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ELCDismissedNot stated in the judgment· [2025] KEELC 799 (KLR)

Kabare Farmers Co-operative Society Limited v Muriithi (Environment and Land Appeal E033 of 2022) [2025] KEELC 799 (KLR)

Environment and Land Court
26 February 2025
JMJ. M. Mutungi
1,159 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Respondent, Nancy Njoki Muriithi, moved the Environment and Land Court at Kerugoya by an application dated 4th July 2024 seeking dismissal of the Appellant's appeal for want of prosecution and costs. The appeal was against a judgment of the Chief Magistrate's Court delivered on 15th November 2022 concerning land, with a Memorandum of Appeal filed on 1st December 2022. The Respondent contended the Appellant had done nothing to list the appeal for directions, leaving her unable to freely utilise her parcel of land. The Appellant, through Counsel Ms. Wangui Mugoro, explained that efforts to prosecute the appeal were hampered by the non-availability of typed proceedings and the Lower Court file, exhibiting correspondence to the registry. In a Supplementary Affidavit the Respondent noted she obtained certified judgment and proceedings in early 2023 upon applying, and disputed the Appellant's diligence. The court examined the record and found a skeleton file devoid of the original Lower Court record, proceedings, handwritten notes or exhibits, even though the Chief Magistrate's Court had by letter of 11th July 2023 indicated the original record and certified copies had been forwarded. Finding no explanation for the missing original record, the court held the Appellant's averments credible and declined to hold the Appellant wholly responsible for the delay. Exercising its discretion in the interest of fairness and justice, the court declined to dismiss the appeal, directed that it be mentioned for directions on hearing on 14th April 2025, and ordered that the costs of the application abide the outcome of the appeal.

Key legal issues

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01

Whether the Appeal should be dismissed for want of prosecution on account of inordinate and unexplained delay

Holding

The application was declined. The court found the Appellant's explanation credible because the original Lower Court record was never placed on the Appeal file despite the ELC Deputy Registrar's request, and the Appellant had filed a Record of Appeal on 15th October 2024.

Reasoning

The court examined the record and found a skeleton file lacking proceedings, handwritten notes or exhibits, despite a letter from the Chief Magistrate's Court dated 11th July 2023 stating that the original record plus certified copies had been forwarded. Since there was no explanation why the original record was absent, the Appellant's averments were credible and the delay could not be laid wholly at the Appellant's door. The court exercised its discretion in favour of hearing the appeal on its merits.

p. 3

Legal principles established

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  • A court will not dismiss an appeal for want of prosecution where the delay is attributable to circumstances beyond the appellant's control, such as non-transmission of the lower court record; the discretion will favour hearing the appeal on its merits in the interest of fairness and justice.

Court orders

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  1. 1.The application dated 4th July 2024 seeking dismissal of the Appeal for want of prosecution is declined; the Appeal is to proceed to hearing on its merits
  2. 2.The appeal to be mentioned for directions on hearing on 14th April 2025
  3. 3.Costs of the application to abide the outcome of the Appeal
On appeal from
Chief Magistrate's Court
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over an appeal from the Chief Magistrate's Court (provision not stated in the judgment)

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, "Kabare Farmers Co-operative Society Limited v Muriithi (Environment and Land Appeal E033 of 2022) [2025] KEELC 799 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/799/eng@2025-02-26

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