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ELCDismissedELC Case No. 92 of 2018 (formerly ELC Appeal No. 8 of 2015; Civil Appeal No. 380 of 2011)· [2020] KEELC 3844 (KLR)
Macharia Kamochio & 3 others v Commissioner for Co-operative Development and Marketing & another; Mburu Kinani (Interested Party) [2020] KEELC 3844 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#An appeal in Kenya can be thrown out entirely if you skip the hearing and fail to file submissions, even when your case might have merit.
What this practically means
#Executive summary
#This was an appeal to the Environment and Land Court at Nakuru arising from the Commissioner for Co-operative Development's cancellation, on 26th November 2007 under Section 62(1)(c) of the Co-operative Societies Act, of the registration of Kanyeki Farmers Co-operative Society Ltd, a land buying co-operative registered in 1977 that had acquired L.R. 3777/325 of about 1,126 acres. No appeal was lodged with the Minister within thirty days as required by Section 62(2). The appellants later applied in ministerial Appeal No. 05 of 2009 for extension of time to appeal against the cancellation and liquidation orders; the Minister dismissed the application in a ruling of 7th June 2011 which also addressed the merits. The appeal was filed in the High Court in 2011, transferred to ELC Milimani in 2015, and to Nakuru ELC in 2018. The grounds of appeal challenged the Minister's findings that the society had achieved its objectives, that no assets remained, and that the appellants were not the duly elected management committee. At the hearing, neither the appellants nor the respondents attended, and the appellants filed no submissions; only the interested party argued, contending there was no valid appeal since none had been filed within the statutory period, and urging dismissal with costs. The court held that under Order 42 Rules 19 and 20 of the Civil Procedure Rules an appeal may be dismissed where the appellant does not appear and has filed no submissions, and although the rule is permissive, it saw no reason not to dismiss. The appeal was dismissed with costs to the interested party.
Key legal issues
#01
Consequences of an appellant's non-attendance and failure to file submissions
Holding
The court may dismiss the appeal under Order 42 Rule 20 even where the rule is permissive, especially where the opposing party urges dismissal
Reasoning
Order 42 Rule 19 requires the appellant to be heard in support of the appeal, and Rule 20 permits dismissal where the appellant does not appear. Although Rule 20 is permissive, the interested party urged dismissal, and the appellants neither attended nor filed submissions. The court found no merit-based consideration necessary and invoked the rule, noting it was not too late to do so even after the hearing date.
p. 2
Legal principles established
#- Where an appellant does not appear at the hearing of an appeal and has not filed written submissions, the court may dismiss the appeal under Order 42 Rule 20 of the Civil Procedure Rules
- Respondents and other opposing parties need only respond if the appellant advances arguments in support of the appeal
Court orders
#- 1.Appeal dismissed under Order 42 Rule 20 of the Civil Procedure Rules
- 2.Costs of the appeal awarded to the interested party
- On appeal from
- Minister for Co-operative Development and Marketing
- Ministerial Appeal No. 05 of 2009
- Jurisdiction invoked
- Appeal under the Co-operative Societies Act (Section 62) against a ministerial decision; transferred to ELC by orders of the High Court and ELC Milimani
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macharia Kamochio & 3 others v Commissioner for Co-operative Development and Marketing & another; Mburu Kinani (Interested Party) [2020] KEELC 3844 (KLR)", Case Analysis (2020). ELC Case No. 92 of 2018 (formerly ELC Appeal No. 8 of 2015; Civil Appeal No. 380 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3844/eng@2020-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.