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ELCDismissedEnvironment and Land Appeal E016 of 2021· [2022] KEELC 15133 (KLR)

Mwangi v Leshomo (Environment and Land Appeal E016 of 2021)

Environment and Land Court
1 December 2022
YAY M Angima
1,173 words in judgment
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The bottom line

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The Environment and Land Court refused to dismiss a land appeal for delay because the strict legal conditions for dismissal had not yet been met.

What this practically means

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Executive summary

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The respondent, Komito Leshomo, brought a chamber summons dated March 14, 2022 seeking dismissal of the appellant's appeal (Environment and Land Appeal E016 of 2021) for want of prosecution and return of the lower court file, Maralal SPMCC ELC No 4 of 2019, to Maralal Law Courts for execution of the decree. He contended that since filing the memorandum of appeal on September 10, 2021, the appellant, Sarah Njeri Mwangi, had taken no steps to prosecute the appeal for about six months and had not filed a certified copy of the decree. The appellant's advocate, Charles Gakuhi Chege, replied that the application was incompetent because dismissal under order 42 rule 35 of the Civil Procedure Rules, 2010 lies only three months after directions under rule 13 or one year after service of the memorandum of appeal, and that the record of appeal was being compiled. Angima J framed a single question: whether the respondent had made out a case for dismissal for want of prosecution. Relying on Brenda Nawekulo Uluma v Robert Otieno Matete and Morris Njagi v Mary Wanjiku Kiura, the court held that the appeal had never been admitted and no directions had been given under order 42 rule 13, so rule 35(1) was unavailable; and since the memorandum was filed on September 10, 2021 and the application on April 28, 2022, the one-year period in rule 35(2) had not lapsed. The application was dismissed with costs to the appellant, who was directed to file and serve the record of appeal within 60 days, list the appeal for directions within 30 days thereafter, with mention on February 2, 2023 to confirm compliance.

Key legal issues

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01

Whether the appeal could be dismissed for want of prosecution under order 42 rule 35

Holding

No - neither limb of rule 35 was satisfied: no directions had been given under rule 13, and less than one year had elapsed since service of the memorandum of appeal.

Reasoning

The court perused the record and found the appeal had never been admitted nor directions given under order 42 rule 13, so rule 35(1) could not be invoked. The memorandum of appeal was filed on September 10, 2021 and the application on April 28, 2022, so the one-year period in rule 35(2) had not lapsed. The authorities relied on by the respondent had themselves been rejected on the same grounds.

Legal principles established

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  • A respondent may apply for dismissal of an appeal for want of prosecution under order 42 rule 35(1) only where directions have been given under rule 13; otherwise only rule 35(2) applies, and only after one year from service of the memorandum of appeal.

Court orders

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  1. 1.The chamber summons dated March 14, 2022 is dismissed with costs to the appellant.
  2. 2.The appellant shall file and serve her record of appeal within 60 days from the date of the ruling and list the appeal for directions within 30 days from the date of filing the record.
  3. 3.Mention on February 2, 2023 to confirm the appellant's compliance.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Civil Procedure Rules, 2010Order 42 rule 35
  • Civil Procedure Rules, 2010Order 42 rule 13

Cases cited (3)

  • John Njagi Karua v Njiru Gatumu
    [2021] eKLR

    Cited by the respondent in support of dismissal for want of prosecution; in that case the application was rejected for failure to satisfy order 42 rule 35 conditions.

  • Brenda Nawekulo Uluma v Robert Otieno Matete
    [2020] eKLR

    Held that a party can only apply for dismissal where directions have been given; otherwise only order 42 rule 35(2) applies.

  • Morris Njagi & Another v Mary Wanjiku Kiura
    [2017] eKLR

    Quoted in Brenda Nawekulo Uluma: dismissal under order 42 rule 35(1) requires directions to have been given.

On appeal from
Magistrates' Court at Maralal
Maralal SPMCC ELC No 4 of 2019
Jurisdiction invoked
Order 42 of the Civil Procedure Rules, 2010; Article 159(2) of the Constitution of Kenya 2010 (invoked in the application)

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, "Mwangi v Leshomo (Environment and Land Appeal E016 of 2021)", Case Analysis (2022). Environment and Land Appeal E016 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15133/eng@2022-12-01

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