Njuguna v Wanyoike (Environment and Land Appeal E051 of 2024)

that the Appellant's conduct amounts to an abuse of the process of the Court and is contrary to the overriding objective of the Civil Procedure Act, which requires the expeditious, fair and ecient disposal of proceedings. 5. The Application is opposed by the Appellant through a Replying Adavit sworn by John Ng’ang’a Njuguna on 28th November 2025. The Appellant attributes the delay principally to his ill health. He avers that during the material period, he suered from a medical condition which substantially impaired his mobility and ability to attend Court physically, and that he was, on several occasions, admitted and treated at Kenyatta National Hospital. 6. The Appellant further explains that, owing to his illness, he was unable to give his advocates timely and adequate instructions necessary for the eective prosecution and management of the Appeal. He states that during the period of his hospitalisation, he entrusted a close condant with the responsibility of forwarding funds to his advocates to enable them to continue handling the matter. His case is that, unbeknownst to him, the condant failed to transmit the funds to the advocates, thereby contributing to the delay in the prosecution of the Appeal. 7. Lastly, the Appellant avers that his advocates were unable to get typed Court proceedings on time for purposes of ling the record of Appeal. The Applicant’s submissions 8. In his submissions dated 16th February 2026, the Applicant relied on Order 42 Rule 35 of the Civil Procedure Rules and the decision in Peter Kipkurui Chemoiwo v Richard Chepsergon [2021] KECA 979 (KLR), among other authorities. The Applicant submitted that the Appellant had failed, on several occasions, to take the necessary steps to have the Appeal set down for hearing in accordance with the directions of the Court. 9. The Applicant submitted that the delay was prolonged and inexcusable and therefore, warranted dismissal of the Appeal for want of prosecution. He further challenged the explanation advanced by the Appellant on account of illness and the alleged failure by his condant to transmit funds to his advocates. In particular, it was submitted that no medical records had been produced to substantiate the alleged illness or hospitalisation and that there was similarly, no evidence demonstrating that the Appellant had provided funds to the alleged condant for onward transmission to his advocates. 10. Counsel further submitted that the Appellant had previously advanced similar reasons before the Court and had been excused. It was therefore argued that the Court ought not to continue excusing the Appellant's failure to comply with its orders. Reliance was placed on the principle that a court order is binding and must be obeyed unless and until it is set aside or varied by a competent court. 11. The Applicant also invoked sections 107 and 109 of the Evidence Act, submitting that the burden lay upon the Appellant to prove the facts upon which he relied in seeking to explain the delay. It was argued that the mere averments contained in the Replying Adavit, without supporting documentary evidence relating to the alleged illness, hospitalisation or communication with the condant, were insucient to discharge that burden. 12. On the question of costs, the Applicant submitted that costs follow the event and relied on section 27(1) of the Civil Procedure Act. The Applicant consequently urged the Court to allow the Chamber Summons and dismiss the Appeal for want of prosecution, with costs to the Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5789/eng@2026-09-24 2

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The Appellant’s submissions 13. On the other hand, the Appellant opposed the Application and submitted that it was premature and did not meet the threshold for the dismissal of an Appeal for want of prosecution. His position was that the delay was satisfactorily explained and was neither deliberate nor indicative of an intention to abandon the Appeal. 14. The Appellant reiterated that his failure to prosecute the Appeal within the prescribed timelines arose from serious medical challenges which substantially impaired his ability to attend to his aairs. He maintained that the illness aected not only his physical ability to attend Court but also his ability to give instructions to his advocates and to actively follow up the prosecution of the Appeal. 15. It was further submitted that, owing to his condition, the Appellant entrusted his aairs to a close condant who was expected to safeguard his interests and facilitate communication with his advocates. According to the Appellant, the condant failed to discharge that responsibility. The Appellant therefore contended that the resulting delay was occasioned by circumstances beyond his control. 16. The Appellant submitted that the Court ought to distinguish between deliberate indolence and incapacity and urged that his circumstances fell within the latter category. He further maintained that, upon recovery and stabilization of his health, he had taken steps towards regularizing his position and was ready and willing to comply with any directions issued by the Court for the expeditious prosecution of the Appeal. 17. In support of his position, the Appellant relied on Ivita v Kyumbu (1984) eKLR, submitting that the applicable test is whether the delay is inordinate and inexcusable and if so, whether justice can nevertheless be done despite the delay. It was argued that dismissal is not automatic merely because delay has occurred and that the Court must consider the explanation oered and whether the interests of justice would be served by sustaining the proceedings. 18. The Appellant further relied on Articles 48, 50 and 159(2)(d) of the Constitution, submitting that the right to access justice and a fair hearing militated against terminating the Appeal where a plausible explanation for the delay had been advanced. 19. As regards prejudice, the Appellant submitted that although the Applicant had complained of delay in enjoying the fruits of the judgment, no specic or irreparable prejudice had been demonstrated. In his view, the Applicant had not shown that the delay had resulted in the loss of evidence, unavailability of witnesses, or any other circumstance that would make a fair hearing of the Appeal impossible. 20. The Appellant also relied on Jumbo North (EA) Ltd v Obonyo (Civil Appeal E18 of 2020) [2023] KEHC 24852 (KLR), for the proposition that although parties and advocates are expected to prosecute appeals diligently, dismissal is a drastic remedy which should be resorted to only in clear cases of prolonged, unexplained and inexcusable delay. The Appellant urged the Court, in the circumstances of this case, to preserve the Appeal and issue appropriate timelines for its expeditious prosecution instead. 21. The Appellant consequently urged the Court to nd that the delay had been suciently explained, to decline the Application for dismissal and to issue appropriate case-management directions to facilitate the expeditious hearing and determination of the Appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5789/eng@2026-09-24 3

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Analysis and determination 22. I have considered the Application, the Replying Adavit in opposition thereto, the parties’ respective submissions and the record of the Court. The issue that falls for determination is whether, in the circumstances of this case, the Appeal ought to be dismissed for want of prosecution. 23. The chronology of the matter is important. The Ruling from which the present Appeal arises was delivered by the subordinate Court on 2nd November 2023 in MCELC No. E119 of 2023. The Appellant did not lodge his Appeal within the prescribed period and that the last day for ling the Memorandum of Appeal was 2nd December 2023. This is the beginning of the Appellant’s record of non-compliance with procedural requirements and directions. 24. The Appellant subsequently, moved this Court by an Application dated 18th January 2024 seeking leave to le the Appeal out of time. The Application was determined on 29th May 2024, when the Court granted the Appellant leave to appeal out of time, subject to specic conditions being: i. The Court directed that the Memorandum of Appeal be led within seven days; ii. The Record of Appeal be led within twenty-one days; and iii. That the Appeal be listed for hearing within forty-ve days from the date of the Ruling. 25. The explanation advanced by the Appellant in that earlier Application is material to the present Application because in seeking leave to le the Appeal out of time, the Appellant attributed the delay to illness, lack of nances to facilitate the ling of the Appeal and the grief and sorrow which he stated had followed the decision of the subordinate Court and which had taken him time to come to terms with. 26. The Memorandum of Appeal was subsequently led on 4th June 2024, which was within the seven days granted by the Court. The Record of Appeal, however, was led on 17th August 2024, approximately eighty-one days after the Ruling of 29th May 2024 and therefore, outside the twenty-one-day period prescribed by the Court. A Supplementary Record of Appeal was thereafter led on 5th September 2024 without leave of the Court. 27. The subsequent conduct of the Appellant is also noted. The record indicates that even after the ling of the Memorandum and Record of Appeal, the Appellant did not take the necessary steps to progress the Appeal to hearing. Indeed the record shows that as at 5th July 2025, the Applicant had not been served with the Record of Appeal and the Appellant had not availed a physical copy of the Record to the Court despite being required to do so. 28. The Appeal further came up before the Court on several occasions for Mention including on 28th July 2025, 22nd September 2025 and 30th October 2025, when the Appellant or his advocate failed to attend Court. The record also demonstrates that the Court had on several occasions called upon the Appellant to avail a physical copy of the Record of Appeal, but this was not done. 29. The applicable law in the determination of an Application of this nature is set down in Order 42 Rule 35 of the Civil Procedure Rules, which provides for dismissal of an appeal for want of prosecution. The Rule provides: “ 35(1) Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5789/eng@2026-09-24 4

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(2) If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.” 30. The power to dismiss an appeal for want of prosecution is discretionary. In exercising that discretion, the Court is required to consider the circumstances of each case, including the length of the delay, the explanation oered for the delay, whether the delay is inordinate and inexcusable, and whether justice can nevertheless be done notwithstanding the delay. 31. In Ivita v Kyumbu [1984] KLR 441, Chesoni J. stated the applicable test in the following terms: “ The court must consider whether the delay is prolonged and inexcusable and, if it is, whether justice can still be done to the parties despite the delay.” 32. The same principle has been applied in subsequent decisions concerning dismissal of proceedings for want of prosecution. In Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another [2014] eKLR, the Court observed that: The Court must balance the interests of the party seeking to have the matter determined on its merits with those of the opposing party who is entitled to have litigation brought to an end within a reasonable time. 33. Likewise, in Agip (Kenya) Limited v Highlands Tyres Limited [2001] KLR 630, the Court of Appeal underscored the importance of procedural discipline and observed that prolonged inactivity may, in an appropriate case, justify dismissal where no satisfactory explanation has been oered. 34. In the present matter, there is no doubt that there is delay on the part of the Appellant. The Appellant was granted leave to appeal out of time upon specic conditions. While he complied with the requirement to le the Memorandum of Appeal within seven days, he did not comply with the twenty-one-day period for ling the Record of Appeal. He thereafter led a Supplementary Record without leave and did not take the necessary steps to have the Appeal listed for hearing within the stipulated period. 35. The Appellant has sought to explain the delay principally on account of his ill health. He states that he suered a medical condition which substantially impaired his mobility and his ability to attend Court and attend to his aairs. He further states that he was admitted at Kenyatta National Hospital and that, during this period, he entrusted a condant with the responsibility of forwarding funds to his advocates. According to him, the condant failed to transmit the funds, thereby contributing to the delay. 36. I have considered this explanation. However, it is material that the explanation advanced in the present proceedings substantially mirrors the explanation which the Appellant placed before this Court in the earlier Application seeking leave to le the Appeal out of time. In that Application, the Appellant similarly relied on illness and lack of nances as reasons for his failure to le the Appeal within time. 37. Having already obtained the Court's indulgence on the basis of those circumstances, the Appellant was thereafter required to demonstrate diligence in complying with the conditions upon which the indulgence was granted. The repetition of substantially the same explanation cannot, without more, account for the subsequent period of non-compliance. 38. More importantly, the alleged illness has not been substantiated by any documentary evidence. Despite expressly relying on hospitalisation and treatment at Kenyatta National Hospital, the Appellant did not annex medical records, treatment notes, admission records or any other medical documentation https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5789/eng@2026-09-24 5

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demonstrating the nature or duration of the alleged illness and the extent to which it prevented him from prosecuting the Appeal. 39. The Court is not suggesting that illness cannot constitute a sucient explanation for delay. It plainly can, depending on the circumstances and the evidence placed before the Court. However, where illness is advanced as the principal explanation for prolonged non-compliance with Court orders, the Court is entitled to consider whether the allegation has been suciently demonstrated. In the present case, the allegation remains substantially unsupported by documentary evidence. 40. The same applies to the explanation relating to the alleged condant who is said to have been entrusted with funds for purposes of instructing counsel. No evidence has been placed before the Court demonstrating the alleged transmission of funds to the condant, the failure to transmit the same to counsel, or the resulting inability of counsel to prosecute the Appeal. 41. The burden of establishing the facts relied upon by a party lies with that party. Sections 107 and 109 of the Evidence Act place that burden upon the person who asserts the existence of a particular fact. The Court therefore cannot accept the explanation advanced merely on the basis of unsupported averments where the circumstances called for some form of corroboration. 42. That said, the Court must also bear in mind that dismissal of an appeal for want of prosecution is a drastic remedy. The fact that there has been delay and non-compliance does not necessarily mean that dismissal must invariably follow. The Court must consider whether, in the peculiar circumstances of the case, the interests of justice can still be served without shutting out the Appellant from the appellate process. 43. Article 159(2)(b) of the Constitution requires that justice shall not be delayed. This constitutional imperative is reinforced by sections 1A and 1B of the Civil Procedure Act, which require the Court and the parties to facilitate the just, expeditious, proportionate and aordable resolution of civil disputes. Litigants are therefore under a corresponding obligation to assist the Court in achieving the expeditious disposal of their matters. 44. At the same time, Article 159(2)(d) requires the Court to administer justice without undue regard to procedural technicalities. That provision does not, however, absolve litigants from compliance with Court orders or from the duty to prosecute their cases diligently. 45. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR) underscored the importance of procedural rules in the administration of justice. Procedural requirements are intended to facilitate the orderly and ecient determination of disputes and cannot simply be disregarded at the convenience of litigants. 46. In the present case, I have weighed the Appellant's failure to comply with the Court's directions against the fact that dismissal of the Appeal would nally shut him out from pursuing the challenge to the decision of the subordinate Court. I am not persuaded that, notwithstanding the Appellant's conduct, the circumstances before me are such that the ultimate sanction of dismissal is warranted at this stage. 47. The appropriate course, in my view, is to preserve the Appeal but on the clearest possible terms. The Appellant has had the benet of the Court's indulgence before and has not demonstrated the diligence expected of him thereafter. 48. The Appellant is hereby cautioned that the Court will not countenance any further delay, nonattendance or failure to comply with its directions. The responsibility of prosecuting the Appeal rests upon the Appellant and he must take all necessary steps, to ensure that the Appeal is brought to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5789/eng@2026-09-24 6

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hearing without any further delay. Any further default or non-compliance may attract the appropriate sanction, including dismissal of the Appeal. 49. I also consider it just that the Applicant should not bear the costs occasioned by the Appellant's failure to prosecute the Appeal diligently. Although the Application for dismissal will not succeed, the Applicant was compelled to move the Court by reason of the Appellant's conduct. I therefore nd it appropriate to award the Applicant costs of the Application in the sum of Kshs.50,000. 50. In the circumstances, the Court shall decline to dismiss the Appeal for want of prosecution, but shall direct that the Appeal be placed before the Deputy Registrar for purposes of giving directions towards its expeditious hearing and determination. 51. Accordingly, the Court makes the following orders: a. The Chamber Summons dated 16th September 2025 is hereby dismissed; b. The Applicant shall have costs of the Application assessed at Kshs. 50,000, payable by the Appellant within thirty days from the date of this Ruling; and c. This matter shall be mentioned before the Deputy Registrar for directions of hearing of the Appeal. DATED, SIGNED AND DELIVERED, VIRTUALLY AT MALINDI THIS 24TH DAY OF SEPTEMBER 2026. …………….………….. J. M. ONYANGO JUDGE In the presence of: Mr. Nkomenjmana for the Applicant No appearance for the Respondent. Court Assistant: Happy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5789/eng@2026-09-24 7

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