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ELCOtherAppeal dated 24/11/2022 (from Nyahururu CM ELC No. E 016 of 2021)· [2025] KEELC 4227 (KLR)

Macharai & another v Muruithia (Environment & Land Case 56 of 2023) [2025] KEELC 4227 (KLR)

Environment and Land Court

28 May 2025

MKMugo Kamau

1,449 words in judgment

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The bottom line

A Kenyan land appeal survived dismissal after a two-year delay, but only because the judge imposed strict new deadlines.

What this practically means

Executive summary

This is a ruling of the Environment and Land Court at Nyandarua (Mugo Kamau, J) on the Respondent's Notice of Motion dated 13/11/2024 seeking dismissal of the Appellants' appeal for want of prosecution under Order 42 Rule 35(2) of the Civil Procedure Rules. The appeal, filed on 24/11/2022, challenges a ruling of Hon. Susan Mwangi, SRM, delivered on 10/1/2022 in Nyahururu CM ELC No. E 016 of 2021, which struck out the Appellants' defence and entered judgment for the Respondent in a land dispute the Appellants said involved a trust or beneficial ownership claim. The Respondent deponed that the appeal had been pending for 719 days without directions, a record of appeal or listing, describing the inaction as a deliberate strategy to stall proceedings and an abuse of process. The Appellants' advocate attributed the delay to non-supply of certified proceedings and judgment applied for on 23/3/2023, and to an unnotified transfer of the file from Nyahururu to Nyandarua. The court held that the delay was inexcusable, that equity aids the vigilant and not the indolent, and that counsel could not hide behind court administration, given publicised court transfers and the real-time tracking available on the e-Judiciary portal. However, because dismissal for want of prosecution is a draconian and final order, the court reluctantly declined to dismiss the appeal and instead directed that the Record of Appeal be filed and served within 15 days and the appeal prosecuted within 60 days thereafter, awarding the Respondent the costs of the application.

Key legal issues

Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35(2)

Holding

The delay of 719 days was inexcusable and attributable to the Appellants and their advocate, but dismissal being a draconian final order, the court exercised its discretion to spare the appeal on strict timelines

Reasoning

The court agreed with the Respondent that the delay was not mere oversight and that counsel could not hide behind court administration, since the transfer of the ELC from Nyahururu to Ol-Kalou was publicised and the e-Judiciary portal gives real-time access to case progress. Nevertheless, because dismissal for want of prosecution is a draconian, final and punitive order, the court reluctantly declined to dismiss the appeal and instead imposed 15 days to file the Record of Appeal and 60 days to prosecute it.

p. 3

Legal principles established

A litigant cannot excuse inordinate delay in prosecuting an appeal by attributing it to court administration, especially where the e-filing portal provides real-time case tracking; equity aids the vigilant, not the indolent.
Dismissal for want of prosecution is a discretionary, draconian and final remedy which a court may decline even where delay is inexcusable.

Court orders

1.The Appellants' application for dismissal of the appeal for want of prosecution is refused; the appeal is spared dismissal
2.The Record of Appeal to be filed and served within 15 days from the date of the ruling
3.The appeal to be prosecuted within 60 days thereafter
4.The Respondent to have the costs of the Application

Authorities

Legislation

Civil Procedure RulesOrder 42 Rule 35(2)

On appeal from: Senior Resident Magistrate's Court, Nyahururu; Nyahururu C.M ELC No. E 016 of 2021
Jurisdiction invoked: Appellate jurisdiction of the ELC over appeals from the magistrates' courts; application brought under Order 42 Rule 35(2) of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Macharai & another v Muruithia (Environment & Land Case 56 of 2023) [2025] KEELC 4227 (KLR)", Case Analysis (2025). Appeal dated 24/11/2022 (from Nyahururu CM ELC No. E 016 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4227/eng@2025-05-28

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