[2017] KEELC 2088 (KLR)
The court found that the appellants failed to provide a satisfactory explanation for not prosecuting the appeal within the prescribed period. Despite being given notice to show cause, only the 1st appellant appeared and his explanation—that he had left the matter to his advocates—was not sufficient to justify the...
Source-derived case information.
- Citation
- [2017] KEELC 2088 (KLR)
- Parties
- Appellant: Bernard Mbiuki Gatumu; Appellant: Lawrence Kamundi Gichunge; Respondent: Catherine M. Kamundi; Respondent: Dominic K. Gichunge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 73 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Court Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Mbiuki Gatumu
Appellant
Lawrence Kamundi Gichunge
Appellant
Catherine M. Kamundi
Respondent
Dominic K. Gichunge
Respondent
Procedural Posture
Civil Appeal / Ruling on Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35(2) and Order 17 Rule 2 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the appellants failed to provide a satisfactory explanation for not prosecuting the appeal within the prescribed period. Despite being given notice to show cause, only the 1st appellant appeared and his explanation—that he had left the matter to his advocates—was not sufficient to justify the delay. The court, therefore, exercised its discretion under Order 42 Rule 35(2) and Order 17 Rule 2 of the Civil Procedure Rules to dismiss the appeal for want of prosecution, as no cause was shown to the satisfaction of the court.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC [CA] CASE NO 73 OF 2017
FORMERLY MERU ELC [CA] CASE NO. 217 OF 2013
BERNARD MBIUKI GATUMU...………………………......1ST APPELLANT
LAWRENCE KAMUNDI GICHUNGE………………...…2ND APPELLANT
VERSUS
CATHERINE M. KAMUNDI…….……….............................1ST RESPONDENT
DOMINIC K. GICHUNGE………………............................2ND RESPONDENT
RULING
1. Order 42 Rule 35(2) states as follows:-
(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.
2. Order 17 Rule 2 of the Civil Procedure Rules states as follows:-
(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
3. Notices were issued for parties to come to court to show cause why the appeal should not be dismissed for want of prosecution.
4. Notice had also been issued in terms of Order 42 Rule 35(2) that the appeal had been listed for dismissal before me.
5. Only the 1st Appellant Lawrence Kamunde Gichunge came to court. He told me that he had left prosecution of this appeal to his advocates.
6. I find that no satisfactory explanation has been proffered to me as to why this appeal should not be dismissed.
7. In the circumstances, this appeal is dismissed.
8. I issue no order as to costs.
9. It is so ordered.
Delivered in open court at Chuka this 25th day of July, 2017 in the presence of:
CA: Ndegwa
Lawrence Kamundi Gichunge - Appellant
P.M. NJOROGE
JUDGE