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ELCDismissednot stated in the judgment as provided· [2024] KEELC 3616 (KLR)

Masha v Kenga & 3 others (Civil Appeal 36 of 2022) [2024] KEELC 3616 (KLR)

Environment and Land Court (or subordinate appeal court), Malindi
2 May 2024
EME. K. Makori
446 words in judgment
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The bottom line

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A Kenyan court refused to dismiss a delayed appeal because the missing record was finally complete, and courts prefer hearing cases on their merits.

What this practically means

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Executive summary

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The applicant filed a notice of motion dated 20th July 2023 seeking dismissal of an appeal for want of prosecution, or in the alternative, striking out of the appeal for failure by the appellant to file a record of appeal. The appeal challenged interlocutory orders of the Lower Court while the primary suit remained pending, which the applicant submitted was prejudicial. The appellant/respondent explained that the delay in filing the record of appeal arose from hardships in obtaining the Lower Court file and typed proceedings. Makori J. framed a single issue: whether to strike out the appeal given the incomplete record and inordinate delay in setting it down for directions. Relying on County Government of Narok v British Pharmaceuticals Limited [2021] eKLR (Gikonyo J.), the court held that in exercising discretion to strike out a pleading or record of appeal, the court must weigh the prejudice likely to be suffered by the innocent party against that suffered by the offending party, in line with the overriding objective in sections 1A and 1B of the Civil Procedure Rules and Article 159(2)(d) of the Constitution. Observing that the record of appeal was now complete and that the Court ordinarily seeks to sustain suits rather than strike them out, the judge declined to dismiss the appeal summarily and directed that it be heard on merit. The motion dated 20 July 2023 was dismissed with no order as to costs. Judgment delivered virtually at Malindi on 2nd May 2024.

Key legal issues

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01

Whether the appeal should be dismissed or struck out for want of prosecution and incomplete record

Holding

The application was dismissed; the appeal should be heard on merit since the record is now complete

Reasoning

Applying County Government of Narok v British Pharmaceuticals Limited, the court weighed prejudice on both sides. The respondent's failure to file the record was occasioned by a missing Lower Court file and typed proceedings. With the record now complete, striking out the appeal without a hearing on merit would defeat substantive justice under the overriding objective and Article 159(2)(d).

p. 2

Legal principles established

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  • In exercising discretion to strike out a pleading or record of appeal, the court must weigh the prejudice to the innocent party against the prejudice to the offending party, guided by the overriding objective and Article 159(2)(d)
  • The Court usually aims to sustain a suit rather than strike it out

Court orders

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  1. 1.The application dated 20 July 2023 is hereby dismissed with no order to costs

Authorities

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Legislation

  • Civil Procedure Rulessections 1A and 1B (overriding objective)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (1)

  • County Government of Narok v British Pharmaceuticals Limited
    [2021] eKLR
On appeal from
Lower Court
Jurisdiction invoked
appellate jurisdiction over interlocutory orders of the Lower Court; overriding objective under section 1A and 1B of the Civil Procedure Rules and Article 159(2)(d) 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, "Masha v Kenga & 3 others (Civil Appeal 36 of 2022) [2024] KEELC 3616 (KLR)", Case Analysis (2024). not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3616/eng@2024-05-02

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