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ELCDismissedEnvironment and Land Appeal 11 of 2016· [2023] KEELC 18993 (KLR)

Mbogo v Mwaighacho

Environment and Land Court
26 July 2023
1,147 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reinstate a land appeal dismissed for want of prosecution, holding that over a year of unexplained delay amounts to laches.

What this practically means

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Executive summary

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This ruling by N.A. Matheka, J of the Environment and Land Court at Mombasa determined a notice of motion dated April 20, 2023 brought by Thomas Mwawasi Mbogo under Order 42 rule 6, Order 9 rules 9 and 10, Order 51 rule 1 of the Civil Procedure Rules, 2010 and sections 1A, 1B and 34 of the Civil Procedure Act. The applicant sought a stay of execution pending appeal, setting aside of the court's orders of 8 March 2022 dismissing his appeal for want of prosecution, reinstatement of the appeal, and leave for the firm of Mjomba Mwawasi & Company Advocates to come on record. He attributed the dismissal to his former advocates, who he said falsely assured him the appeal was progressing, and argued the application was filed without delay once he learned of the dismissal in early March 2023. The court applied the tests in Mwangi S. Kimenyi v Attorney General and Ivita v Kyumbu on inordinate and inexcusable delay. Perusing the record, the judge found the appeal was dismissed on 8 March 2022 for non-attendance, was last in court on 20 April 2017, and the application was only filed in May 2023 - over a year after dismissal. The applicant was held guilty of laches, his explanations were found inexcusable, and the application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the delay in seeking reinstatement was excusable

Holding

The delay of over one year was inordinate and inexcusable; blame attributed to former advocates did not excuse the applicant

Reasoning

The court applied the Ivita v Kyumbu and Mwangi S. Kimenyi tests on delay. The record showed the appeal was dismissed on 8 March 2022 for non-attendance, yet the application was only filed in May 2023. The applicant's claim that his advocates lied to him did not render the delay excusable, and he was guilty of laches.

02

Whether reinstatement and stay should be granted

Holding

The application was unmerited and was dismissed

Reasoning

Having found the delay prolonged and inexcusable and no satisfactory explanation offered, the court exercised its discretion against the applicant. Substantive justice did not warrant reinstatement of an appeal dormant since 2017 and dismissed in 2022.

Legal principles established

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  • Prolonged and inexcusable delay may justify dismissal, but the court's overriding concern is whether substantive justice can still be served
  • A litigant who sleeps on his rights for over a year after dismissal is guilty of laches and cannot obtain reinstatement

Court orders

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  1. 1.The application dated April 20, 2023 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6
  • Civil Procedure Rules, 2010Order 9 rules 9 and 10
  • Civil Procedure Rules, 2010Order 51 rule 1
  • Civil Procedure ActSections 1A, 1B and 34

Cases cited (2)

  • Mwangi S. Kimenyi vs Attorney General and another
    Civil Suit Misc. No. 720 of 2009

    Test for excusable delay: whether delay was intentional, contumelious, an abuse of court, inordinate, prejudicial to fair trial, and prejudice from dismissal

  • Ivita vs Kyumbu
    (1984) KLR 441

    The test is whether the delay is prolonged and inexcusable and, if so, whether justice can still be done despite the delay

On appeal from
Subordinate Court
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts; application under Order 42 rule 6, Order 9 rules 9 and 10, Order 51 rule 1 of the Civil Procedure Rules, 2010 and sections 1A, 1B and 3A/34 of the Civil Procedure Act (Cap 21)

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, "Mbogo v Mwaighacho", Case Analysis (2023). Environment and Land Appeal 11 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18993/eng@2023-07-26

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