another [2019] KEELC 4892 (KLR)", Case Analysis (2019). Not stated in the judgment (appeal against decision in RMCC No. 3 of 2011, Garissa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4892/eng@2019-01-30

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