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ELCDismissedMotion on notice dated 6/8/2024 (appeal from PM ELC No. 27 of 2017, Kyuso)· [2025] KEELC 5425 (KLR)

Kithome v Musyoka (Environment and Land Appeal 23 of 2021) [2025] KEELC 5425 (KLR)

Environment and Land Court
17 July 2025
1,848 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The court refused to reinstate an appeal abandoned for over three years, ruling that parties who neglect their own cases lose their chance to be heard.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitui (A. Kaniaru, J) delivered on 17 July 2025 on a motion dated 6 August 2024 by the appellant, Jacob Musembi Kithome, seeking to set aside an order of 26 April 2022 whereby his appeal against an award of Kshs. 108,874/= to the respondent, Mary Mutethya, in PM ELC No. 27 of 2017 (Kyuso) was dismissed for want of prosecution, and to have the appeal reinstated. The application was brought under Order 12 Rule 7, Order 17 and Order 51 Rules 1 and 15 of the Civil Procedure Rules, Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Articles 50 and 159 of the Constitution. The appellant explained that the file was transferred from Machakos to Kitui following the establishment of the local ELC, that he had followed it up without success and that his dismissal without hearing was unjust. The respondent countered that he was indolent, had been served with a notice to show cause and failed to appear. The court found the appellant had waited over three years without following up, preferred the court record on the question of service, held that dismissal without prior directions is lawful where the appellant fails to initiate directions, and held the right to a hearing had been waived through indolence. Relying on China Road & Bridge Corporation v John Kimenye Muteti and Abraham Mukhola Asitsa, the court dismissed the application with costs to the respondent.

Key legal issues

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01

Whether the appellant was diligent in prosecuting his appeal

Holding

The appellant was not diligent; he waited over three years without following up his file

Reasoning

From the appellant's own account, after an April 2021 visit to Machakos where the file was found but unregistered, his next visit was July 2024. The court held that a period of three years is long and he should have returned much earlier. The court record showed the respondent was more active, appearing several times and prompting the notice to show cause.

p. 3
02

Whether service of the notice to show cause was proved despite the appellant's denial

Holding

The court believed the court record over the appellant's denial of service

Reasoning

The record noted the appellant had been served with the notice to show cause. The court weighed the conflicting accounts and preferred the court record, reasoning that the appellant had not been active historically and that the court had no interest in dismissing the matter other than on the facts.

p. 3
03

Whether an appeal can be dismissed where directions have not been taken

Holding

Yes; the requirement that directions precede dismissal is not absolute and can be abused by indolent appellants

Reasoning

The court held the position that dismissal cannot occur before directions are taken is not cast in stone, since an appellant could weaponise it against a respondent seeking expeditious disposal. It endorsed China Road & Bridge Corporation and Asitsa as authorities departing from that strict position.

p. 3
04

Whether dismissal condemned the appellant unheard

Holding

No; the right to a hearing was waived through the appellant's indolence and neglect

Reasoning

The right of hearing is sacrosanct but waivable where a party has had the opportunity to exercise it and has not, through indolence, neglect or dilatoriness, particularly where continued insistence causes injustice to the other side, as the respondent had been attending court while the appellant was nowhere to move his appeal.

p. 4

Legal principles established

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  • It is the appellant's duty to move the court to give directions; an appeal may lawfully be dismissed for want of prosecution even where directions have not been given, particularly where the delay is contumelious
  • The right to a hearing may be waived where a party, through indolence or neglect, fails to exercise the opportunity to be heard and thereby causes injustice to the other side

Court orders

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  1. 1.The application dated 6/8/2024 is found unmeritorious and is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 17
  • Civil Procedure RulesOrder 51 Rules 1 and 15
  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63(e)
  • Constitution of KenyaArticles 50 and 159

Cases cited (6)

  • Wachira Karani v Bildad Wachira
    HCC No. 101 of 2011, Nyeri [2015] KEHC 1850 (KLR)
  • Michael Njoroge & Another v John Ngugi Monyo
    Civil Appeal No. 96 of 2021 [2024] KEHC 3164
  • Chebii Kipkoech v Barnabas Tuitoek Bargoria & Another
    [2019] eKLR
  • DEB Primary School v Catherine Wangui Kariuki
    [2014] eKLR
  • China Road & Bridge Corporation v John Kimenye Muteti
    [2019] eKLR
  • Abraham Mukhola Asitsa v Silver Style Investment Company Ltd
    [2020] eKLR
On appeal from
Principal Magistrate's Court, Kyuso
PM ELC No. 27 of 2017
Jurisdiction invoked
Appellate jurisdiction over appeals from the lower court; motion under Order 12 Rule 7, Order 17, Order 51 Rules 1 and 15 of the Civil Procedure Rules, Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Articles 50 and 159 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, "Kithome v Musyoka (Environment and Land Appeal 23 of 2021) [2025] KEELC 5425 (KLR)", Case Analysis (2025). Motion on notice dated 6/8/2024 (appeal from PM ELC No. 27 of 2017, Kyuso). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5425/eng@2025-07-17

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