Kigori v Oloo & another (Environment and Land Appeal 4 of 2019) [2024] KEELC 5284 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to kill a stalled land appeal but warned the appellant: file the record within 21 days or lose automatically.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35 and the court's inherent powers
The application failed. No directions had ever been given as the Memorandum of Appeal was never admitted, and the Appellant had taken genuine steps to prosecute the appeal, including pursuing typed proceedings and the misplaced original file; delay attributed to Covid-19 was inexcusable but dismissal before hearing would be draconian.
The court noted Order 42 Rule 35(1) permits dismissal only after directions under Rule 13, which were never given since the appeal was never admitted. While inherent powers permit dismissal absent directions where delay is contumelious, the Appellant had pursued the appeal through letters and mentions, and the Deputy Registrar had been summoned over the missing original file. Justice could be done despite the delay subject to pre-conditions and throw-away costs.
Whether the provisions cited by the Applicants (Section 3A CPA and Order 17 Rule 2) applied
Those provisions apply only to suits, not appeals, but since the Applicants never raised the point the court did not rest its decision on it and determined the application on its own merit.
The court observed, with respect, that Section 3A of the Civil Procedure Act and Order 17 Rule 2 of the Civil Procedure Rules, 2010, strictly speaking apply to suits rather than appeals. Dismissal of appeals is instead governed by Order 42 Rules 20 and 35. However, because the parties had not litigated this point, the judge declined to base the decision on it and considered the merits.
Whether the Covid-19 pandemic excused the Appellant's delay
No. The first Covid-19 case in Kenya was reported in March 2020, months after the orders of February 2019, and e-filing directions by the Chief Justice meant an represented litigant could not blame registry closures.
The court took judicial notice that Covid-19 first hit Kenya in March 2020, almost eight months after the impugned orders, rendering the excuse illogical, misleading and baseless. Furthermore, the Chief Justice had issued directions permitting e-filing during the pandemic, so the Appellant, being represented by an advocate, could not attribute the failure to file the Record of Appeal to closure of the registries.
Costs of the application
Although costs follow the event, the court elected not to award costs of the application, but granted the Respondents throw-away costs of Kshs. 20,000/= with a default clause.
The court affirmed the well-established principle under Section 27(1) of the Civil Procedure Act that costs follow the event and the successful party is typically entitled to costs absent compelling reasons. In the present case, however, balancing the parties' conflicting interests and the need to preserve the suit land, the court exercised its discretion to make no award of costs on the application while granting throw-away costs to secure expedition.
Legal principles established
#- As a general rule, an appeal cannot be dismissed under Order 42 Rule 35(1) unless directions have been given under Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010.
- Notwithstanding the general rule, where there are sufficient reasons the court may invoke its inherent powers and dismiss an appeal for want of prosecution even where directions have not been given.
Court orders
#- 1.The Notice of Motion application dated 10th May, 2022 by the Respondents is found to lack merit and is dismissed with no orders as to costs, subject to fulfilment of the pre-conditions set out.
- 2.The Appellant to file the Record of Appeal within 21 days from the date of the ruling.
- 3.The appeal to be listed for directions under Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010 on 2nd October, 2024 and judgment on the main appeal to be delivered on 9th December, 2024.
- 4.The Respondents/Applicants awarded throw-away costs assessed at Kshs. 20,000/= to be paid within 14 days; in default, the appeal shall automatically stand dismissed.
- 5.No orders as to costs.
- On appeal from
- Chief Magistrate's Court at Mombasa
- CMCC Land Case No. 41 of 2018
- Jurisdiction invoked
- Appeal from the Chief Magistrate's Court; court exercised inherent powers under Sections 1, 1A, 3 & 3A of the Civil Procedure Act, Sections 3 and 13 of the Environment and Land Court Act, Sections 101 of the Land Registration Act No. 3 of 2012 and Section 150 of the Land Act No. 6 of 2012, and Article 159(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kigori v Oloo & another (Environment and Land Appeal 4 of 2019) [2024] KEELC 5284 (KLR)", Case Analysis (2024). Environment and Land Appeal (Mombasa) – arising from CMCC Land Case No. 41 of 2018 (formerly Msa Environment and Land Case No. 14 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5284/eng@2024-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.