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ELCDismissedEnvironment and Land Appeal 13 of 2014· [2022] KEELC 13727 (KLR)

Njau v Rukaria & 3 others

Environment and Land Court
19 October 2022
752 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Meru from a ruling delivered on 17 April 2014 by Hon. E.W Wambugu, RM in Meru CMCC No. 393 of 2013. The appeal was lodged on 9 May 2014 and admitted for hearing on 17 July 2017, with a record of appeal filed on 10 November 2017. In April 2018 the court was informed that the appellant had died and granted an order for substitution, with repeated extensions thereafter. Counsel for the appellant repeatedly failed to substitute the deceased or comply with court timelines, including a supplementary record ordered on 31 August 2020 (filed 1 February 2021) and written submissions directed for filing by 28 February 2021. At a mention on 14 April 2021 counsel again sought time to substitute, and despite a notice to show cause issued for 18 July 2022, no cause was shown. The respondents asked that the appeal be dismissed as having abated. Relying on Order 42 Rules 20 and 35 and Order 24 Rule 9 of the Civil Procedure Rules, and applying the overriding objective under Sections 1A, 1B, 3A and 3B of the Civil Procedure Act and Article 159 of the Constitution, Nzili J held that the appeal had abated. The court found it served no useful purpose to keep the file in the records where the appellant was deceased and his advocates had failed to act. The appeal was dismissed with costs to the respondents and the file closed.

Key legal issues

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01

Whether the appeal abated on the death of the appellant and failure to substitute

Holding

The appeal abated and was dismissed with costs to the respondents.

Reasoning

The appellant died, as confirmed by his counsel in 2019. The court repeatedly granted time to substitute the deceased party and issued a notice to show cause, but no compliance was ever made. Order 24 Rule 9 applies to appeals, and Order 42 Rules 20 and 35 empower the court to deal with non-compliance and non-prosecution. Keeping the file in the records serves no useful purpose.

Legal principles established

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  • An appeal abates where a party dies and no substitution is effected despite repeated opportunities and court orders; court orders are not made in vain and respondents are equally entitled to justice.

Court orders

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  1. 1.The appeal is found to have abated and is dismissed with costs to the respondents
  2. 2.File closed

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rules 20 & 35
  • Civil Procedure RulesOrder 24 Rule 9
  • Civil Procedure ActSections 1A, 1B, 3A & 3B
  • Constitution of Kenya 2010Article 159

Cases cited (3)

  • Elizabeth Wanjiru Nsenga & another vs Margaret Wanjiru Kingaru & 2 others
    (2018) eKLR

    Sections 1A, 1B, 3A & 3B of the Civil Procedure Act confer latitude to construe rules to facilitate just, expeditious and proportionate resolution of appeals.

  • Abok James Odera T/A A.J Odera & Associates vs John Patrick Machira T/A Machira & Co advocates
    (2013) eKLR

    Cited with approval for the overriding objective in the exercise of the court's discretion.

  • Issa Masudi Mwabumba vs Alice Kavenya Mutunga & 4 others
    (2012) eKLR

    Objectives of administration of justice aim at attaining justice and fairness, consistent with Article 159 of the Constitution.

On appeal from
Chief Magistrate's Court at Meru
Meru CMCC No. 393 of 2013
Jurisdiction invoked
Order 42 Rules 20 & 35 and Order 24 Rule 9 of the Civil Procedure Rules; Sections 1A, 1B, 3A & 3B of the Civil Procedure Act; Article 159 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, "Njau v Rukaria & 3 others", Case Analysis (2022). Environment and Land Appeal 13 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13727/eng@2022-10-19

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