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ELCPartially AllowedNotice of Motion dated 28th June, 2021· [2022] KEELC 1270 (KLR)

James Kinyua Migwi v Antony Wachira Wangari & another [2022] KEELC 1270 (KLR)

Environment and Land Court
2 November 2021
2,164 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a nine-year-old land appeal because the appellant did nothing, ruling Covid-19 was no excuse since courts worked virtually.

What this practically means

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Executive summary

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The applicant, who had purchased the suit property Land Parcel Registration No. Inoi/Kariki/2594 at a public auction, moved the court by Notice of Motion dated 28th June, 2021 seeking dismissal of an appeal for want of prosecution. The appeal challenged a trial court ruling on an application brought under Order 22 Rule 75 of the Civil Procedure Rules. The applicant argued that the appellant had gone to slumber after obtaining interim stay orders in 2012, that no record of appeal had been filed five years after admission of the appeal in October 2015, and that the appeal was incompetent for want of leave under Order 43. The respondent blamed the delay on the Covid-19 pandemic, court closures, difficulty in obtaining dates, and the absence of directions under Order 42 Rule 35. The court found the citation of Order 17 Rule 2(3) rather than Order 42 Rule 35 to be an immaterial procedural technicality cured by Order 51 rule 10. On competency, the court found the appeal had been filed with leave, as an endorsement of 'Right of Appeal' by K.K Chiruiyot SRM appeared on the impugned ruling. Relying on Serephen Nyasani Menge v Rispah Onsase, Abraham Mukhola Asitsa v Silver Style Investment Company Ltd and China Road & Bridge Corporation v John Kimenye Muteti, the court held that it retains inherent discretion to dismiss an appeal for want of prosecution even before directions are taken, and that prejudice is the central consideration. The Covid-19 explanation was rejected since courts operated virtually under the Chief Justice's 2020 practice directions. The application was allowed and the appeal dismissed for want of prosecution with costs.

Key legal issues

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01

Whether the application was brought under the wrong enabling provision

Holding

The wrong citation of Order 17 Rule 2(3) instead of Order 42 Rule 35 was an immaterial procedural technicality cured by Order 51 rule 10

Reasoning

The respondent argued the application should have been brought under Order 42 Rule 35. The court held that failure to state the correct enabling order does not warrant refusal of an application, as Order 51 rule 10 provides no application shall be refused merely by reason of failure to state the provision under which it is made.

p. 2
02

Whether the appeal was incompetent for want of leave

Holding

The appeal was filed with leave as required, as indicated on the impugned ruling itself

Reasoning

The impugned ruling arose from an application under Order 22 Rule 75 which requires leave before appeal. However, the court found that page 3 of the impugned ruling bore an endorsement of 'Right of Appeal' signed by K.K Chiruiyot SRM, showing leave was granted, rendering the appeal competent on this ground.

p. 3
03

Whether the appeal could be dismissed for want of prosecution before directions were taken

Holding

Yes - the court retains discretion to dismiss an appeal for want of prosecution even absent directions

Reasoning

Relying on Abraham Mukhola Asitsa v Silver Style Investment Company Ltd, the court held that although an appeal cannot ordinarily be dismissed before directions, a party who files an appeal and goes to sleep cannot hide behind that provision. Courts have inherent power to dismiss stale appeals to avoid clogging the registry.

p. 3
04

Whether sufficient grounds existed to exercise the discretion

Holding

Yes - the respondent's explanation of Covid-related delay was unsatisfactory

Reasoning

The court found that although the pandemic interrupted normal court processes, courts continued to operate virtually under practice directions issued by the Chief Justice in 2020. The delay was therefore not adequately explained, and the appellant's indolence warranted dismissal.

p. 3

Legal principles established

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  • Where leave to appeal is a prerequisite, failure to seek and obtain it is fatal to the appeal
  • A court retains inherent discretion to dismiss an appeal for want of prosecution even where directions have not been taken
  • Procedural technicality in citing wrong enabling provision is cured by Article 159 and Order 51 rule 10
  • Prejudice is the most important consideration in dismissal for want of prosecution

Court orders

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  1. 1.The application dated 28th June, 2021 is allowed with costs
  2. 2.The appeal is dismissed for want of prosecution with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1) and 2(3)
  • Civil Procedure RulesOrder 42 Rule 35(1) and (2)
  • Civil Procedure RulesOrder 43 Rule 1(2) and (3)
  • Civil Procedure RulesOrder 51 Rule 10(1)
  • Civil Procedure RulesOrder 22 Rule 75

Cases cited (5)

  • Kenya Nut Company Ltd v Justice Musyoka Nkabi
    (2018)
  • Isaac Mbugua Ngirachu v Stephen Gichobi Kaara
    (2021)
  • Serephen Nyasani Menge v Rispah Onsase
    [2018] e KLR
  • Abraham Mukhola Asitsa v Silver Style Investment Company Ltd
    [2020] e KLR
  • China Road & Bridge Corporation v John Kimenye Muteti
    [2019] e KLR
On appeal from
null
null
Jurisdiction invoked
Order 17 Rule 2(3) of the Civil Procedure Rules (with Order 42 Rule 35 considered)

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, "James Kinyua Migwi v Antony Wachira Wangari & another [2022] KEELC 1270 (KLR)", Case Analysis (2021). Notice of Motion dated 28th June, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1270/eng@2022-02-18

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