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ELCAllowedNot stated in judgment· [2022] KEELC 3865 (KLR)

FESTUS RIUNGU M’ARITHI v JULIUS MWIRIGI M’ARITHI

Environment and Land Court
25 July 2022
753 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed an appeal that had sat idle for over a year, warning appellants cannot hide behind missing court directions to justify inaction.

What this practically means

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Executive summary

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The Environment and Land Court, per C.K. Nzili (ELC Judge), delivered a short ruling on July 25, 2022 dismissing an appeal for want of prosecution. The appeal had been filed on April 15, 2021 with a certificate of urgency seeking stay; the court granted conditional stay requiring a deposit of Kshs.200,000 within 30 days, but the appellant took no further action. An interpartes hearing set for July 8, 2021 was deferred for a possible consent, and by a ruling dated December 20, 2021 the stay application was dismissed with costs. The respondent then applied under Order 42 Rule 35(1) & (2) of the Civil Procedure Rules to dismiss the appeal for non-prosecution. The court reviewed the jurisprudence: Ivita v Kyumbu on prolonged and inexcusable delay causing injustice; Abraham Mukhola Asista and Pinpoint Solutions on the requirement of directions before dismissal; Protein & Fruits Processors; China Road & Bridge Corporation on the appellant's duty to trigger directions; and Peter Kipkurui Chemoiwo of the Court of Appeal. Holding that although the appeal had not been admitted or taken through Rule 13 directions, over a year had lapsed with no explanation or action by the appellant, the court found the application merited and dismissed the appeal dated April 15, 2021 for non-prosecution, with costs to the respondent. The court emphasised that no party may file an appeal, go to sleep, and rely on the absence of directions to keep idle litigation alive.

Key legal issues

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01

Dismissal of appeal for want of prosecution under Order 42 Rule 35 before directions under Rule 13

Holding

Although the appeal had not been admitted for hearing or taken through Rule 13 directions, the one-year period under Order 42 Rule 35(2) had lapsed and the appeal was properly dismissed.

Reasoning

Order 42 Rule 35 speaks of three months after Rule 13 directions and one year after service of the memorandum of appeal. Here no directions had been given, but over a year had elapsed since filing. Authorities, including Pinpoint Solutions, require directions before dismissal, yet the court held that a party cannot sleep on an appeal and rely on that requirement. The delay was unexplained, so dismissal served the overriding objective of weeding out idle litigation.

p. 2
02

Effect of unexplained delay by an appellant

Holding

Delay of over a year with no explanation from the appellant justified dismissal.

Reasoning

The respondent was served and offered no explanation for the delay (the judgment states the respondent did not respond). Applying Ivita v Kyumbu and Peter Kipkurui Chemoiwo, the court found the delay prolonged and inexcusable, and found no reason to make the respondent wait or clog the justice system.

p. 2

Legal principles established

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  • The test for dismissing an appeal for want of prosecution is whether the delay is prolonged and inexcusable so as to lead to injustice to the opposite party.
  • A party cannot file an appeal, take no action and leave it parked at the registry, expecting the requirement of directions to shield it from dismissal.
  • The responsibility to trigger the giving of directions rests with the appellant, and the court retains inherent powers to dismiss an idle appeal notwithstanding the absence of directions.

Court orders

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  1. 1.The respondent's application to dismiss the appeal for non-prosecution is allowed
  2. 2.The appeal dated April 15, 2021 is dismissed for non-prosecution with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 35(1) & (2)
  • Civil Procedure RulesOrder 42 Rule 13
  • Civil Procedure ActSection 79
  • Civil Procedure ActSection 3A
  • Environment and Land Court Practice RulesNot specified
  • Constitution of KenyaArticle 159(2)(b)

Cases cited (6)

  • Ivita v Kyumbu
    (1984) KLR 441
  • Abraham Mukhola Asista v Silber Style investment co. ltd
    (2020) eKLR
  • Pinpoint Solutions Ltd & another v Lucy Waithegeni Wanderi
    (2020) eKLR
  • Protein & Fruits Processors Ltd & another v Trust Bank (K) Ltd
    (2015) eKLR
  • China Road & Bridge Corporation v John Kimenye Muteti
    (2019) eKLR
  • Peter Kipkurui Chemoiwo v Richard Chepsergon
    (2021) eKLR
Jurisdiction invoked
Order 42 Rule 35 Civil Procedure Rules, read with Section 3A and Section 79 of the Civil Procedure Act, the Environment and Land Court Practice Rules and Article 159(2)(b) 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, "FESTUS RIUNGU M’ARITHI v JULIUS MWIRIGI M’ARITHI", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3865/eng@2022-07-25

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