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ELCDismissedNot stated in judgment (appeal from Homa-Bay CMCC ELC No. E003 of 2020)· [2023] KEELC 461 (KLR)

Ogola & another v Aketch (Environment and Land Appeal E004 of 2021) [2023] KEELC 461 (KLR)

Environment and Land Court
7 February 2023
GOG.M.A Ong'ondo
425 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed an appeal because the appellant ignored repeated court orders to file the appeal record, showing delays carry real consequences.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Homa-Bay (G.M.A Ong'ondo, J) delivered on 7th February 2023 on an application by the respondent's counsel, Quinter Adoyo, seeking dismissal of the appellants' appeal with costs. The appeal, filed on 30th September 2021 by way of a memorandum of appeal dated 24th September 2021, was anchored on eight grounds, principally that the trial magistrate erred in failing to find the suit time-barred and in failing to find that the respondent had breached the contract, prompting termination. The appeal sought allowance of the appeal, quashing or setting aside the judgment of the Homa-Bay Chief Magistrate's Court in Environment and Land Case No. E003 of 2020 delivered on 22nd September 2021, substitution with an order allowing the appellants' defence, and costs. The respondent's counsel submitted that the appellants had not filed a record of appeal and had not complied with the court's orders. The court found that the appellants had neglected to file the record of appeal as directed by orders of 12th February 2022 and 24th October 2022, that the respondent was duly served as evidenced by an affidavit of service sworn on 11th November 2022, and, guided by Article 159(2)(b) of the Constitution ('Justice shall not be delayed') and sections 3 and 19 of the Environment and Land Court Act as well as sections 1A, 1B, 3 and 3A of the Civil Procedure Act, held that the application had merit. The appeal was dismissed with costs to the respondent. The judgment is brief and does not address the merits of the appeal grounds.

Key legal issues

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01

Dismissal of appeal for want of prosecution

Holding

The appeal was dismissed for the appellant's failure to file the record of appeal in compliance with the court's directions, in the interest of securing timely justice

Reasoning

The court noted that orders given on 12th February 2022 and 24th October 2022 directing filing of the record of appeal were not complied with. Guided by Article 159(2)(b) of the Constitution and the overriding objectives under sections 3 and 19 of the Environment and Land Court Act and sections 1A, 1B, 3 and 3A of the Civil Procedure Act, the court found the respondent's dismissal application merited. Service of the hearing was proved by an affidavit of service sworn on 11th November 2022.

p. 2

Legal principles established

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  • Justice shall not be delayed - parties who neglect to prosecute appeals face dismissal under the overriding objectives of the ELC Act and Civil Procedure Act

Court orders

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  1. 1.The appeal be and is hereby dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b)
  • Environment and Land Court ActSections 3 and 19
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 1A, 1B, 3 and 3A

Cases cited (1)

  • Ogada versus Mollin
    (2009) KLR 620
On appeal from
Homa-Bay Chief Magistrate's Court (Environment and Land Case No. E003 of 2020)
E003 of 2020
Jurisdiction invoked
Environment and Land Court Act, 2015, sections 3 and 19; Civil Procedure Act (Cap 21), sections 1A, 1B, 3 and 3A; Article 159(2)(b) of the Constitution of Kenya, 2010

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, "Ogola & another v Aketch (Environment and Land Appeal E004 of 2021) [2023] KEELC 461 (KLR)", Case Analysis (2023). Not stated in judgment (appeal from Homa-Bay CMCC ELC No. E003 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/461/eng@2023-02-07

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