[2018] KEELC 331 (KLR)

[2018] KEELC 331 (KLR)

The court found that the appellant had complied with the requirement to file a memorandum of appeal and that the subsequent steps, including transmission of the lower court file and admission or rejection of the appeal under section 79B of the Civil Procedure Act, are internal court processes not within the...

Source-derived case information.

Citation
[2018] KEELC 331 (KLR)
Parties
Appellant: Esther Nyambura Kamau; Respondent: Catherine Wangari Thiga
Court
Environment and Land Court
Court Station
Environment and Land Court at Muranga
Jurisdiction
Kenya
Case Number
Environment and Land Appeal 2 of 2018
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Outcome
application dismissed with costs to the appellant
Judges
BC Koech
Legal Topics
Appeal Dismissal, Want of Prosecution, Record of Appeal, Res Judicata, Leave to Appeal, Case Management
Source Language
en
Civil Procedure Land and Property Appeal Dismissal Want of Prosecution Record of Appeal Res Judicata Leave to Appeal Case Management

Source-derived case record

Summary, issues, holding and outcome

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Parties

Esther Nyambura Kamau

Appellant

Catherine Wangari Thiga

Respondent

Procedural Posture

Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution

Legal Issues

  1. 1 Whether the appeal can be dismissed for want of prosecution under Order 42 rule 35(2) of the Civil Procedure Rules.
  2. 2 Whether the appellant is to blame for the delay in prosecuting the appeal.
  3. 3 Whether the appeal is incompetent for want of leave to appeal against a preliminary objection.

Ratio Decidendi

The court found that the appellant had complied with the requirement to file a memorandum of appeal and that the subsequent steps, including transmission of the lower court file and admission or rejection of the appeal under section 79B of the Civil Procedure Act, are internal court processes not within the appellant's control. Since these procedures had not been completed, the appellant could not be blamed for failing to set the appeal down for hearing. Consequently, the respondent's application to dismiss the appeal for want of prosecution was premature and without merit. The court also noted that the registrar had not listed the appeal for dismissal, and directions had not been issued,...

Court Disposition

application dismissed with costs to the appellant

Orders

  • The Notice of Motion dated 16/7/17 is dismissed with costs to be paid to the appellant.
  • The Deputy Registrar is directed to call for the original file of the lower court and place it in the record of this appeal for determination as required under section 79B of the Civil Procedure Act within 30 days from the date of this ruling.