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ELCDismissedEnvironment and Land Appeal 3 of 2017· [2022] KEELC 12669 (KLR)

Owino v Clara

Environment and Land Court
27 September 2022
MOMAO Odeny
1,518 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to dismiss a stalled land appeal, but gave the appellant 30 days to fix a hearing date or lose it.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (Odeny J) determined a notice of motion dated February 8, 2021 by the respondent, Gregorc Clara, seeking dismissal of the appellant Caroline Adhiambo Owino's appeal (from Kilifi SRMCC No 358 of 2015, dismissed on January 17, 2017) for want of prosecution, with costs. The applicant argued that the appellant had taken no steps since filing the appeal on February 9, 2017 and had failed to comply with orders of October 28, 2020 to file and serve the record of appeal, relying on Order 42 rules 35(1) and (2) of the Civil Procedure Rules and several Mombasa High Court authorities. The appellant countered that she was keen to prosecute the appeal, that her advocate had written letters seeking a hearing date, the latest on February 10, 2022, and relied on the Ivita v Kyumba principles and related authorities. The court set out Order 42 rules 11, 12 and 35, noted from the record that the appeal had been admitted on October 28, 2020 with directions for January 25, 2021, and that the appellant had sought a mention date. Applying Ivita v Kyumba and Fran Investments v G4S, the court held that dismissal without hearing on merit is draconian and that the application lacked merit. It dismissed the motion, ordered costs to abide the outcome of the appeal, and directed the appellant to fix the appeal for hearing within 30 days, failing which the appeal would stand dismissed.

Key legal issues

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01

Whether the appeal should be dismissed for want of prosecution

Holding

The application was dismissed; the appellant had shown steps towards prosecuting the appeal and the delay was not so inexcusable as to warrant dismissal

Reasoning

The court reviewed the record showing the appeal was admitted on October 28, 2020, directions were given for January 25, 2021, and the appellant's advocate wrote on February 10, 2022 seeking a mention date. Applying the Ivita v Kyumba test and Fran Investments, the court held dismissal without hearing on merit is draconian and the application lacked merit, while directing the appellant to fix the appeal for hearing within 30 days.

p. 4

Legal principles established

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  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and, if so, whether it can be excused and justice still be done despite the delay
  • Dismissal for want of prosecution is discretionary and courts should strive to serve substantive justice under Article 159 and the overriding objective

Court orders

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  1. 1.The respondent's notice of motion dated February 8, 2021 seeking dismissal of the appeal for want of prosecution is dismissed
  2. 2.Costs to abide by the outcome of the appeal
  3. 3.The appellant to fast track the hearing of the appeal and fix a date within 30 days, failing which the appeal shall stand dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 35(1)
  • Civil Procedure RulesOrder 42 rule 35(2)
  • Civil Procedure RulesOrder 42 rule 11
  • Civil Procedure RulesOrder 42 rule 12
  • Civil Procedure RulesOrder 17 rule 2(1)
  • Civil Procedure RulesOrder 21 [1]
  • Constitution of KenyaArticle 159
  • Civil Procedure Actsection 79B

Cases cited (9)

  • Hyundai Motors (K) Ltd vs Farways Safaris Center Ltd
    MSA HCCC No 333 of 1997
  • Mr & Mrs Mathias Charo vs Frank Mutua Ngwato
    MSA HCCC No 624 of 1989
  • Salkas Contractors Limited vs Kenya Petroleum Refineries Limited
    MSA Civil Appeal No 250 of 2003
  • Jibo vs Haji Adan Sarbo & Another
    Civil Appeal No 162 of 2000
  • Agnan Wekesa Okumu vs Dima College Limited & 2 Others
    (2015) eKLR

    Principles governing dismissal for want of prosecution

  • Ivita Kyumbu (Ivita vs Kyumba)
    (1984) KLR 441

    Test for dismissal for want of prosecution: prolonged and inexcusable delay, and whether justice can be done despite the delay

  • Naftally Opondo vs National Bank of Kenya Ltd
    (2005) eKLR

    Principles governing dismissal for want of prosecution

  • Mwangi S Kimenyi vs AG
    Civil Misc No 720 of 2009
  • Fran Investments Limited v G4S Security Services Limited
    [2015] eKLR

    Discretionary nature of dismissal for want of prosecution; balance between substantive justice and expeditious disposal under Article 159

On appeal from
Senior Resident Magistrate's Court, Kilifi
Kilifi SRMCC No 358 of 2015
Jurisdiction invoked
Appellate jurisdiction under the Civil Procedure Act and Order 42 of the Civil Procedure Rules (appeal from Kilifi SRMCC No 358 of 2015)

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, "Owino v Clara", Case Analysis (2022). Environment and Land Appeal 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12669/eng@2022-09-27

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