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ELCAllowedNot stated in the judgment· [2023] KEELC 765 (KLR)

Kiboi v Waboi & another (Environment and Land Appeal 19 of 2019) [2023] KEELC 765 (KLR)

Environment and Land Court
16 February 2023
JOJ. O. Olola
906 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land appeal dismissed for lack of progress was reinstated because the other side never proved they served a hearing notice.

What this practically means

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Executive summary

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By a notice of motion dated May 18, 2022, John Gitonga Kiboi, the appellant, sought reinstatement of his appeal which had been dismissed for want of prosecution. He argued that he was never served with a hearing notice, that the matter was heard via Microsoft Teams/video link in which he did not participate, and that Covid-19 restrictions prevented him from accessing the court registry, so he learned of the dismissal only recently. He warned that the respondents might forcibly confiscate his land. The 1st respondent, Daniel Mundia Waboi, did not oppose the application, describing the suit land as family land that should be heard on merit. The 2nd respondent, James Gathua Ndiritu, opposed the motion as frivolous, vexatious and an abuse of process, alleging laches, that normal court operations had resumed before the dismissal, that he had always been in occupation of the land, and that the appellant had failed to prosecute the appeal filed in 2019 for over two years. The court applied the principles in John Nahashon Mwangi v Kenya Finance Bank Limited on sparing dismissal of suits, grounded in Articles 50 and 159 of the Constitution. Examining the record, the court noted that on every mention date the 2nd respondent was represented and undertook to serve notice, yet no affidavit of service was on file. Finding no proof of service of the hearing notice, the court allowed the motion, reinstated the appeal for hearing on merit, and ordered costs of the application to be in the appeal.

Key legal issues

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01

Service of hearing notice as a precondition to dismissal for want of prosecution

Holding

There was no service of the hearing notice on the date the appeal was dismissed; the application for reinstatement therefore had merit

Reasoning

The record showed the matter came up on several mention dates when the 2nd respondent was represented and undertook to serve notice on the appellant. Yet no affidavit of service demonstrating service of the hearing notice was on the record. Rather than demonstrate service, the 2nd respondent merely opposed the application as frivolous. In the absence of proof of service, the appellant's right to be heard under Articles 50 and 159 was breached, warranting reinstatement.

p. 2

Legal principles established

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  • Courts should dismiss suits for want of prosecution sparingly, as dismissal is a draconian act, and reinstatement decisions are guided by Articles 50 and 159 of the Constitution
  • Where the record contains no affidavit of service of a hearing notice on the party affected, a dismissal for want of prosecution cannot stand

Court orders

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  1. 1.The motion dated May 18, 2022 is allowed and the appeal filed herein is reinstated for hearing and determination on merit
  2. 2.The costs of the application shall be in the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 50

Cases cited (1)

  • John Nahashon Mwangi vs Kenya Finance Bank Limited (in Liquidation)
    (2015) eKLR
Jurisdiction invoked
Inherent jurisdiction to reinstate an appeal dismissed for want of prosecution, guided by Articles 159 and 50 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, "Kiboi v Waboi & another (Environment and Land Appeal 19 of 2019) [2023] KEELC 765 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/765/eng@2023-02-16

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