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ELCPartially AllowedNot stated in judgment· [2022] KEELC 3019 (KLR)

Karirimbi & 3 others v Gachoki (Environment and Land Appeal 6 of 2018) [2022] KEELC 3019 (KLR)

Environment and Land Court
27 May 2022
1,043 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 in Kerugoya dismissed an appeal the appellants sat on for three years, warning that Covid-19 was no excuse for delay.

What this practically means

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Executive summary

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The applicant filed a Notice of Motion dated May 7, 2021 seeking dismissal of the appellants' appeal, filed January 8, 2017 and admitted in May 2018, for want of prosecution, with costs. He argued that the appellants had failed to file the record of appeal for nearly three years, had failed to appear at a mention despite service, and had demonstrated loss of interest even after the application was filed. The appellants opposed through grounds of contention that directions under Order 42 rule 13 had not been given, rendering the application premature, and that the Covid-19 pandemic and its variants disrupted ordinary court operations and should be excluded in computing time under Order 42 rule 35(1); they sought instead that directions issue for disposal of the appeal by written submissions within seven days. The court found that the Deputy Registrar had, by notice dated May 31, 2018, given directions under Order 42 rule 13(4) for preparation and filing of the record of appeal, service and fixing for directions, and that the appellants had neither complied nor explained their non-compliance. The Covid-19 excuse was rejected because courts continued operating virtually under the Chief Justice's 2020 practice directions and this court conducted matters observing Ministry of Health guidelines. Holding that equity does not aid the indolent, and that the appellants had gone to slumber and lost interest, the court allowed the application, dismissed the appeal for want of prosecution, and awarded costs to the applicant. Judgment delivered at Kerugoya on May 27, 2022.

Key legal issues

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01

Whether the application was premature for want of directions under Order 42 rule 13

Holding

Directions under Order 42 rule 13(4) had in fact been given by the Deputy Registrar on May 31, 2018, so the application was competent

Reasoning

The court perused the notice dated May 31, 2018 showing the Deputy Registrar directed the appellants to prepare and file the record of appeal, serve respondents and fix the matter for directions. The appellants neither complied with nor explained their failure to comply with those directions, so the objection of prematurity failed.

p. 3
02

Whether the Covid-19 pandemic excused the delay in prosecuting the appeal

Holding

No - court stations continued operating virtually under practice directions issued by the Chief Justice in 2020, so the pandemic did not justify the delay

Reasoning

While the pandemic interrupted normal operations, courts countrywide continued handling matters virtually pursuant to the Chief Justice's practice directions, and the court itself conducted matters observing the Ministry of Health guidelines. The appellants could therefore have prosecuted their appeal during the pandemic period.

p. 3
03

Whether the appeal should be dismissed for want of prosecution

Holding

Yes - the appellants were indolent, lost interest, and the respondent could not be deprived of the fruits of his judgment

Reasoning

The appellants failed to file the record of appeal for nearly three years after admission of the appeal, were served but did not attend the mention of October 1, 2019, and did not file the record of appeal even after the dismissal application was served. Such inordinate and unexplained indolence warranted dismissal with costs.

p. 3

Legal principles established

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  • A respondent may apply for dismissal of an appeal where the appellant fails to set down the appeal within three months of directions under rule 13, or where the appeal is not set down within one year of service of the memorandum of appeal
  • A court of equity does not aid the indolent but the vigilant; Covid-19 did not excuse non-compliance since courts continued operating virtually

Court orders

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  1. 1.The application dated May 7, 2021 is allowed as prayed
  2. 2.The appeal is dismissed for want of prosecution with costs to the applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 13(4)
  • Civil Procedure RulesOrder 42 rule 35(1)
  • Civil Procedure RulesOrder 42 rule 35(2)
Jurisdiction invoked
Civil Procedure Rules, Order 42 Rules 13, 35(1) and 35(2)

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, "Karirimbi & 3 others v Gachoki (Environment and Land Appeal 6 of 2018) [2022] KEELC 3019 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3019/eng@2022-05-27

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