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ELCPartially Allowed· [2025] KEELC 6727 (KLR)

Kimani & 2 others v London Distillers (K) Ltd & another (Environment and Land Appeal E001 of 2020) [2025] KEELC 6727 (KLR)

Environment and Land Court of Kenya
7 October 2025
1,237 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by the Environment and Land Court at Machakos (A. Y. Koross, J) determines a notice of motion dated 16/08/2023 by the 1st respondent seeking to strike out an appeal for want of prosecution under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 42 Rules 13(1) and 35 of the Civil Procedure Rules. The appeal, filed on 15/09/2020 against a tribunal decision of 7/09/2020, was timeous, but the appellants never served the memorandum of appeal, failed to attend five mention dates for directions, and never sought typed proceedings. The motion was unopposed and canvassed by written submissions of Ms. Tiego & Co. Advocates. The court framed a single issue: whether the appeal warranted being struck out. It reviewed the jurisprudence (Pinpoint Solutions, Njoroge v Monyo, Kirinyaga General Machinery) holding that an appeal cannot be dismissed before directions are issued under Order 42. It then confronted the situation of an appellant who has wholly abandoned an appeal, holding 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 expeditiously. Concluding the appellants had completely lost interest and were sleeping on their right of appeal, the court struck out the appeal with costs to the 1st respondent and marked the file closed. It declined to determine the alleged advocate conflict of interest and the omission of NEMA, being unable to verify those matters absent the tribunal's pleadings.

Key legal issues

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01

Whether an appeal that has not been set down for directions can be struck out or dismissed for want of prosecution

Holding

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

Reasoning

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.

p. 3
02

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

Holding

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

Reasoning

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.

p. 3
03

Whether the alleged conflict of interest of the appellants' advocates and the omission of NEMA as a party could be determined on the motion

Holding

The court declined to determine these issues, being unable to verify them without the tribunal's pleadings

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The appeal is struck out
  2. 2.Costs of the motion and the appeal awarded to the 1st respondent
  3. 3.The file is effectively marked as closed

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B (incl. 1B(d)) & 3A
  • Civil Procedure RulesOrder 42 Rules 11, 12, 13(1) & 35
  • Environment and Land Court ActSection 3(1)
  • Constitution of Kenya, 2010Article 159(2)(b)

Cases cited (3)

  • Pinpoint Solutions Limited & another v Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi)
    [2020] KEHC 10233 (KLR)
  • Njoroge & another v Monyo
    [2024] KEHC 3164 (KLR)
  • Kirinyaga General Machinery V Hezekiel Muriithi Ireri
    [2007] Kehc 2348 (Klr)
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

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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, "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.