Mwarema Kaingu Mkala v Kaema Jawa Kinago & 2 Others

Rule 35 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. 2. From the onset, and by way of a brief background for purposes of context, the Appellant/Respondent herein, one MWAREMA KAINGU MKALA (hereinafter referred to as "the Appellant"), on 27th August, 2024 preferred the instant appeal against the ruling of the Learned Trial Magistrate whereby his application for temporary injunctive orders dated 25th October, 2023 was dismissed. The gravamen of the dispute between the parties revolved around the suit property measuring approximately 8.0674 hectares, subdivided and numbered as Land Parcels Numbers Mwavumbo/409 and Mwavumbo/804 respectively, which was compulsorily acquired by the 3 rd Respondent, the National Land Commission, for purposes of the Mwache Multi-Purpose Dam Project, and in respect whereof compensation monies were apportioned between the Appellant and the 1st Respondent and duly gazetted vide Legal Notice No. 11262 of 25th August, 2023. 3. Significantly, and for completeness of the record, this Honorable Court, vide its ruling delivered on 28 th May, ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 2 of 23

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2025, granted conservatory orders by way of injunction barring the release of any compensation monies by the 3 rd Respondent to the 1st Respondent in respect of the suit property pending the hearing and determination of the appeal. Thereafter, on 6th November, 2025, this Court issued directions on the disposal of the appeal by way of written submissions. The case by the 1st Respondent/Applicant II. 4. The Applicant sought the following orders:a) That the Court do issue an order dismissing the Appeal for want of prosecution. b) That the 1st Respondent/Applicant be awarded the costs of this Application. 5. The application is premised upon the grounds, testimonial facts and the averments made out under the supporting affidavit sworn by KAEMA JAWA KINAGO, the 1st Respondent/Applicant herein and dated the 17 th April, 2026. The deponent averred as follows that: a) He was the 1st Respondent and the Applicant in this Application hence competent to make this affidavit. ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 3 of 23

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b) The Appellant/Respondent preferred an Appeal on the 27th August, 2024 but had failed to file submissions and serve it the Deponent’s advocates on record as per the directions of the Honourable court issued on 6 th November, 2025 to set the Appeal down for hearing. c) It was now more than one and a half (1 1/2) years since the Appeal was filed and more than five months since directions issued but no action had been taken by the Appellant/Respondent. d) It was clear that the Appellant/Respondent had not taken an action on the Appeal from the time directions were issued. e) He was left with no option but to apply for the dismissal of the Appeal as the matter had been in court for more than one and a half years so that the matter could be finalized. f) From the foregoing, it was obvious that the Appellant/Respondent had lost interest in the Appeal. ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 4 of 23

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g) It was only fair that the Appeal be dismissed for want of prosecution with costs to bring the Appeal to an end. h) It was in the interest of justice that the Appeal be dismissed. 1st i) The Respondent/Applicant was highly prejudiced by the unexplained pendency of the Appeal as it kepts the main suit pending and therefore the pendency of the Appeal. Therefore, it would be just and equitable to have the Appeal herein dismissed for want of prosecution. j) He swore this affidavit in support of the application, the Application. III. The response by the Appellant/Respondents 6. Despite being duly served with the Appellant neither filed a Replying Affidavit nor Grounds of Opposition in response thereto. Nonetheless, the Court takes cognizance of the fact, discernible from its own record, that the Appellant filed his written submissions on the substantive appeal dated 14th April, 2026 through the Law Firm of Messrs. Mburu Kariuki & Company Advocates, ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 5 of 23

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being a period of approximately five (5) months after the lapse of the timelines donated by the directions of 6 th November, 2025, and a mere three (3) days before the instant application was taken out. The Court shall revert to the significance of this fact in the course of its analysis hereinbelow. IV. Submissions. A. The Written Submissions by the Plaintiff 7. The Applicant, through the Law Firm of Messrs. Oduor Siminyu & Company Advocates, filed his written submissions dated 17th April, 2026. Mr. Siminyu Advocate anchored the application on the provision of Order 42 Rule 35 (1) of the Civil Procedure Rules, 2010, He noted the appeal was filed on 27th August, 2024; that directions were issued by this Honorable Court on 6 th November, 2025 granting the parties timelines within which to file and serve their respective written submissions. In the course of time, the said timelines lapsed long ago without compliance by ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 6 of 23

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the Appellant and without any application seeking leave for enlargement of time. 8. The Learned Counsel submitted that the operative word under the provision of Order 42 Rule 35 of the Civil Procedure Rules, 2010 is "Shall", denoting a mandatory obligation, and that a party seeking the dismissal of an appeal for want of prosecution need only demonstrate the lapse of the three (3) months statutory threshold stipulated thereunder, coupled with inordinate and inexcusable delay in the circumstances of the case. In buttressing this proposition, the Counsel placed reliance on the case of: “Kebirigo Tea Factory – Versus - Kaleni Nyanchoka Ainya, H.C.C.A No. 180 of 2006’, where Musinga, J. (as he then was) while dismissing a similar appeal held:"I find that there has been inordinate delay on the part of the Appellant and that delay has not been explained and is therefore inexcusable." 9. The Learned Counsel further averred that orders of the Court were never issued in vain. They must be obeyed; that the Appellant deliberately elected to disobey the directions of the Court issued on 6th November, 2025; and that the ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 7 of 23

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conduct of the Appellant constituted an outright abuse of the court process calculated to defeat the ends of justice, contrary to the overriding objective enshrined under the provision of Section 3A of the Civil Procedure Act, Cap. 21. To support this argument, the Counsel cited the decision of the Court of Appeal in “Framwa & Joymu Distributors – Versus - Kenya Breweries Limited, C.A No. 241 of 2005”, where the Learned Judges of Appeal expressed themselves as follows:"In this regard we consider that the exercise of the discretion by the superior court was in line with the overriding objective in that it expeditious disposal of the suit. resulted in the In of the view foregoing and taking into account the conduct of the Appellant (and it’s legal advisors) we are satisfied that the Learned Judge cannot be faulted in the manner she reached her decision to dismiss the Appellant’s suit for want of prosecution." 10. In conclusion, the Learned Counsel asserted that the law aids the vigilant and not the indolent — vigilantibus non dormientibus jura subveniunt — and that no justifiable explanation had been proffered by the Appellant for the ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 8 of 23

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delay. He urged the Court to allow the application with costs. B. The Written Submissions by the Appellant/Respondent 11. As already indicated hereinabove, the Appellant did not file any response or written submissions in opposition to the instant application. The application therefore stood unopposed on the record. However, the Appellant belatedly filed his substantive submissions on the appeal, which the Court was enjoined to consider in the exercise of its discretion. V. Analysis & Determination 12. The Honorable Court has keenly considered the Chamber Summons application, the grounds on its face, the Supporting Affidavit and the annextures thereto, the written submissions, the cited authorities by the Learned Counsel for the Applicant, the entire record of the appeal, the relevant provision of the Constitution of Kenya, 2010 and the applicable law. ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 9 of 23

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13. For the Court to arrive at an informed, fair, just and reasonable decision, it has framed the following four ( 4 ) salient issues for its determination:a) Whether the Chamber Summons application dated 17 th April, 2026 by the 1st Respondent/Applicant is merited. b) Whether the Appeal filed on 27 th August, 2024 should be dismissed for want of prosecution under the provision of Order 42 Rule 35 of the Civil Procedure Rules, 2010. c) Whether the parties herein are entitled to the reliefs sought. d) Who should bear the costs of the application? ISSUE No. a). Whether the Chamber Summons application dated 17th April, 2026 by the 1st Respondent/Applicant is merited, that is to say, whether the Appeal filed on 27th August, 2024 should be dismissed for want of prosecution under the provision of Order 42 Rule 35 of the Civil Procedure Rules, 2010. 14. Under this Sub – heading, the Honourable Court will examine the substratum raised by the 1 st Respondent/Applicant – striking out the Appeal for want of prosecution. ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 10 of 23

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15. The power and Jurisdiction of the Court to strike out pleadings is discretionary. It must be exercised judicially and be used sparingly and cautiously. That is the case as it is exercised without the court being fully informed on the merits of the case through discovery and oral evidence. The leading and still very relevant case on this front was that of:- “D.T. Dobie & Company (Kenya) Limited – Versus - Muchina [1982] KLR 1”. Madan JA, stated:“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.” 16. Further to that, in the case of: - “Co - operative Merchant Bank Limited – Versus - George Fredrick Wekesa (Civil Appeal No. 54 of 1999)” the Court of Appeal stated:- ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 11 of 23

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“Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the Appellant’s defence cannot be said to present a plain vexatious case defence, of or a frivolous, scandalous, one likely prejudice, to embarrass or delay the expeditious disposal of the Respondent’s action or which is otherwise an abuse of the process of the court.” 17. Additionally, in the case of: - “Yaya Towers Limited – Versus - Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000)” the same court expressed itself thus: “A Plaintiff (defendant) is entitled to pursue a claim in our courts improbable Defendant however his implausible chances (Plaintiff) can of and however success. Unless the demonstrate shortly and conclusively that the Plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial..........It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 12 of 23

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ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved.” 18. The provision of Article 159 (2) (b) of the Constitution of Kenya, 2010 pertains to the import of expeditious disposal of suits once they are filed and it enjoins the court in exercising its judicial authority to ensure that justice shall not be delayed 19. The law concerning dismissal of an appeal for want of prosecution is contained in the provision of Order 42 Rules 35(1) & (2) of the Civil Procedure Rules, 2010 which provides as follows:Unless within three months after the giving of directions under Rule 13 the appeal shall be set down for hearing, the respondent shall be at liberty to either set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution. If within one year after 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. ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 13 of 23

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20. In the case of:- “Njai Stephen - Versus - Christine Khatilala Andik Civil Appeal No. 248 of 2017 “ the court summarized the law on appeals under the provision of Order 42 Rule 35 of the Civil Procedure Rules, 2010 as follows:“Order 42 Rule 35 of the Civil Procedure Rules, 2010 envisages two scenarios for the dismissal of an appeal for want of prosecution. The first scenario is when an appellant fails to cause the matter to be listed for directions under the provision of Section 79B of the Civil Procedure Act, Cap. 21 as is envisaged in Order 42 Rule 11 of the Civil Procedure Rules, 2010. The second scenario is that if after service of Memorandum of Appeal the appeal would not have been set down for hearing, the registrar shall on notice to the parties list the appeal before the judge for dismissal. 21. Applying the above principles to the instant case, the Court makes the following findings. In the first place, it is common ground that this Honorable Court issued directions on the disposal of the appeal on 6 th November, 2025. It is equally not in dispute that by 17 th April, 2026, when the instant application was taken out, a period of ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 14 of 23

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well over five (5) months had lapsed — far in excess of the three (3) months contemplated under the provision of Order 42 Rule 35(1) of the Civil Procedure Rules, 2010. To that extent, therefore, the statutory threshold for the invocation of the said provision was duly met, and the application is properly before the Court. The Court so finds and holds. 22. In the second place, the Court finds that the delay by the Appellant in complying with the directions of this Court on 6th November, 2025 was neither trivial nor satisfactorily explained. The Appellant elected not to respond to the instant application at all. No affidavit was placed before the Court explaining the delay, and no application for enlargement of time was ever made. Such indolence and casual approach to litigation is deprecable in the strongest terms. This Court on an umpteenth times graphically stated that Court orders and directions are not issued in vain. They are not proposals, cosmetics nor a formalities. They are solemn commands to be obeyed by all parties, and litigants who treat them with disdain do so at their ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 15 of 23

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own peril. To this extent, the Court entirely agrees with the sentiments of the Learned Counsel for the Applicant. 23. Be that as it may, in the third place, the Court cannot shut its eyes to the material fact, evident from its own record, that the Appellant filed his written submissions on the substantive appeal dated 14 th April, 2026 — three (3) days prior to the filing of the instant application. In other words, by the time the Applicant moved the Court seeking the dismissal of the appeal for want of prosecution, the Appellant, albeit belatedly and without the leave of the Court, had already taken the very step whose omission founded the application, and the appeal was, for all intents and purposes, ripe for setting down for hearing and determination. While this does not sanitize the Appellant’s indolence, it substantially dilutes the contention that the Appellant has lost all interest in prosecuting the appeal. 24. In the fourth place, on the question of prejudice, the Court has anxiously weighed the competing interests of the parties as commanded by the test set out in “ Ivita Versus -Kyumbu (Supra)” case. Admittedly, the Applicant is prejudiced by the continued pendency of the appeal, ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 16 of 23

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which keeps the compensation monies in respect of Land Parcels Numbers Mwavumbo/409 and Mwavumbo/804 remain and being frozen by dint of the conservatory orders of this Court issued on 28th May, 2025, and the proceedings before the trial court in abeyance. However, the said prejudice is one of delay simpliciter, which is capable of being remedied, first, by an order of costs, and secondly, and more effectively, by stringent directions for the expeditious disposal of the appeal. Conversely, the prejudice that would befall the Appellant were the appeal to be dismissed at this juncture would be grave and irreversible: he would be driven away from the seat of justice on account of a procedural default, in a matter touching on compulsorily acquired ancestral land and substantial compensation monies, and at a point when the appeal is already fully ready for determination. The substratum of the appeal remains intact and preserved by the conservatory orders; the evidence, being documentary in nature and contained in the Record of Appeal, has suffered no attrition; and justice can still manifestly be done to both parties despite the delay. ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 17 of 23

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25. In the fifth place, the Court is alive to the judicial policy, consistently affirmed by the superior Courts, that the discretion to dismiss for want of prosecution should lean towards sustaining rather than terminating litigation where the ends of justice so permit. Indeed, in the case of “Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium – Versus - M.D. Popat & Others (2016) eKLR”, the Court of Appeal observed that dismissal for want of prosecution is not a mere punitive tool but a remedy of last resort to be applied where the delay renders a fair trial impossible or occasions injustice incapable of compensation. That is not the case here. The interest of justice tilts in favour of the appeal being heard and determined on its merits, expeditiously, under strict timelines, with the Appellant bearing the costs occasioned by his own indolence. 26. The upshot of the foregoing analysis is that, whereas the statutory threshold under Order 42 Rule 35(1) of the Civil Procedure Rules, 2010 was met and the Appellant’s dilatory conduct stands condemned, the justice of the case does not warrant the drastic and draconian remedy ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 18 of 23

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of dismissal of the appeal. As the English phrase goes, it will be a case of handing the Appellant “….the Second bite at the Cherry”. The Chamber Summons application dated 17th April, 2026 is therefore declined, but on terms as to costs and strict compliance directions as shall appear in the final disposition hereof. Thus, the Court so finds and holds. ISSUE No. b). Who should bear the costs of the application. 27. It is now well established that the issue of Costs is a discretion of the Court. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. By event it means the results or outcome of the legal action or proceedings. See the decisions of Supreme Court “Jasbir Rai Singh – Versus - Tarchalan Singh (2014) eKLR” and Cecilia Karuru Ngayo – Versus – Barclays Bank of Kenya Limited, (2014) eKLR”. ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 19 of 23

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28. In the case of:- “Hussein Muhumed Sirat – Versus Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 29. In the instant case, although the application has been declined, it was wholly precipitated by the indolence, inaction and non-compliance of the Appellant with the directions of this Court issued on 6th November, 2025. The Applicant cannot be faulted for approaching the Court. It is only just, fair and equitable, therefore, that the Appellant bears the costs of the application in any event. VI. Conclusion & findings 30. In conclusion, and flowing from the elaborate analysis and reasoning to the framed issues hereinabove, the Honorable Court proceeds to make the following final orders: a) THAT the Chamber Summons application dated 17th Respondent/ ELCLC E012 of 2024 April, 2026 Applicant HON. JUSTICE L.L NAIKUNI by the seeking 1st the Page 20 of 23

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dismissal of the Appeal for want of prosecution be and is hereby declined. b) THAT for the expeditious disposal of the appeal, the Appellant’s written submissions dated 14th April, 2026 be and are hereby deemed as duly filed and properly on record, upon payment of the requisite Court fees, if not already paid, WITHIN SEVEN (7) DAYS from the date of this Ruling. c) THAT the 1st Respondent/Applicant and, if so advised, the 2nd and 3rd Respondents, be and are hereby granted twenty one (21) days from the date of this Ruling to file and serve their respective written submissions on the appeal, if any. d) THAT the appeal be and is hereby set down for mention on 5th November, 2026 for purposes of confirming full compliance and fixing a Judgment date thereof. ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 21 of 23

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e) THAT for the avoidance of doubt, the conservatory Honorable orders Court on issued 28th by this May, 2025 barring the release of the compensation monies shall remain in full force pending the hearing and determination of the appeal. f) THAT the costs of the application be awarded to the 1st Respondent/Applicant to be borne by the Appellant/Respondent in any event. IT IS ORDERED ACCORDINGLY. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ………30TH ………. DAY OF ………..SEPTEMBER………….2026 ……………………………… HON. MR. JUSTICE L.L NAIKUNI, ENVIRONMENT & LAND COURT AT KWALE. ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 22 of 23

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Ruling delivered in the presence of: a) Mr. Daniel Disii, the Court Assistant. b) M/s. Nduku Advocate for the Appellant/Respondent. c) Mr. Siminyu Advocate for the 1st Respondent/Applicant. d) No appearance for the 2nd and 3rd Respondents. ELCLC E012 of 2024 HON. JUSTICE L.L NAIKUNI Page 23 of 23

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