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ELCPartially AllowedNot stated in judgment (Notice of Motion dated 22nd October 2024)· [2025] KEELC 136 (KLR)

Villa Greens Limited v Creekview Limited (Environment and Land Appeal E082 of 2022) [2025] KEELC 136 (KLR)

High Court of Kenya
16 January 2025
5,633 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The High Court reinstated an appeal dismissed for want of prosecution, accepting counsel's maternity leave as a valid explanation for the delay.

What this practically means

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Executive summary

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The Applicant, who had appealed against a decision of the business premises rent tribunal, sought reinstatement of her appeal dismissed for want of prosecution on 3rd October 2024, together with leave to file the record of appeal out of time. The Respondent opposed, citing inordinate delay, want of diligence - including fifteen missed opportunities to file the record - and an alleged pattern of filing multiple suits to defeat distress for rent. The court framed three issues: whether the application was filed without inordinate delay; whether sufficient cause was established; and whether an appeal can be dismissed before directions under Order 42 Rule 13. Applying the Supreme Court's principles in County Executive of Kisumu, the court found the roughly twenty-day delay reasonable, noting counsel's maternity leave. On sufficient cause, the court accepted that counsel's maternity leave - protected under the Employment Act 2007 - was a plausible, bona fide and credible explanation, and gave the Applicant the benefit of the doubt. On the third issue, the court rejected the Applicant's contention that dismissal before directions was void, holding that Order 42 Rule 35(2) permits dismissal within one year of service of the memorandum of appeal even absent directions, and that Sections 1A, 1B and 3A of the Civil Procedure Act confer sanctioning and inherent jurisdiction. Notwithstanding that finding, the court allowed the application, vacated the orders of 3rd October 2024, reinstated the appeal, and directed filing of the record within 30 days, failing which the appeal stands dismissed. Costs of KES 30,000 were awarded to the Respondent.

Key legal issues

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01

Whether the application was filed without inordinate delay

Holding

The roughly 20-21 day interval between dismissal and the application was neither unreasonable nor inordinate

Reasoning

The court applied the extension-of-time principles from the County Executive of Kisumu case mutatis mutandis, noting there is no hard and fast rule and the totality of circumstances must be appraised. The application was filed about 20 days after dismissal, and counsel's maternity leave precipitated the events including the dismissal.

p. 6
02

Whether the Applicant demonstrated sufficient cause

Holding

The counsel's maternity leave constituted sufficient, bona fide and credible cause warranting the exercise of discretion

Reasoning

The court accepted that counsel on record had proceeded on maternity leave before filing the record of appeal, a right protected under the Employment Act 2007. Relying on authorities on sufficient cause, it held the explanation plausible, reasonable and cogent, and gave the Applicant the benefit of the doubt.

p. 7
03

Whether an appeal may be dismissed before directions are given

Holding

Yes - Order 42 Rule 35(2) permits dismissal within one year of service of the memorandum of appeal even before directions under Rule 13

Reasoning

The court held Order 42 Rule 35 provides a dual track: dismissal for want of prosecution if no action is taken within three months of directions, or if no steps are taken within one year of service of the memorandum of appeal. Sections 1A, 1B and 3A of the Civil Procedure Act also clothe the court with sanctioning and inherent jurisdiction to dismiss suits or appeals.

p. 9

Legal principles established

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  • An appeal can be dismissed for want of prosecution even prior to the giving of directions under Order 42 Rule 13, by virtue of Order 42 Rule 35(2)
  • Whether a delay is inordinate depends on the length of time, the reasons for the delay and the surrounding circumstances, appraised in their totality
  • Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps

Court orders

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  1. 1.The Application dated the 22nd October 2024 is allowed
  2. 2.The orders of the court issued on the 3rd October 2024 are vacated and set aside
  3. 3.The instant appeal is reinstated and restored for hearing and determination on merits
  4. 4.The Appellant to file and serve the record of appeal within 30 days from the date of the ruling
  5. 5.In default of filing and serving the record of appeal within the stated period, the appeal shall stand dismissed for want of prosecution without further reference to court
  6. 6.Costs of the application awarded to the Respondent, assessed and certified at KES 30,000, payable within 30 days; in default, the Respondent at liberty to execute in the conventional manner

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 13
  • Civil Procedure RulesOrder 42 Rule 35
  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 1A
  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 1B
  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 3A
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159
  • Employment Act, 2007maternity leave provisions

Cases cited (12)

  • Njoroge & Another v Monyo
    [Civil Appeal No. 96 of 2021] [2024] KEHC 3161
  • Simon Wachira Nyanga v Patricia Wamwira
    [2018] eKLR
  • Cicilia Wanja Waweru v Jackson Wainaina Muiruri & Another
    [2014] eKLR
  • Andrew Kiplagat Chamaringo versus Paul Kipkorir Kibet
    [2018] eKLR
  • County Executive of Kisumu v County Government of Kisumu & 8 others
    (Civil Application 3 of 2016) [2017] KESC 16 (KLR) (Civ) (12 April 2017) (Ruling)
  • The Hon. Attorney General v The Law Society of Kenya & Another
    Civil Appeal (Application) No. 133 of 2011 [Unreported]
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • The Registered Trustees of the Archdiocese of Dar es Salaam vs The Chairman Bunju Village Government & Others
  • Njoroge v Kimani
    (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR) (28 October 2022) (Ruling)
  • Pripoint Solution Ltd & Another v Lucy Wauthegeni Wanderi
    [2020] eKLR
  • Narok County Government v Livingstone Kunini Ntutu
    [2018] eKLR
  • Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited
    [2014] eKLR
Jurisdiction invoked
Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Articles 50 and 159 of the Constitution, 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, "Villa Greens Limited v Creekview Limited (Environment and Land Appeal E082 of 2022) [2025] KEELC 136 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 22nd October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/136/eng@2025-01-16

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