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ELCPartially AllowedCTC NO 297 OF 2006 NAIROBI (appeal therein)· [2022] KEELC 1685 (KLR)

Rose Ndunge Masila & another v Lukenya Ranching & Farming Cooperative Society Limited & another [2022] KEELC 1685 (KLR)

Environment and Land Court (Machakos)
7 February 2022
1,709 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 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

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Executive summary

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This was a ruling on the Appellants' Notice of Motion dated 17 March 2021 seeking reinstatement of their appeal, which had been dismissed for want of prosecution on 19 February 2021, and reinstatement of a consent stay of execution of the Cooperative Tribunal's award in CTC No 297 of 2006 (Nairobi). The Appellants, through Susan Mumbe Masila, blamed their erstwhile advocates for failing to prosecute the appeal or keep them informed, and warned that the Respondents would sell four plots, rendering the appeal nugatory. The 2nd Respondent opposed, citing over three years of inordinate delay since the ruling of 23 November 2017 and alleging the application was an afterthought and abuse of process. The court framed two issues: reinstatement of the appeal and reinstatement of stay. On the first, it found no affidavit of service proving the erstwhile counsel was served with the notice to show cause, held that dismissal for want of prosecution is not a judgment on the merits, that a mistake of counsel should not be visited on litigants, and invoked Article 50(1) and Order 12 rule 7 to set aside the dismissal and reinstate the appeal. On stay, it noted the subsisting 2012 consent and found the appeal would be rendered nugatory without stay. The application was allowed; the Appellants were directed to fix the appeal for directions within 30 days, failing which it would stand dismissed and the stay vacated. Costs were in the cause.

Key legal issues

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01

Whether the dismissed appeal should be reinstated

Holding

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

Reasoning

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.

p. 2
02

Whether stay of execution should be reinstated

Holding

Stay reinstated because the appeal would be rendered nugatory without it, and the parties had previously consented to stay

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Set aside the order dismissing the Appeal dated 19 February 2021
  2. 2.Reinstate the Appeal for hearing and determination on its merits
  3. 3.Reinstate the stay of execution of the award and resultant decree of the Cooperative Tribunal in CTC NO 297 OF 2006 NAIROBI
  4. 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. 5.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActOrder 12 rule 7
  • Civil Procedure RulesOrder 42 Rule 13
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Constitution of KenyaArticle 50(1)

Cases cited (11)

  • Elem Investment Ltd V John Mokora Olwoma
    (2015) eKLR
  • Rosarie (EPZ) Limited V Stanlex Mbithi James
    (2015) eKLR
  • Harrison Wanjohi Wambugu V Felista Wairimu Chege & Another
    (2013) eKLR
  • Ghehona Seventh Day Adventist Church of East Africa Union
    (2013) eKLR
  • Mwangi Kimenyi V Attorney General & Another
    (2014) eKLR
  • John Nahashon Mwangi V Kenya Finance Bank Limited (in Liquidation)
    (2015) eKLR
  • Rose Ndunge Masila & Another V Lukenya Ranching & Farming Cooperative Society Limited & Another
    (2017) eKLR
  • Habo Agencies Limited V Wilfed Odhiambo Musingo
    (2015) eKLR
  • Charles Alexander Kiai V Frasiah Wangui Gicheru & 4 Others
    (2015) eKLR
  • MWK Vs AMW
    (2016) eKLR
  • Bilha Ngony Isaack Vs Kembu Farm Limited & Another
    Civil Appeal No. 145 of 2014
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

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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, "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.