Kimani & 2 others v London Distillers (K) Ltd & another (Environment and Land Appeal E001 of 2020) [2025] KEELC 6727 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an appeal the appellants filed but never pursued, warning that you cannot file an appeal and then go to sleep.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal that has not been set down for directions can be struck out or dismissed for want of prosecution
Ordinarily no - jurisprudence holds an appeal cannot be dismissed before directions are issued under Order 42; however, where the appellant has completely abandoned the appeal, the court's overriding-objective mandate permits striking it out
The court acknowledged the consistent line of authority (Pinpoint Solutions; Njoroge v Monyo; Kirinyaga General Machinery) that dismissal is premature before directions. It then reasoned that Articles 159(2)(b) of the Constitution, Sections 1A and 1B(d) of the Civil Procedure Act and Section 3(1) of the Environment and Land Court Act require the court's business to be conducted efficiently and without delay. Appellants who file an appeal and then sleep on their rights lose it; the appeal was struck out.
Whether the appellants' inaction (failure to serve the memorandum of appeal, attend mentions or seek typed proceedings) amounted to loss of interest in the appeal
Yes - the appellants filed the memorandum of appeal on 15/09/2020 but never served it, never attended any of the five mention dates and never requested typed proceedings, demonstrating complete loss of interest
The court found the memorandum of appeal was filed timeously, but there was no return of service on the respondents, the appellants failed to attend several court-issued mention notices for directions and admission of the appeal, and no letter requesting typed proceedings was served. Having filed the appeal, the appellants were bound to be proactive; their failure was a breach of the law and evidence of total abandonment.
Whether the alleged conflict of interest of the appellants' advocates and the omission of NEMA as a party could be determined on the motion
The court declined to determine these issues, being unable to verify them without the tribunal's pleadings
The 1st respondent contended the memorandum of appeal was incompetent for omitting NEMA, a party before the tribunal, and that the appellants' advocates were conflicted for having acted for the 2nd respondent before the tribunal. The court held these matters could not be verified in the absence of the pleadings that were before the tribunal, and so declined the request, deciding the motion solely on want of prosecution grounds.
Legal principles established
#- An appeal cannot be dismissed for want of prosecution before directions have been issued under Order 42 of the Civil Procedure Rules
- Where an appellant has totally lost interest and fails to attend court for directions or serve the memorandum of appeal, the court may strike out the appeal in line with the overriding objective
Court orders
#- 1.The appeal is struck out
- 2.Costs of the motion and the appeal awarded to the 1st respondent
- 3.The file is effectively marked as closed
- On appeal from
- National Environment Tribunal (referred to as 'the tribunal')
- Jurisdiction invoked
- Appellate jurisdiction over the tribunal's decision under the enabling statute; motion brought under Sections 1A, 1B & 3A of the Civil Procedure Act and Orders 42 Rules 13(1) & 35 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani & 2 others v London Distillers (K) Ltd & another (Environment and Land Appeal E001 of 2020) [2025] KEELC 6727 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6727/eng@2025-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.