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ELRCDismissedNot stated in the judgment· [2021] KEELRC 274 (KLR)

Mayfair Holdings Limited v Enoka Omolo Ojwang [2021] KEELRC 274 (KLR)

Environment and Land Court
2 December 2021
CBChristine N. Baari
1,022 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to dismiss an appeal for delay because the applicant used the wrong legal route, giving appellants more time.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu determines a Notice of Motion dated 11th August 2021 by the Respondent in an appeal, seeking to strike out the Memorandum of Appeal filed on 2nd March 2020 and to dismiss the appeal for want of prosecution, on the ground that the Appellant had taken no steps to set the appeal down for hearing. The application was brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 2 Rule 15(1)(c) and (d) and Order 42 Rules 13 and 35(1) of the Civil Procedure Rules, and was canvassed by written submissions. The Applicant argued that the delay of over a year evidenced loss of interest and misuse of court process. The Appellant countered that the application was premature because directions under Order 42 Rule 13 had not been given, and that under Order 42 Rule 35(2) only the Registrar may list an appeal for dismissal before a Judge in chambers, relying on Rosarie (EPZ) Limited v Stanlex Mbithi James. The court held that Order 42 Rule 35 contemplates two scenarios: dismissal where three months have elapsed after directions without the appeal being set down, and dismissal where one year has elapsed after service of the memorandum of appeal, in which case only the Registrar may list the appeal before a Judge in chambers. Since no directions had been given, the first scenario did not apply; and since the Applicant had not moved the Registrar, the second was not triggered. The application was dismissed as premature and without merit, with costs in the cause, and the Appellant was directed to set the appeal down for directions within 30 days.

Key legal issues

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01

Whether an appeal may be dismissed for want of prosecution under Order 42 Rule 35(1) before directions are given

Holding

No. The first scenario under Order 42 Rule 35(1) applies only where three months have elapsed after directions under rule 13; since no directions had been given, dismissal under that provision was not available.

Reasoning

The court reproduced Order 42 Rule 35 and identified two scenarios for dismissal for want of prosecution. The first requires directions to have been given under rule 13, after which the appellant has three months to set the appeal down. As no directions had been given in this appeal, the provision was not triggered, consistent with Njai Stephen v Christine Khatiala Andika and Kirinyaga General Machinery v Hezekiah Mureithi Ireri.

p. 2
02

Whether the Respondent could directly move the court to dismiss the appeal under Order 42 Rule 35(2)

Holding

No. Under Order 42 Rule 35(2), only the Registrar, on notice to the parties, may list an appeal before a Judge in chambers for dismissal where directions have not been given; the Applicant had not invoked that mechanism.

Reasoning

The court read rule 35(2) as conferring the listing role exclusively on the Registrar prior to directions being given. The Applicant should have applied to the Registrar to list the appeal for dismissal; having failed to do so, its direct application to the court was premature and without legal foundation, notwithstanding reliance on Rosarie (EPZ) Limited v Stanlex Mbithi James.

p. 2

Legal principles established

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  • An appeal cannot be dismissed for want of prosecution under Order 42 Rule 35(1) where directions under Order 42 Rule 13 have not been given
  • Under Order 42 Rule 35(2), only the Registrar may list an appeal for dismissal before a Judge in chambers where directions have not been given

Court orders

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  1. 1.The application dated 11th August, 2021 is dismissed as premature and lacking merit
  2. 2.Costs of the application shall be costs in the cause
  3. 3.The Appellant is directed to set the appeal down for directions within 30 days from the date of the ruling

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure ActSection 79B
  • Civil Procedure RulesOrder 2 Rule 15(1)(c) and (d)
  • Civil Procedure RulesOrder 42 Rule 13
  • Civil Procedure RulesOrder 42 Rule 35(1) and (2)

Cases cited (3)

  • Rosarie (EPZ) Limited v Stanlex Mbithi James
    (2015) eKLR
  • Njai Stephen vs Christine Khatiala Andika
    [2019] eKLR
  • Kirinyaga General Machinery vs Hezekiah Mureithi Ireri
    [2007] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 2 Rule 15(1)(c) and (d) and Order 42 Rules 13 and 35(1) 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, "Mayfair Holdings Limited v Enoka Omolo Ojwang [2021] KEELRC 274 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/274/eng@2021-12-02

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