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ELCDismissed· [2020] KEELC 2665 (KLR)

Gitonga Nyaga Boore v Nyaga Boore Kanyoro (Environment and Land Appeal 12 of 2019) [2020] KEELC 2665 (KLR)

High Court of Kenya
5 May 2020
PNP. M. Njoroge
803 words in judgment
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The bottom line

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The High Court in Chuka threw out a land appeal because the appellant never served the other side, attended hearings, or filed a supporting affidavit.

What this practically means

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Executive summary

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This is a High Court ruling at Chuka (P. M. Njoroge, J) explaining the summary rejection of an intended appeal under section 79B of the Civil Procedure Act. The intended appellant sought, by chamber summons dated 28th February 2020, orders of inhibition over LR Mwimbi South Mugumango 34, vacation of ex-parte orders issued by the Chief Magistrate at Chuka on 10th July 2019, reinstatement of a caution registered on the suit land, and costs. The application cited section 128(1) of the Registered Land Act, section 3A of the Civil Procedure Act and Order 1 Rule 17 of the Civil Procedure Rules, but had no supporting affidavit. On 19th March 2020 the court directed the applicant to serve the memorandum of appeal and the application on the respondent within 14 days and fixed inter partes hearing for 7th April 2020, later moved to 5th May 2020 due to the coronavirus crisis. On both dates the applicant neither attended nor provided evidence of service. The court dismissed the application on 5th May 2020. Perusing the lower court proceedings, the judge found no sufficient ground to interfere with the lower court's decision and summarily rejected the intended appeal under section 79B of the Civil Procedure Act. No costs order was made in the final ruling. The decision is a procedural, first-instance ruling on an intended appeal rather than a determination on the merits of the land dispute.

Key legal issues

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01

Whether the intended appeal should be summarily rejected under section 79B of the Civil Procedure Act

Holding

Yes. The intended appeal was summarily rejected because the applicant neither attended court nor served the respondent despite directions, and perusal of the lower court record disclosed no sufficient ground to interfere with the decision of 10th July 2019.

Reasoning

The court had on 19th March 2020 directed the applicant to serve the memorandum of appeal and the application on the respondent within 14 days, with inter partes hearing on 7th April 2020, later moved to 5th May 2020 owing to the coronavirus crisis. On both dates the applicant was absent and there was no evidence of service. Examining the lower court proceedings, the judge found no sufficient ground to interfere, and exercised the summary rejection power under section 79B.

p. 2

Legal principles established

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  • Where an intended appellant fails to prosecute his application, fails to serve the respondent, and the lower court record discloses no sufficient grounds of interference, the court may summarily reject the intended appeal under section 79B of the Civil Procedure Act

Court orders

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  1. 1.The application dated 28th February 2020 was dismissed on 5th May 2020 after the applicant failed to attend court and failed to serve the respondent
  2. 2.The intended appeal was summarily rejected in terms of section 79B of the Civil Procedure Act

Authorities

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Legislation

  • Civil Procedure ActSection 79B
  • Civil Procedure ActSection 3A
  • Registered Land ActSection 128(1)
  • Civil Procedure RulesOrder 1 Rule 17
On appeal from
Chief Magistrate's Court, Chuka
Not stated in the judgment
Jurisdiction invoked
Section 79B of the Civil Procedure Act (summary rejection of intended appeals)

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, "Gitonga Nyaga Boore v Nyaga Boore Kanyoro (Environment and Land Appeal 12 of 2019) [2020] KEELC 2665 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2665/eng@2020-05-05

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