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ELCDismissedNot clearly stated on record (ELC Appeal at Isiolo; applicant refers to 'ELC Appeal No. (Sic) of 2021')· [2022] KEELC 1085 (KLR)

Anna Amina (Suing as the administrator of estate of Elema Bonaya (Deceased) v Roba Elama Bonaya [2022] KEELC 1085 (KLR)

Environment and Land Court
7 March 2022
PNP. M. Njoroge
957 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 in Isiolo refused to reinstate an appeal dismissed for want of prosecution, ruling years of inaction were not a curable technicality.

What this practically means

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Executive summary

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The applicant, through her advocate Ian Mokotsi, applied by notice of motion dated 4th June 2021 to set aside and vary the dismissal of her appeal (filed 1st July 2020 against the judgment of Hon. SRM Mbayaki Wafula in Marsabit PMCC No. 32 of 2018) and to have the appeal reinstated for hearing on merit, with the annexed record of appeal deemed properly filed. She attributed the failure to file a Record of Appeal to e-filing bureaucracy and the unavailability of typed proceedings, and contended that the dismissal of 4th May 2021 was made ex-parte without notice to her or her advocates and rested on a curable technicality. The respondent opposed, arguing the applicant had not explained the failure to file a record of appeal since 23rd February 2021 nor her repeated non-attendance at numerous mentions, and that the dismissal was proper. The court noted that since the Memorandum of Appeal was filed on 3rd July 2020, no Record of Appeal was ever filed and the appeal was never admitted; the matter had been listed at least four times in 2020 and at mentions on 28th January 2021 and 18th March 2021 without the applicant attending, despite proper service. The applicant also failed to file written submissions as directed on 15th November 2021. The court agreed with the respondent's grounds of opposition, held the dismissal was a lawful step and not a mere technicality, and found the applicant indolent. The application was dismissed with costs to the respondent on 7th March 2022.

Key legal issues

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01

Whether the ex-parte dismissal of the appeal should be set aside

Holding

The dismissal was lawful and will not be set aside

Reasoning

The court found that despite proper service and multiple mention dates (four mentions in 2020, and mentions on 28/1/2021 and 18/3/2021), the applicant and her advocates failed to attend or file a Record of Appeal. The dismissal therefore followed compliance with directions and was not a technicality curable by reinstatement.

p. 2
02

Whether the applicant's explanation of e-filing bureaucracy excused the delay

Holding

No

Reasoning

The applicant attributed the failure to file a Record of Appeal to e-filing bureaucracy and slow online assessment. The court found this unconvincing given the applicant's continued indolence, including failure to file submissions in the very application before the court as directed on 15/11/2021.

p. 2

Legal principles established

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  • A party must diligently prosecute an appeal; failure to file a Record of Appeal as directed justifies dismissal
  • An appeal cannot be maintained merely as a placeholder for a pending suit

Court orders

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  1. 1.This application is hereby dismissed
  2. 2.Costs are awarded to the respondent
On appeal from
Chief Magistrate's Court
Marsabit PMCC No. 32 of 2018
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the appeal and the reinstatement application (specific provision not stated in the judgment)

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, "Anna Amina (Suing as the administrator of estate of Elema Bonaya (Deceased) v Roba Elama Bonaya [2022] KEELC 1085 (KLR)", Case Analysis (2022). Not clearly stated on record (ELC Appeal at Isiolo; applicant refers to 'ELC Appeal No. (Sic) of 2021'). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1085/eng@2022-03-07

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