Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMemorandum of appeal dated 7.2.2020 (not otherwise numbered in judgment)· [2022] KEELC 1949 (KLR)

Mundusi Investment Ltd v Patrick Kimathi M’mugambi & another [2022] KEELC 1949 (KLR)

Environment and Land Court
26 January 2022
2,741 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A landowner's trespass appeal failed because he missed court dates, ignored conditions for reinstating his case, and offered no good excuse.

What this practically means

#

Executive summary

#
This is a first appeal to the Environment and Land Court at Meru (Nzili, ELC J) against a ruling of the lower court dated 8.1.2020 declining to review and reinstate the appellant's trespass suit over Plot No. 6 Kithirune Market. The original plaint sought declaratory orders and a permanent injunction against the respondents for encroachment. A consent order of 30.1.2008 had directed a joint survey and scene visit; a report was filed on 17.2.2008. The suit was dismissed for non-prosecution on 30.9.2015, reinstatement refused on 21.2.2018, then reinstated on 21.11.2018 on conditions (payment of adjournment fees and throw-away costs) with a hearing fixed for 10.12.2018. Neither party attended, and the suit was dismissed under Order 17 rule 2(1). A further application for review filed on 2.9.2019 was declined, prompting this appeal. The court held the appeal was properly on record, but found Order 17 rule 2(1) inapplicable, Order 12 rule 3 being the correct provision. On the merits, the court found the appellant indolent, had not complied with the reinstatement conditions, gave no reasons for non-attendance, and blamed counsel without an affidavit from counsel. The scene visit order had been by consent and had lapsed; a boundary report already existed; and the plaint did not seek boundary reinstatement. The appeal was dismissed with costs.

Key legal issues

#
01

Whether the appeal was properly before the court (filed within time)

Holding

The appeal was filed within time and the order appealed against formed part of the record

Reasoning

The ruling appealed against was delivered on 8.1.2020 and the memorandum of appeal dated 7.2.2020 was filed within time; the order appealed against formed part of the record of appeal.

p. 2
02

Whether the correct procedural rule (Order 17 rule 2(1) or Order 12 rule 3) applied to the dismissal of 10.12.2018

Holding

Order 17 rule 2(1) was inapplicable because the suit had just been reinstated and a hearing date set; Order 12 rule 3 was the applicable provision

Reasoning

Since the court had reinstated the suit on 21.11.2018 and fixed hearing for 10.12.2018, the dismissal of a party who fails to attend a fixed hearing falls under Order 12 rule 3, not Order 17 rule 2(1) on non-prosecution.

p. 3
03

Whether the trial court erred in declining to review/set aside the dismissal

Holding

The trial court properly exercised its discretion; the appellant was indolent, did not comply with reinstatement conditions and gave no reasons for non-attendance

Reasoning

The appellant never explained its non-attendance on 10.12.2018, never complied with the adjournment fees and throw-away costs conditions, and blamed counsel without an affidavit from counsel owning the mistake. The scene visit orders were by consent and lapsed; a boundary report already existed, and the plaint sought declaratory and injunctive relief only, so the missing scene visit was not decisive.

p. 3

Legal principles established

#
  • Court orders are not made in vain; a party seeking the court's discretion must show good faith and compliance with previous court orders.
  • The court is under no obligation to order suo moto scene visits or expert reports, especially where a report already exists.
  • The duty to procure attendance of witnesses lies with the litigant, not its advocates.

Court orders

#
  1. 1.The appeal is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 17 rule 2 (1)
  • Civil Procedure RulesOrder 12 Rule 3
  • Civil Procedure RulesOrder 12 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Constitution of KenyaArticle 159

Cases cited (18)

  • Selle –vs- Associated Motor Boat Company Ltd & Another
    (1968) EA 123
  • Ivita -vs- Kyumba (Kyumbua)
    (1984) KLR 441
  • CMC Holdings Ltd –vs- Nzioki
    [2004] 1 KLR 173
  • Philip Chemwolo & another –vs- Augustine Kubede
    (1982-88) KAR/03
  • Joshua Chelelgo Kulei –vs- Republic & 9 others
    [2014] eKLR
  • Argan Wekesa Okumu –vs- Dima College Limited & 2 Others
    [2015] eKLR
  • Daniel Kimani Njihia –vs- Francis Mwangi Kimani & Another
    [2015] eKLR
  • Sum Model Industries Ltd –vs- Industrial & Commercial Development Corporation & Another A.G
    [2010] eKLR
  • Toroitich Misoi Mereng –vs- Simeon Kiprotich Katam
    [2019] eKLR
  • George Gatere Kibata –vs- George Kuria Mwaura & Another
    [2017] eKLR
  • Mwangi S. Kaimenyi –vs- Attorney General & Another
  • Bilha Ngonyo Isaac –vs- Kembu Farm & Another
    [2018] eKLR
  • Kenya Power & Lighting Co. Ltd –vs- Alliance Media Kenya Ltd
    [2014] eKLR
  • Richard Ncharpi Leiyagu –vs- IEBC & 2 Others
    [2013] eKLR
  • Elosy Murugi Nyaga –vs- Tharaka Nithi County Government & another
    [2020] eKLR
  • Ruga Distributors Limited –vs- Nairobi Bottlers Limited
    [2015] eKLR
  • Savings & Loans Ltd –vs- Susan Wanjiru Muritu
    [2002] eKLR
  • Gidion Sitelu Konchella –vs- Daima Bank Ltd
    [2013] eKLR
On appeal from
Lower court (trial court - not specifically named in the judgment)
Suit over Plot No. 6 Kithirune market, plaint dated 6.10.2007
Jurisdiction invoked
First appeal from the lower court's ruling dismissing an application for review and reinstatement (jurisdiction not expressly grounded on a cited provision in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Mundusi Investment Ltd v Patrick Kimathi M’mugambi & another [2022] KEELC 1949 (KLR)", Case Analysis (2022). Memorandum of appeal dated 7.2.2020 (not otherwise numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1949/eng@2022-01-26

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