Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2020] KEELC 1164 (KLR)

Luciah Wanjiku Murima v Amica Savings and Credit Limited & another [2020] KEELC 1164 (KLR)

Environment and Land Court
30 September 2020
JKJ G Kemei
491 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

A Murang'a court threw out a repeat application to dismiss a dormant appeal, telling the applicant to let the proper court process finish first.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Murang'a (J G Kemei, J) determined a Notice of Motion brought under Order 42 Rule 35(1) of the Civil Procedure Rules seeking dismissal of the Appellant's appeal for want of prosecution. The Applicant, Jonathan Ngumo Mbogo for the Defendants, argued that over one year had elapsed since the appeal was filed without the Record of Appeal being filed or the appeal fixed for directions or hearing, causing the Applicant prejudice in increased costs and delay in the lower court suit. The court observed that an identical application had been determined on 16 January 2020, when the court held that the application was premature since no directions had been taken under Order 42 Rule 13, and directed the Deputy Registrar to issue a Notice to Show Cause under Order 42 Rule 35(2). That notice was issued on 22 January 2020, though there was no evidence of service on the Appellant. Nonetheless, before the notice was prosecuted, the Applicant filed the present duplicate application on 8 September 2020. The court held that this was an abuse of the process of the Court, invoking the inherent jurisdiction of courts to protect themselves from abuse of their own procedure as stated in Metropolitan Bank Ltd v Pooley and adopted in Githunguri v Republic [1985] KLR 91. The application was dismissed to allow the Deputy Registrar's process under Order 42 Rule 35(2) to be completed. The court directed the Deputy Registrar to expediently issue notice to the parties and list the appeal before a judge for dismissal within 14 days, and made no orders as to costs.

Key legal issues

#
01

Whether the Notice of Motion under Order 42 Rule 35(1) was competent given the pendency of the Notice to Show Cause under Order 42 Rule 35(2)

Holding

The application was premature and an abuse of the process of the Court because a similar application had already been determined on 16/1/2020 and the Deputy Registrar had issued a Notice to Show Cause under Order 42 Rule 35(2) on 22/1/2020

Reasoning

The court noted that a similar application had been determined on 16/1/2020, where it was held that the application was premature as no directions had been taken under Order 42 Rule 13, and the court directed the Deputy Registrar to issue a Notice to Show Cause under Order 42 Rule 35(2). Despite this, the Applicant filed another similar application on 8/9/2020 while the Notice to Show Cause was still pending. The court found this duplicative litigation abusive and dismissed the application to allow the statutory process to be completed.

p. 1
02

Whether the appeal should be dismissed for want of prosecution

Holding

The court did not dismiss the appeal on the Applicant's motion; instead it directed the Deputy Registrar to expediently issue notice and list the Appeal before the judge for dismissal within 14 days, preserving the statutory mechanism under Order 42 Rule 35(2)

Reasoning

Rather than grant or dismiss the appeal-dismissal relief outright, the court preserved the process already initiated by the Deputy Registrar. It ordered that the Notice to Show Cause process be completed by listing the appeal before a judge for dismissal within 14 days, thereby achieving the substantive objective through the correct procedural route while sanctioning the Applicant's abusive duplicate application.

p. 1

Legal principles established

#
  • Every court has inherent jurisdiction to protect itself from abuse of its own procedure
  • Where a Notice to Show Cause under Order 42 Rule 35(2) has been issued, a fresh application under Order 42 Rule 35(1) is premature and an abuse of process; the court should allow the notice-to-show-cause process to run its course

Court orders

#
  1. 1.The application filed under Order 42 Rule 35(1) of the Civil Procedure Rules is dismissed
  2. 2.The Hon. Deputy Registrar of the Court is ordered to expediently issue notice to the parties and list the Appeal before the judge for dismissal within the next 14 days from the date of the ruling
  3. 3.No orders as to costs - each party to bear their own costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 35(1)
  • Civil Procedure RulesOrder 42 Rule 35(2)
  • Civil Procedure RulesOrder 42 Rule 13

Cases cited (2)

  • Githunguri v Republic
    [1985] KLR 91
  • Metropolitan Bank Ltd v Pooley
    (1885) 10 App Cases, 210, p.214
On appeal from
Lower Court (Murang'a)
Jurisdiction invoked
Order 42 Rule 35(1) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Luciah Wanjiku Murima v Amica Savings and Credit Limited & another [2020] KEELC 1164 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1164/eng@2020-09-30

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