Rose Ndunge Masila & another v Lukenya Ranching & Farming Cooperative Society Limited & another [2022] KEELC 1685 (KLR)
The bottom line
#The Environment and Land Court reinstated a dismissed land appeal and restored protection stopping the sale of four Lukenya plots — but only if the owners move fast.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissed appeal should be reinstated
Dismissal set aside and appeal reinstated because there was no affidavit of service proving the erstwhile counsel was served with the notice to show cause, and a mistake of counsel should not be visited on the litigants
The court found no affidavit of service on the record proving the erstwhile advocates were served with the notice to show cause why the appeal should not be dismissed. The appeal had also never been set down for directions under Order 42 Rule 13. Relying on Article 50(1) and authorities on the court's discretion, the judge held the dismissal was not on the merits and set it aside in the interests of justice.
Whether stay of execution should be reinstated
Stay reinstated because the appeal would be rendered nugatory without it, and the parties had previously consented to stay
The parties had entered a consent on 17 February 2012 staying execution of the Tribunal's award, which subsisted until the dismissal. Applying Order 42 Rule 6(2) on substantial loss and without unreasonable delay, the court found on the proceedings that the appeal would be nugatory if the stay were not reinstated, and granted it despite the 2nd Respondent's opposition.
Legal principles established
#- Dismissal of a case for want of prosecution is not a judgment on the merits
- A mistake of counsel should not be visited upon a litigant, and the court's discretion to set aside its orders may be exercised in the interests of justice
- Under Order 12 rule 7 the court may set aside or vary a dismissal on such terms as may be just
Court orders
#- 1.Set aside the order dismissing the Appeal dated 19 February 2021
- 2.Reinstate the Appeal for hearing and determination on its merits
- 3.Reinstate the stay of execution of the award and resultant decree of the Cooperative Tribunal in CTC NO 297 OF 2006 NAIROBI
- 4.Appellants to set the Appeal down for directions within 30 days, failing which the Appeal stands dismissed for want of prosecution and the stay orders vacated
- 5.Costs in the cause
- On appeal from
- Cooperative Tribunal
- CTC NO 297 OF 2006 NAIROBI
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the Cooperative Tribunal under the Civil Procedure Act (Order 12 rule 7 and Order 42 Rule 6(2) and 13 of the Civil Procedure Rules); Article 50(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Ndunge Masila & another v Lukenya Ranching & Farming Cooperative Society Limited & another [2022] KEELC 1685 (KLR)", Case Analysis (2022). CTC NO 297 OF 2006 NAIROBI (appeal therein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1685/eng@2022-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.