FESTUS RIUNGU M’ARITHI v JULIUS MWIRIGI M’ARITHI
The bottom line
#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
#Executive summary
#Key legal issues
#Dismissal of appeal for want of prosecution under Order 42 Rule 35 before directions under Rule 13
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.
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.
Effect of unexplained delay by an appellant
Delay of over a year with no explanation from the appellant justified dismissal.
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.
Legal principles established
#- 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
#- 1.The respondent's application to dismiss the appeal for non-prosecution is allowed
- 2.The appeal dated April 15, 2021 is dismissed for non-prosecution with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.