Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedKisumu ELC Appeal No. E013 of 2024 (arising from Kisumu CMC EL CASE NO.44 OF 2019)· [2025] KEELC 8089 (KLR)

Mctough v Bhabhubhai Construction Company Ltd & 2 others (Environment and Land Appeal E085 of 2024) [2025] KEELC 8089 (KLR)

Environment and Land Court
20 November 2025
3,321 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court upheld the dismissal of a land suit that sat idle for about ten years, confirming that courts will not rescue plaintiffs who cannot explain lengthy, unexplained delay.

What this practically means

#

Executive summary

#
The Appellant, who had sued the Respondents over land parcel KISUMU/KOGONY/742 claiming trespass, appealed against the ruling of the Senior Principal Magistrate's Court at Kisumu delivered on 18th March 2022 dismissing his suit for want of prosecution pursuant to a Notice of Motion dated 19th July 2021 brought by the 1st and 3rd Respondents under Order 17 Rules 2(1) and 3 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. The Appellant sought setting aside of the ruling, reinstatement of the suit, and costs. Counsel for the Appellant argued that the delay was excusable, citing settlement negotiations, the court's non-sitting, and the death of the 2nd Respondent requiring substitution, and faulted the trial court for failing to consider the reasons for delay. The 1st and 3rd Respondents maintained that the suit had lain for 10 years without trial, the delay was inordinate and inexcusable, and prejudice to parties and the judicial process was inevitable. The court, hearing the first appeal, framed the single issue as whether the trial Magistrate's discretion was properly exercised. It held that the power under Order 17 Rule 2 is discretionary and must be exercised judiciously on fixed legal principles; that the trial court considered the law, facts and authorities; that the Appellant could not explain the delay, there being no evidence of settlement negotiations, no action for over one year, and no plausible explanation for the three-year substitution delay. Relying on Shah v Mbogo, the court found no basis to interfere, dismissed the appeal and awarded costs to the 1st and 3rd Respondents.

Key legal issues

#
01

Whether the dismissal of the suit for want of prosecution under Order 17 Rule 2(1) and 3 of the Civil Procedure Rules was a proper exercise of discretion

Holding

Yes; the trial court considered the law, facts and decided cases, found the delay inordinate and inexcusable, and the appellate court declined to interfere

Reasoning

The power under Order 17 Rule 2 is discretionary and must be exercised judiciously, guided by fixed legal principles and the facts. The suit had been in court for about 10 years; over one year elapsed with no step taken after the matter was last in court, and the Appellant offered no evidence of settlement negotiations or plausible explanation for the delay in substituting the deceased 2nd Defendant. Justice is for all parties, and the Respondents waited 10 years.

p. 6
02

On what basis may a first appellate court interfere with the trial court's discretion

Holding

Only where the discretion was clearly wrong - where the judge misdirected himself, acted on wrong matters, or failed to consider relevant matters, resulting in injustice

Reasoning

Relying on Shah v Mbogo, the court held that interference is warranted only where the discretion was exercised on wrong principles or clearly wrongly, occasioning injustice. Having found that the trial court considered the law, the facts and decided authorities, and that the Appellant could not explain the delay, the court found no basis to disturb the ruling dismissing the suit.

p. 7

Legal principles established

#
  • An appellate court will not interfere with the exercise of a trial court's discretion unless satisfied that the discretion was exercised on wrong principles or was clearly wrong, resulting in injustice
  • To exercise discretionary power judiciously is to be guided by sound principles of law, the unique facts of the case, and good sense and judgement, not sympathy or caprice

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the 1st and 3rd Respondents
On appeal from
Senior Principal Magistrate's Court at Kisumu
Kisumu CMC EL CASE NO.44 OF 2019
Jurisdiction invoked
First appeal under sections 1A, 1B and 3A of the Civil Procedure Act and Order 17 Rules 2(1) and 3 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mctough v Bhabhubhai Construction Company Ltd & 2 others (Environment and Land Appeal E085 of 2024) [2025] KEELC 8089 (KLR)", Case Analysis (2025). Kisumu ELC Appeal No. E013 of 2024 (arising from Kisumu CMC EL CASE NO.44 OF 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8089/eng@2025-11-20

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