Henry Khejeri v Eldochem Limited [2021] KEELC 500 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an appeal dormant for over 23 years and released the judgment money to the decree holder.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant's delay in prosecuting the appeal was inordinate and inexcusable
Yes; the cumulative delay of about 23 years in prosecuting the appeal was inordinate, and no explanation was offered as the Appellant filed no response despite service, so the Memorandum of Appeal was struck out and stay vacated
The Applicant obtained an interlocutory judgment in 1998; the Appellant filed a draft defence and stay application only in 2006, and after the consent stay of March 2010 did nothing for over eleven years. Applying Ivita v Kyumbu and later authorities, the test is whether the delay is prolonged and inexcusable and whether justice can still be done. The burden of explaining delay lay on the Appellant, who filed no response. Article 159(2)(b) and the overriding objectives of the Civil Procedure Act and the Environment and Land Court Act demand expeditious disposal. The Appellant breached these principles.
Whether the Applicant, as decree holder, should have the decretal funds released
Yes; upon striking out the appeal and vacating the stay, the Applicant became entitled to the fruits of its judgment and the deposited decretal sum plus interest was ordered released to its counsel
Having consented to stay in good faith on condition that the decretal sum be deposited in a joint interest-earning account, and the Appellant having failed for over a decade to prosecute the appeal, the continuation of the stay would perpetually deny the Applicant the fruits of its judgment. With the appeal struck out and stay vacated, the funds held in the joint account had to be released to the Applicant through its advocates on record.
Legal principles established
#- What amounts to inordinate delay is a question of the facts and circumstances of each case; the party whose delay is complained of must justify it as excusable, and prejudice to the complaining party is relevant
- An appellant bears a mandatory obligation under Order 42 Rule 13(1) of the Civil Procedure Rules to cause an appeal to be listed for directions within 21 days of filing the memorandum of appeal, and abdication of the duty to prosecute an appeal for inordinate and inexcusable delay justifies striking out the appeal
Court orders
#- 1.The Memorandum of Appeal dated 31st October, 2006 is struck out and the stay of execution order of 16th March, 2010 is vacated forthwith
- 2.The decretal sum and all accrued interest held in ABC Bank – Eldoret Branch Account in the names of Hilary Kiplagat Chemitei and Wilson Kiplagat Kalya is to be released to the Applicant through its counsel on record M/s Kalya & Company Advocates
- 3.Costs are awarded to the Applicant
- On appeal from
- Chief Magistrate's Court, Eldoret
- Eldoret CMCC No. 98 of 1998
- Jurisdiction invoked
- Sections 1A and 1B of the Civil Procedure Act (Cap 21); Order 42 Rule 13(1) of the Civil Procedure Rules; section 19(1) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Khejeri v Eldochem Limited [2021] KEELC 500 (KLR)", Case Analysis (2021). Eldoret CMCC No. 98 of 1998 (appeal therein; Notice of Motion dated 5th March, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/500/eng@2021-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.