Mctough v Bhabhubhai Construction Company Ltd & 2 others (Environment and Land Appeal E085 of 2024) [2025] KEELC 8089 (KLR)
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
#Key legal issues
#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
Yes; the trial court considered the law, facts and decided cases, found the delay inordinate and inexcusable, and the appellate court declined to interfere
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.
On what basis may a first appellate court interfere with the trial court's discretion
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
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.
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.The appeal is dismissed
- 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.