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ELCDismissedNot stated (appeal filed 16th July 2020, ELC Appeal from Chief Magistrate's Court Bungoma)· [2022] KEELC 1198 (KLR)

Richard Simon Obero v Penina Namulisa Nakhisa & another [2022] KEELC 1198 (KLR)

Environment and Land Court
17 February 2022
BOBoaz N. Olao
648 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to dismiss an appeal for delay because the lower court's failure to send the case file, not the appellant, caused the holdup.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Bungoma (Boaz N. Olao, J) determined a Notice of Motion by the Respondent seeking dismissal of the Appellant's appeal, filed on 16th July 2020, for want of prosecution. The Respondent's Counsel, Mr Simiyu Makokha, averred that the Appellant had failed, neglected or refused to set down the appeal for hearing since filing. The Appellant's Counsel, Mr Henry Kepha Onyando, opposed the application through a replying affidavit showing that although the Record of Appeal had been prepared and filed on 27th November 2020, the appeal could not be admitted because the lower court file had not been forwarded despite repeated efforts. The Deputy Registrar had called for the record from September 2020, and Appellant's Counsel wrote five letters to the Chief Magistrate, Bungoma between December 2020 and November 2021, none of which were answered. The court held the application premature and dismissed it with costs, finding compelling reasons beyond the Appellant's control explained the delay. The judge also noted that twenty-nine appeals were pending before the court awaiting records from the subordinate court, the oldest being Appeal No 3 of 2018, and invited the new Chief Magistrate to investigate delays in transmission of records and take remedial action. The court directed that preparation and transmission of the record in this appeal be expedited. The ruling was delivered electronically on 17th February 2022 in keeping with COVID-19 pandemic guidelines.

Key legal issues

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01

Whether the appeal had lain unprosecuted for over one year through the Appellant's fault

Holding

The application was premature; the Appellant had filed the Record of Appeal and the delay arose from the lower court file not being forwarded despite repeated requests by Counsel and the Deputy Registrar.

Reasoning

The appeal was filed on 16th July 2020 and the Record of Appeal on 27th November 2020. From September 2020 the Deputy Registrar repeatedly called for the lower court record, and Appellant's Counsel wrote letters dated 4th December 2020, 23rd January 2021, 24th March 2021, 12th July 2021 and 22nd November 2021 to the Chief Magistrate, none of which were answered. Since the appeal could not be admitted without the record, the non-prosecution was not the Appellant's doing and the dismissal application failed.

p. 2

Legal principles established

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  • An appeal cannot be dismissed for want of prosecution where the delay in its admission is caused by the non-transmission of the lower court record and not by the appellant's inaction

Court orders

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  1. 1.The Respondent's Notice of Motion seeking dismissal of the appeal for want of prosecution is dismissed with costs
  2. 2.The preparation and transmission of the record of appeal from the lower court be expedited
  3. 3.The Chief Magistrate, Bungoma is invited to investigate delays in transmission of records and take remedial action, including ensuring correspondence calling for records is responded to

Authorities

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Cases cited (1)

  • APOLLO OMUSULA MANYASI .V. KARIUKI KIRAGU
    ELC Appeal No 10 of 2020
On appeal from
Chief Magistrate's Court Bungoma

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, "Richard Simon Obero v Penina Namulisa Nakhisa & another [2022] KEELC 1198 (KLR)", Case Analysis (2022). Not stated (appeal filed 16th July 2020, ELC Appeal from Chief Magistrate's Court Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1198/eng@2022-02-17

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