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ELCAllowedNot stated in the judgment (arising from KILGORIS PMC ELC NO. 35 OF 2018)· [2021] KEELC 1393 (KLR)

Leboi Ole Nairenke & another v Samwel Sheshoroi [2021] KEELC 1393 (KLR)

High Court of Kenya, Environment and Land Court
25 October 2021
EWEmmanuel M. Washe
950 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kilgoris dismissed a land appeal that sat idle for 20 months, confirming that Kenyan courts will not tolerate unexplained delay in prosecuting appeals.

What this practically means

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Executive summary

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This was an unopposed application by the Respondent/Applicant seeking dismissal of the Appellants/Respondents' Memorandum of Appeal, filed on 9th December 2019 against the judgment and decree in Kilgoris PMC ELC No. 35 of 2018, for want of prosecution. The application, supported by an affidavit of Samuel Sheshoroi sworn on 8th March 2021, was premised on the ground that over a year had elapsed since the Memorandum of Appeal was filed and served without the Record of Appeal being filed, indicating that the appellants had lost interest. The application was properly served on the appellants' counsel, Messrs Leina Morintat & Company, Advocates, who did not attend the hearing on 14th October 2021, leaving the application unopposed. The court analysed Section 79G of the Civil Procedure Act, Cap 21, holding that an appellant must file both the Memorandum of Appeal and the Record of Appeal within the prescribed timelines, and that the word 'shall' is mandatory. The court found no record of any effort by the appellants to prepare the Record of Appeal or prosecute the appeal, and no communication of any difficulties in obtaining court documents. The inaction of over twenty months was held to be inordinate and unjustified, and the applicant was found entitled to termination of the appeal because litigation must come to an end. The court allowed the application as prayed, dismissing the appeal for want of prosecution, with costs to the applicant.

Key legal issues

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01

Dismissal of appeal for want of prosecution

Holding

The Application was unopposed and the appellants had left the Memorandum of Appeal unattended for over twenty months without justification, warranting dismissal

Reasoning

Section 79G of the Civil Procedure Act requires an appeal from a subordinate court to be filed within thirty days. The appellants filed a Memorandum of Appeal but never filed a Record of Appeal, offered no explanation for the delay, and their counsel did not attend the hearing despite proper service. Their inaction of over twenty months was inordinate and indicated lack of interest, and the applicant had a right to terminate the appeal.

p. 2

Legal principles established

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  • An appellant must file both the Memorandum of Appeal and the Record of Appeal within the prescribed timelines, and the word 'shall' in Section 79G is mandatory
  • Inordinate and unexplained inaction in prosecuting an appeal justifies dismissal for want of prosecution because litigation must come to an end

Court orders

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  1. 1.The Application dated 6th March 2021 by the Respondent/Applicant is allowed as prayed
  2. 2.Dismissal of the Memorandum of Appeal dated 5th December 2019 and filed in court on 9th December 2019 for want of prosecution
  3. 3.Costs of the Application and the Appeal to be borne by the Appellants/Respondents

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 79G
On appeal from
Principal Magistrate's Court, Kilgoris
KILGORIS PMC ELC NO. 35 OF 2018
Jurisdiction invoked
Appellate jurisdiction of the High Court over subordinate courts under Section 79G of the Civil Procedure Act, Cap 21

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, "Leboi Ole Nairenke & another v Samwel Sheshoroi [2021] KEELC 1393 (KLR)", Case Analysis (2021). Not stated in the judgment (arising from KILGORIS PMC ELC NO. 35 OF 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1393/eng@2021-10-25

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