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ELCAllowedApplication dated 4th June 2021 in Petition dated 23rd June 2015 (ELC Petition, Machakos)· [2021] KEELC 274 (KLR)

Simon Wambua Mukula. & 10 others v Attorney General & 3 others [2021] KEELC 274 (KLR)

Environment and Land Court
14 December 2021
GKG. Kimani
1,553 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Kitui allowed landowners permission to appeal after their long-running compensation case was dismissed, provided they file the appeal within 30 days.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitui (G. Kimani, J) determined an application dated 4th June 2021 by the Petitioners seeking leave to appeal against the court's ruling of 28th May 2021 (Angote J) dismissing their petition, filed in 2015, for want of prosecution. The petition concerned threatened eviction from approximately 30 kilometres of the Kitui-Kanyonyo road reserve, compulsory acquisition of land, demolition of properties and alleged violations of Articles 27, 28, 29, 35, 40, 43, 47 and 50 of the Constitution. The Petitioners argued there is no automatic right of appeal against an Order 17 dismissal and that leave must be sought, which they had done within time. The 2nd Respondent (Kenya National Highways Authority, per the affidavit of Samwel Odoyo Orwa) opposed, contending the petitioners had shown little interest in prosecution, that leave requires substantive reasons, and that public interest in the authority discharging its statutory mandate over road reserves weighed against leave. The court framed a single issue: whether proper, sufficient and credible grounds existed to exercise discretion in the applicants' favour. Adopting the factors in Fakir Mohamed v Joseph Mugambi, the court agreed with the dismissal ruling but held the claims were weighty, the notice of appeal and application were filed promptly, and no prejudice would arise since the interim conservatory orders lapsed upon dismissal. The application was allowed on condition that the appeal be filed within 30 days, failing which the leave lapses. No costs order was made.

Key legal issues

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01

Whether leave to appeal against dismissal of a petition for want of prosecution should be granted

Holding

Leave was granted; the applicants were found to have filed their notice of appeal and application promptly, the appeal raises weighty constitutional claims, and the respondents would suffer no prejudice since the interim conservatory orders lapsed with the dismissal of the petition.

Reasoning

The court held that leave under Section 75 CPA and Order 43 CPR is discretionary and judicial. Applying the Fakir Mohamed factors (delay, reasons, chances of success, prejudice), the court found the delay in seeking leave was reasonable, the claims involved compulsory acquisition of land and Bill of Rights violations, and any prejudice was mitigated because the conservatory orders lapsed upon dismissal, leaving the respondents free to discharge their statutory mandate pending appeal.

p. 3

Legal principles established

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  • An appeal from an order dismissing a suit for want of prosecution under Order 17 of the Civil Procedure Rules does not lie as of right; leave of the court is required.
  • In exercising discretion to grant leave, the court considers the length of and reasons for delay, chances of the appeal succeeding, and prejudice to the respondent.

Court orders

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  1. 1.The application dated 4th June 2021 is allowed, granting the Applicants leave to appeal to the Court of Appeal against the ruling of 28th May 2021
  2. 2.Leave granted on condition that the Petitioners file their appeal within 30 days from the date of the ruling, failing which the leave shall forthwith lapse

Authorities

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Legislation

  • Civil Procedure ActSection 75
  • Civil Procedure RulesOrder 17
  • Civil Procedure RulesOrder 43 Rules (2) and (3)
  • Constitution of Kenya 2010Articles 27, 28, 29, 35, 40, 43, 47 and 50

Cases cited (5)

  • Fakir Mohamed vs. Joseph Mugambi & 2 others
    [2005] eKLR
  • Mutiso vs. Mwangi
    Civil Appl. NAI. 255 of 1997 (UR)
  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR 486
  • Major Joseph Mwereri Igweta vs. Murika M'Ethare & Attorney General
    Civil Appl. NAI. 8/2000 (UR)
  • Murai v Wainaina (No 4)
    [1982] KLR 38
Jurisdiction invoked
Order 43 Rule 3 of the Civil Procedure Rules; Section 75 of the Civil Procedure Act and Order 43 Rules (2) and (3)

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, "Simon Wambua Mukula. & 10 others v Attorney General & 3 others [2021] KEELC 274 (KLR)", Case Analysis (2021). Application dated 4th June 2021 in Petition dated 23rd June 2015 (ELC Petition, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/274/eng@2021-12-14

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