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ELCPartially AllowedEnvironment and Land Appeal E001 of 2020· [2022] KEELC 14950 (KLR)

Kilonzo v Kivoto & another

Environment and Land Court
23 November 2022
1,448 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a land appeal delayed for over two years, warning that appeals from preliminary objection rulings need special permission first.

What this practically means

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Executive summary

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The respondents moved the Environment and Land Court at Garissa under a notice of motion dated 20th July 2022 seeking dismissal of the appellant's appeal for want of prosecution. The appeal challenged a ruling by Hon. M. Nasimiyu, Principal Magistrate, delivered on 8th October 2020 in Kyuso ELC No. 13 of 2019, dismissing a preliminary objection that the suit was res judicata on account of Garissa ELC No. 62 of 2017, which had been dismissed for want of prosecution. The appellant, appearing in person, opposed the application, attributing the delay to the death of his previous advocate, Faruq Kyalo, in 2021 and to the Covid-19 pandemic. The court found the explanations unconvincing: no date of the advocate's death or of the appellant's knowledge of it was given, the firm of Garane & Somane Advocates had other advocates, and the courts had introduced virtual hearings from the second half of 2020 so litigation proceeded through 2021. The delay of over 2½ years, during which the lower court suit was left hanging, was held inordinate and inexcusable. The court further observed, on its own motion, that an appeal from a ruling on a preliminary objection lies only with leave under section 75(1) of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, and the record showed no leave was sought or granted, rendering the appeal incompetent and an abuse of process. The application was allowed as prayed under prayer (1), dismissing the appeal, with costs of the application awarded to the respondents.

Key legal issues

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01

Dismissal of appeal for want of prosecution

Holding

The appeal was dismissed for want of prosecution as the delay of over 2½ years was inordinate and inexcusable

Reasoning

The appellant blamed his advocate's death in 2021 and Covid-19, but gave no date of death or knowledge of it; the firm had other advocates who could have taken up the matter. Courts had introduced virtual hearings from the second half of 2020, so the pandemic did not excuse inaction through 2021 and beyond. The lower court suit was left hanging.

p. 2
02

Competency of appeal from a preliminary objection ruling

Holding

The appeal was incompetent because leave to appeal, required under section 75(1) CPA and Order 43 rule (2) and (3) CPR, was never sought or granted

Reasoning

The court examined section 75(1) of the Civil Procedure Act and Order 43 rules (2) and (3) of the Civil Procedure Rules, which restrict appeals as of right to specified orders. A ruling dismissing a preliminary objection is not among them; leave must be sought from the court making the order within 14 days. The record showed no leave was applied for or granted, rendering the appeal incompetent and an abuse of process.

p. 3

Legal principles established

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  • A ruling on a preliminary objection is not appealable as of right; leave of court must first be sought and granted
  • An appeal filed without the requisite leave is incompetent and an abuse of the court process

Court orders

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  1. 1.The respondents' notice of motion dated 20th July, 2022 allowed as prayed under prayer (1), dismissing the appellant's appeal for want of prosecution
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 75(1)
  • Civil Procedure RulesOrder 43 rule (1), (2) and (3)
On appeal from
Principal Magistrate's Court at Kyuso
Kyuso ELC No. 13 of 2019
Jurisdiction invoked
Section 75(1) of the Civil Procedure Act and Order 43 of the Civil Procedure Rules (appellate jurisdiction over subordinate court rulings)

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, "Kilonzo v Kivoto & another", Case Analysis (2022). Environment and Land Appeal E001 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14950/eng@2022-11-23

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